REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
November 5, 2012 (Monday)
GENERAL PRINCIPLES
Bar Question: Distinguish Remedial Law from
Substantive Law.
A: Substantive law creates, defines and
regulates right and duties concerning life liberty
or property, which when violated gives rise to a
cause of action. Example, criminal law or rpc.
That is an example of substantive law because it
creates, defines and regulates right and duties
concerning life liberty or property, which when
violated gives rise to a cause of action.
In contrast, remedial law prescribes the
methods of enforcing those rights and obligations
created by substantive law, by providing a
procedure of system for obtaining redress for the
evasion of rights and violations of duties and by
prescribing rules as to how suits are filed, tried
and decided by the courts.
In short, substantive law tells us what are
our rights, our duties. And if violated, remedial
law or procedural law tells us the methods on
how to enforce our rights. For example, sa
substantive law, Family Code, sa FC, we learned
that husband and wife have obligations to each
other for support. Also parents has obligation to
support their children. For example ang imo bana
sakto trabaho, nya ikaw asawa maskiton, so
istambay lang ka balay. Advised by doctor to stay
at home. Imo bana nanarabaho, pero problem
kay imo bana wa nay hatagay nimo sustento.
Unsay buhaton nimo? You notice that you’re right
to support is violated. Asa man ka ana na
balaora? Na ang imo bana naay katungod for
support? Sa Family Code. So unsaon pag-enforce
you look at the Remedial Law, you look for the
Rules of Court. So, you will file a complaint
against your husband for support. Asa man nah?
Civil Procedure. Remedial Law.
So, ang substantive law defines our right,
tells us our rights and obligations, duties, while
remedial law tells us the procedure, the methods
on how to enforce our rights when these are
violated.
Now, what are sources of remedial
law, adjective law? Main source sa remedial law,
rules of court, we have BP 129, another, special
laws, example sa criminal law kanang VAWC, naa
may remedial alw diha na naghisgot na ang
cases involving VAWC anha ra jud ihusay or file
sa RTC. Remedial man nah. Then sa Drugs, RA
9165, naa pud remedial law diha. Naay provision
regarding remedial law. Diha na balaod naghisgot
man na sa RA 9165, all violations of drug cases
diha ra sa RTC. Kana BP 129 amo na siya gitawag
na Judiciary Act. Naa diha sa BP 129 ang
jurisdiction sa different courts, from Supreme
Court up to lowest court or first level court. BP
129 as amended.
The Supreme Court has the
constitutional power to promulgate rules
regarding pleadings, practice and
procedures. Regarding the enforcement of our
rights, it is the SC that has the power to
promulgate rules regarding in the enforcement of
these rights, regarding pleadings, practice and
procedures. We have learned Writ of Amparo.
Kinsa man nag promulgate regarding rule son
Writ of Amparo? It is the Supreme Court. Write of
Habeas Data. Kani sila all about enforcement to
of our rights. Right to life, liberty and property.
The Supreme Court has the constitutional power
to promulgate rules regarding pleadings, practice
and procedures. It includes protection of
constitutional rights. In fact dunay ruling ani ang
SC. In the case of Echegaray vs. DOJ Secretary,
January 19, 1999, the SC said that Congress has
no power to repeal, alter or supplement rules
concerning pleadings, practice and procedures as
such power given to it by the 1935 and 1973
Constitution has been taken away from it by
1987 Constitution.
So mao na ang view sa SC nga as far as
promulgation of rules regarding pleadings,
practice and procedure, matud pa sa SC that it is
the exclusive power of SC, and the Congress has
no power to repel, alter, or supplement rules
concerning pleadings, practice and procedure.
PERO, ubang legal experts, dili 100% in
agreement with SC. Matud pa na even naa
provisions a Cosntitution na tanan rules
regarding pleadings, practice and procedure,
exclusive nah sa SC. Pero there are still instances
Congress enacted laws regarding practice and
court procedures. Example given is the Speedy
Trial Act. Kana is something to do with procedure
in court. This act was enacted by the Congress.
Mao nah basis sa ubang legal experts in saying
dili jud totally exclusive sa SC ang pag-
promulagte sa rules regarding pleadings, practice
and procedure.
What are the limitation regarding the
power of the SC to promulgate rules
regarding pleadings, practice and
procedure.
1. The rules shall provide a simplified
and inexpensive procedure for the
speedy disposition of cases.
2. The rules shall be uniform in all
courts of the same grade.
3. The rules shall not diminish, increase
or modify substantive rights. (Naa ni
sa Constitution Article 7 or 8)
The power of the SC to promulgate rules
regarding pleadings, practice and procedure,
comes with it the power to suspend procedures.
In other words, there are instance, that the SC wil
suspend the Rules of Procedure. Example, ato
nahibaw-an sa Rules of Court na ang period to
appeal sa civil cases is 15 days. But if you look at
jurisprudence, there are instances that the SC
allowed appeal even if the notice of appeal is
filed beyond the 15-day period, reason of SC is in
the interest of justice. Another naa sa Rule sof
Court na a party can file only one motion for
reconsideration, pero didto sa SC pwede kaduha.
But you have permission from SC. Like 16 cities
di ra kaduha ni-file ug motion for
reconsideration, think ka 3 or 4 na to. These are
the instances where the SC may suspend the
rules, according to the SC. Pero, general rule, in
compliance with the provisions of the rules of
court is the rule. Non-compliance or suspension
of the rules is the exception. So, compliance with
the procedural rules is the general rule.
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Abandonment thereof can only be done in the
most exceptional cases. If what nah exceptional
cases, SC ra pud nah nakahbaw. So, there are
instances that procedural rules shall be
suspended or sacrificed in favor of substantial
justice or in favor of substantive law.
Classification of Courts in the Philippines
a. Our courts are classified into Courts
of General Jurisdiction and Courts of
Limited Jurisdiction.
Kaning courts if general
jurisdiction mao ning courts that have the
power to take cognizance of al kinds of
cases u less otherwise provided by the
law or rules. General rule, kung court of
general jurisdiction, tanan kaso pwede
nimo except when that is excluded by
rthe law or by the rules of court.
Example, RTC.
We have also courts of limited
jurisdiction. These are courts that have
no power to decide their own jurisdiction
and can only try cases permitted by
statute. Example, First Level Courts or
Municipal Trial Courts.
b. Duna pud tay Courts of Original
Jurisdiction, these are courts in which
actions or cases may originally be filled.
Courts of Appellate
Jurisdiction. Courts which have the
power to review on appeal the decisions
or order of a lower court.
c. We have also superior courts,
inferior or lower courts.
d. Sa ubang nasud, naay Court of
Record and Court of No Record.
Kanidato naa ta court of no record, we
called Justice of the Peace. Mag-hearing
wala sila record-record. If magdecide,
walay decision. Husayon ra ni. Pili ra ang
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
justce kinsay daog, basta lang. We have
no courts of no record karon. All courts in
the Philippines from lowest to highest re
required to record all the proceedings.
e. Constitutional Court and Statutory
Courts. Sa Constitution, duha ra ka
korte, SC and Sandiganbayan. Although
Sandiganbayan wa nah g-create sa
Constitution but gi-mandate ra sa
Constitution. Because in reality
Sandiganbayan was created by a law, not
by Constitution. So, Sandiganbayan could
just be considered constitutionally
mandated court.
Other courts are created by law
called statutory courts. BP 129. Unsay
exmple statutory courts, courts of
appeals, rtc, mtc, mctc. Kahbaw na mo
usa meaning ana.
MTC – Municipal Trial Court
MCTC – Municipal Circuit Trial Court
MTC vs. MCTC
MTC sa lungsod/towns ni. MCTC, naay mga
smaller towns, duha ka lungsod peros usa ra ka
korte.
MTCC – Municipal Trial Court in Cities. Sa mga
cities ni.
MeTC- Metropolitan Trial Court. Wa ta ani Cebu.
Tua ra ni siya sa Metro Manila.
Unsa naa Cebu is MTCC, Muncipal Trial Court in
Cities.
*Among legal circles, first level courts
tawag ani nila.
Then we have:
RTC -
CA -
SC -
Also, Sandiganbayan
Court of Tax Appeals (CTA)
Didto sa Mindanao naa sila Sharia Courts.
Part gihapon nah siya sa judiciary system. Sharia
Appellate court, district court and circuit court.
Ang jurisdiction sa Shara Court reagarding
property and family realatiosn among Muslims.
What about court marshal, part of the
judiciary system? Mga members if the armed
forces if they committed crimes in the
performance of their judies. NO. It’s part of the
executive. It is attached to the office of the
president being the commander in chief of the
armed forces of the Philippines.
What about sa labor? Labor arbiter? Part
of the judicial system? No, they belong to
executive, in NLRC. Quasi-judicial.
f. We have also concurrent jurisdiction.
Meaning, two or more courts can take
cognizance on such case.
g. What do you mean by delegated
jurisdiction? This refers to the grant of
authority or jurisdiction to first level
courts to hear and determine cadastral
and land cases in certain conditions. Naa
sa BP 129 na ang mga first level courts
pwede maka hear ug cadastral cases or
land registration. This is an example of
delegated power. Because as a general
rule first level courts do not have power
to try and hear land registration cases.
Special jurisdiction. This refers to the
power if first level courts to hear and decide
petitions involving asking for the issuance of writ
of habeas corpus. General rule, petition for writ
of habeas corpus ang naay power ana RTC, CA ug
SC. But in the absence of any RTC, example
tanan RTC judges nag seminar tua sa manila
unya naay petition for issuance of writ of habeas
corpus na gifile, pwede ang first level court. In
the absemce of any rtc judges, pwede nah siya.
Gitawag pud ni siya special jurisdiction, known as
interlocutory jurisdiction.
Asked in the bar several times: How do
you distinguish jurisdiction and venue?
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Jurisdiction refers to the power or
authority of the court to hear and determine
case, whereas venue refers to the place where
the case is to be heard or tried.
Jurisdiction is a matter of substantive law,
while venue is of procedural law.
Jurisdiction is fixed by law and cannot be
conferred by the parties, while venue may be
conferred by the act or agreement of the parties.
Take note: that as far as criminal cases are
concerned, venue does not only determine the
place where criminal case is to be filed, but it
also determines jurisdiction of a court.
What do you mean by exercise of
jurisdiction? Distinguish jurisdiction from exercise
of jurisdiction. Also asked in the bar several
times.
Jurisdiction is the authority of the court to
decide a case, and where there is jurisdiction
over the person, and the subject matter, the
decision of all other questions arising from the
case is considered an exercise of jurisdiction.
What is the difference of error of
judgment and error of jurisdiction?
Error of judgment is one which the court
may commit in the exercise of its jurisdiction. It
includes error of procedure or mistakes in courts
findings.
Error of jurisdiction is one where the act
complained of was issued by the court without or
in excess of is jurisdiction or with grace abuse of
discretion. It means the court has no jurisdiction
over the case or if it has, the court acted in
excess of its jurisdiction or with grace abuse of
jurisdiction(murag ‘discretion’ ni).
In error of judgment, the decision there is
not void. It can be appealed. It can be corrected
by appeal. For example a court has jurisdiction fo
the case but you disagreed with the finding of the
court, you may file an appeal to high court. The
decision of the court is not void but it can be
corrected by appeal, and not by petition for
certiorari. Pero if ang korte wa jud jurisdiction,
then the decision there is void and if you want to
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
question the decision of the court, you can file a
petition for certiorari.
What are the elements or requisites
for the exercise of jurisdiction?
1. Courts must have jurisdiction over the
plaintiff or petitioner. How can a court
acquire jurisdiction over the plaintiff? The
court can acquire jurisdiction over the
plaintiff by the filling of the complaint or
petition or any initiatory pleading before
the court by the plaintiff or petitioner. Wa
kaayo prob ani ka nig-file sa kaso you are
submitting yourself to the jurisdiction of
the court.
Another element is, jurisdiction over the
defendant or over the respondent. How
can the court acquire jurisdiction over the
defendant or over the respondent? Two
ways: 1. By voluntary appearance of the
defendant or respondent. 2. By the
proper service of summons. Take note of
the word “proper”. Coz if it is improper
service of summons, the court will not
acquire jurisdiction over the person of the
defendant.
- Jurisdiction over the parties.
2. Then another is, jurisdiction over the
subject matter. This is conferred by law.
In other words it is the law that provides
which court has jurisdiction over this
matter. Jurisdiction over the subject
matter cannot be subjected to agreement
by the parties. So for example, you file an
action to collection for sum of money and
ang iyahang amount P200,000. Asa na
court? Ari ra sa first level. Kay kung sa
RTC, that court has no jurisdiction. Gi-uns
apagkahbaw na adtomjud file sa first
level? Naa sa balaod BP 129 as amenden.
Conferred by law.
3. Jurisdiction over the res. When you say
res, it refers to the property or the thing
or to the status, right or a particular fact.
How can the court acquire jurisdiction
over the res or over the property? This is
acquired by the actual or constructive
seizure by the court of the thing in
question. Or by provision of law. Talking
bout status, this is by provision of law.
4. Another one, jurisdiction over the issues.
Although uban authors wa ni gi-apil. This
is determined and conferred by the
pleadings filed in the case by the parties.
So when a court tries or hears a case (we are
talking here of civil cases), the court must have
jurisdiction over the parties, over the subject
matter and over the res.
Is there a case that there is no defendant or
respondent?
Yes, naa. Most of these cases that have no
respondent are called special proceedings.
Example, petition for change of a name. No
respondent.
Are there cases that have no res? Yes, there
are. Example, collection for some of money. If
pure ra paningil. Unsa may res diha. Wa may
property diha na i-acquire jurisdiction sa
court? Wala.
Repeat, in case file in court, all those
elements for the exercise of jurisdcition must be
present. So pananglitan, you file collection of
sum of money. Kiha nimo Koreano, tourist ra,
nangutang siya nimo. After huwan uli siya Korea.
Unsaon acquire jurisdiction over the person?
Publication is only available when the defendant
is a non-resident alien and the case would affect
his statust or property in the Philippines. Kung wa
siya property in the Philippines, you can’t serve
summons by publication. Unsa man buhaton
nimo naa siya property here sa Philippines? Imo
lang to siya ipa-attach. In that case, you can now
serve summons by publication.
Now, we have learned that jurisdiction of
the court over the subject matter is conferred by
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law. How can you determine that the court has
jurisdiction over the case? Although jurisdiction is
conferred by law but if there is already a case
filed in court, you can determine whether the
court has jurisdiction over the case through the
allegations in the complaint. For example,
collection for sum of money. Ang complaint ni-
allege defendant nakautang 500,000. Asa file
RTC. Kay more than 300,000. Suppose in the
answer of the defendant, he admitted obtained a
loan, pero admit only 200,000 and ask for the
dismissal of the case that court has no
jurisdiction over the case. Should the case be
dismissed? NO! Because as far as jurisdiction of
the court is concerned to determine whether the
court has jurisdiction over the subject matter, the
allegations in the complaint shall prevail and not
in the allegations in the answer of the defendant.
Dili magdepede sa gi0-allege sa answer. Matud
pa sa SC, Otherwise, the jurisdiction of the court
would be dependent upon the whims and
capricious of the defendant. It should be the
complaint.
Suppose during the trial that it will be
found that indeed the obligation of the defendant
is only 200k, does the court still have
jurisdiction? And plaintiff file a case against
defendant, 500k. Pero during the trial it was
found out that the total liability is only 200k.
Does the court have jurisdiction over the case?
YES! Jurisdiction of the court of the subject
matter is determined by the allegations of the
complaint. And even it is proven during trial
thought the presentation of evidence that the
collectible amount is below jurisdiction of the
court, the court does not lodge(???) (or lost)
jurisdiction over the case. The court still retains
jurisdiction over the case.
What do you mean by doctrine of
continuity of jurisdiction or doctrine of
adherence of jurisdiction?
This means that the jurisdiction of a court
whether in criminal or civil cases once it attaches
cannot be ousted by subsequent happenings or
events. Although of a character which would
have prevented jurisdiction from attaching in the
first instance. In other words, once the court
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
acquires jurisdiction over the case, it continues or
retains the jurisdiction over the case until the
case or proceedings of the case is terminated.
Now, earlier we had said that jurisdiction
is conferred by law. And cannot be subjected to
the agreement by the parties. It cant be
acquired, or waived or diminish by any acts nor
omission by the parties. Neither can it be
conferred by acquiescence of the court. So
jurisdiction cannot be waived, unlike venue. It
cannot be subjected to the agreement of the
parties.
Pananglitan, a cases is filed in court and the
court has no jurisdiction. For example ni-file ka
ug collection for some of money 200k, ddto gifile
sa RTC, court has no jurisdiction. General rule is a
party can question the jurisdiction of the court
even on appeal for the first time. Sa ato pa kung
sa trial court wa ka ka raise sa issue on
jurisdiction, inig appeal pwede pa ka maka raise
ana. You can still be allowed to raise or question
the jurisdiction of the court. However, there are
some cases wherein the SC disallowed ampart to
question the jurso of the court on the ground of
estoppel by laches. And the landmark case is
Tijam vs. Sibunghanoy. That involves collection
case. The case is supposedly filed in the first
level court. But it was filed before the RTC. Unya
napildi ang defendant, ni appeal siya sa CA, CA
rendered decision sustained the decision of RTC.
Defendant questions jurisdiction of the court. SC
said stooped na coz tungod sa trial court
nagstambay for 15 years sa RTC ang case, sa CA
nag-stay pud didto. Unya diri na ka reklamo. The
case of Tijam is an exception to the general rule.
In the case of Lapanday Agricultural vs. Estita
449SCRA240. SC said the active participation of a
party in case is tantamount to the recognition of
that court’s jurisdiction and will bar a party from
impugning the court’s jurisdiction.
Question: Can the court acquire jurisdiction over
the person who is not impleaded in the case? Wa
gi-apil sa kaso.
Answer: General rule, dili! But by way of
exception, the court can acquire jurisdiction over
the person whose not included in the case if he
voluntary submitted himself to the jurisdiction of
the court. Such as by signing, affixing his
signature in a compromise agreement.
CIVIL ACTIONS
ORDINARY CIVIL ACTIONS
[Rules 2 to 5]
RULE 2
CAUSE OF ACTION
“Section 1. Ordinary civil actions, basis of.
← Every ordinary civil action
must be based on a cause of action.”
“Sec. 2. Cause of action, defined.
← A cause of action is the act or
omission by which a party violates a
right of another.”
What do you mean by cause of action and how
does it differ from right of action?
Cause of action refers to the wrongful act or
omission committed by the defendant in violation
of the right of the plaintiff.
Naghisgot man ta ganiha ug substantive law.
Kana substantive law mao nah maghatag sa ato
right. Ma-violated gani nah imo rights na gihatag
sa substantive law, mao nah maghatag sa imo ug
cause of action. And once there is cause of action
committed by the defendant, you will now have a
right of action.
What is a right of action?
It refers to your right to file a case or action. In
other words, there is no right of action, if there is
no cause of action.
What do you mean by action?
Kani mao ni siya lain na term sa “case”.
Action or case is one sues another for the
enforcement or for the protection of right, or
prevention or regress of a wrong.
What is the classification of actions or cases?
I- An action can be classified as a real
action or personal action. This calcification is
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something to do with subject matter.
Real action is a case which affects title to
or possession of real property or any interest
therein. Example, a case for recovery of
possession or ownership. Also, ejectment.
All other actions or actions which do not
affect title or possession of real property that is
considered as personal action. Example, action to
recover ownership over personal property.
What is the importance of knowing
whether an action is a real action or a personal
action? Kana mu-file ka annulment? Personal
action, it does not involve title or possession over
real property. Ngano important man makahabw
ta? Because it will affect venue. Tungod kay kung
real action you will file the action where the
property is located. Another, this will affect
jurisdiction. Because when it is a real property,
the jurisdiction of the court is determined by the
assed value of real property. When the assed
value of the real prop is more than 20K, RTC.
Below 20K, first level court. Whereas personal
action, depends on the amount of the claim or
demand, except when the subject is incapable of
pecuniary estimation.
Another classification is MIXED ACTION.
II - Another classification is action in rem
and action in personam, classification as to the
binding effect of the decision.
So, if the binding effect of the decision
binds only a particular person, then that would be
action personam. Look at the binding effect.
If the binding effect is binding against the
whole world and not just the parties in that case,
that would be action in rem.
What si the importance of know the
classification, in rem or personam? This will now
affect the service of summon!
Dunay tunga-tunga, dili totally in rem or
not totally personam. ACTION QUASI IN REM. This
is a case directed against a particular person but
the action or case seeks the sale or disposition of
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defendant’s property or to subject the same to a
lien or encumbrance. The case is file against a
particular purpose but the purpose of the case is
to subject the sale disposition of defendants
property, or to subject the same to a lien or
encumbrance. For example, judicial foreclosure of
mortgage. Also quieting of title, you file a case to
a particular person but purpose is to bar him
from claiming ownership to a certain property.
Kani 3 ka action. In rem, persona mug
quasi in rem, ang service of summons ani is
strictly required in action in personam! In order
for the court to acquire jurisdiction.
In action of quasi in rem and in action in
rem, service of summons upon the defendant is
not required for the court to acquire jurisdiction.
Because kung action in rem, it is enough that the
court acquired jurisdiction over the property.
Then, why is it that jurisdiction over the
defendant is not required, then why is it that
summons has to be published if the action is
quasi in rem or action in rem? Ngano kailangan
paman naay publication sa summons na di
naman kinahanglan nga mua-aquire ug
jurisdiction over the defendant? Why need to
publish summons? The purpose of publication of
the summons is not for the court to acquire
jurisdiction over the defendant, BUT for
compliance of due process.
Possible ban na ang usa ka action
matawag na real action at the same time action
in personam, (necessary ba gyud na ang real
action, action in rem siya)? YES! Yes, possible
because it involves title possession but it is only
binding against parties, and not necessarily the
whole world. Example, ejectment. When you file
an ejectment case, considering that the subject
matter involves possession of real property, that
is a real action. BUT it is a real action but it is
considered as action in personam. Why? Because
the binding effect of the deciseson is binding only
against the parties. Those aprties tahta re no
implede will not be bound by the decision of the
court. Will not tbe bound by the decision of the
court. Lahi sa in rem kay maski wa paka gi-api,
ma bound ka sa maong decision. For example,
mu-file ka action for petition for change of name
is an action in rem, binding against the whole
world. File for registration for this lot, imo title.
Land registration is an action in rem, binding
against the whole world.
Kanang classification sa kaso; real or
personal action, that is as to the subject matter.
Whereas, in personam, quasi inrem or
action in eprosnam, as to the binding effect.
So, pwede ra nah sila magsagol-sagol kay
lahi rmaan nah sila. A real action could be
considered as action in personam. A real action
could also action in rem or quasi in rem.
Jurisdiction of Different Courts
From SC –to First Level Courts- Naa sa BP
129, As Amended.
Master the jurisdiction of RTC!
And the First Level Courts!
November 9, 2012 (Friday)
JURISDICTION IN CIVIL CASES
You should master the jurisdiction of the
different courts. From the Supreme Court up to
the first level courts.
I. SUPREME COURT
The SC has original, as well as appellate
jurisdiction. As far as its original jurisdiction is
concerned, it has also original exclusive or
original concurrent jurisdiction.
Original Exclusive Jurisdiction of the
Supreme Court
a. Special Civil Action) Petitions for
certiorari, prohibition or mandamus –
(CPM). But the defendant, in order for
that to fall under the original exclusive
jurisdiction of the SC, a respondent or
defendant should be the:
1. Court of Appeals
2. Court of Tax Appeals
3. Sandiganbayan
4. Commission on Elections
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5. Commission on Audit
If the respondents in a petition for C,P,M
is not listed here, then it is not within the
exclusive jurisdiction of the SC.
What do you mean by Original Exclusive?
Original Exclusive Jurisdiction means that
it has the power to try a case instituted for
judicial action for the first time. Walay lain korte
na maka try for the first time ani na kaso. Anha
ra gyud diha.
For example, you file a petition for C or P
or M against the Court of Appeals or against the
Sandiganbayan and you file it before the Court of
Appeals the same shall be dismissed. Tungod kay
if the respondent is Sandiganbayan, it is the
Supreme Court that has Original Exclusive
Jurisdiction.
Original Concurrent/Confluent/Coordinate
jurisdiction of the Supreme Court
What do you mean by Original Concurrent?
Original Concurrent means that there are
two or more courts that has Original Jurisdiction
over the case and the case could be filed in
either courts that has Concurrent or Confluent or
Coordinate (other terms) jurisdiction.
a. With the Court of Appeals
The SC has Concurrent jurisdiction with
the Court of Appeals over petitions for certiorari,
prohibition or mandamus, provided that the
respondent would be the:
1. RTC
2. Civil Service Commission
3. Central Board of Assessment Appeals
4. NLRC
5. Other quasi-judicial agencies.
For example, you file a petition for certiorari,
or prohibition, or mandamus against the Civil
Service Commission, you can file it either with
the Court of Appeals or with the Supreme Court.
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Because as far as that action is concerned,
Supreme Court and the Court of Appeals have
Concurrent Jurisdiction. So pwede ka mu file didto
sa Supreme Court, pwede pud ka mu file sa Court
of Appeals. Pero kung ang imong gi file-an ug
petition for certiorari kay COMELEC, then you
should file it before the Supreme Court. Why?
Because if you file it in the Court of Appeals, the
Court of Appeals does not have jurisdiction over
the action. Because it is the SC that has the
Original Exclusive Jurisdiction over that action.
b. With the Court of Appeals and RTC
It has also has Original Concurrent
Jurisdiction with the Court of Appeals and RTC
over:
1. Petitions for certiorari, prohibition or
mandamus against courts of the first
level and other bodies.
For example, you want to file a petition for
certiorari against MTC. For example, dunay
decision ang MTC unya nag tuo ka ang MTC walay
jurisdiction, so mu file ka ug petition for
certiorari, asa manka pwede mu file sa petition?
Pwede ka mu file sa petition before the RTC
or CA or even before the SC. Why? These Courts
have Concurrent jurisdiction over petitions for
certiorari, prohibition and mandamus against first
level courts. But take note of the principle Judicial
Hierarchy.
What is this Principle of Judicial Hierarchy?
Although as what we have learned, the
Supreme Court, the Court of Appeals, and the
RTC, have concurrent jurisdiction over petitions
for certiorari, prohibition or mandamus against
first level courts, but you cannot just directly file
it before the Supreme Court.
Example, you are the defendant gi kiha ka sa
MTC for a case of collection of a sum of money,
for 1 million. Ang abogado na nag file kay dili
updated sa jurisdiction diri nya gi file sa MTC. Imo
gi file-an ug Motion to Dismiss, on the ground of
lack of jurisdiction. Gi deny, kay utro pud ang
Judge for example dili pud updated. So what is
your remedy? Wala man gyud jurisdiction ang
MTC.
You file a petition for certiorari, under Rule
65. Where will you file this petition against MTC?
The Supreme Court, CA, and RTC have
Concurrent jurisdiction. Kani sila dunay power.
Mag pili lang ka ani nilang 3. Muingon ka na
diretso nalang ka SC. Pwede ba na? Now, take
note of the principle of judicial hierarchy. Under
this principle of Judicial Hierarchy, the Higher
Court will not take cognizance or will not
entertain direct resort to it, unless redress cannot
be obtained in the appropriate courts. Although
the Court of Appeals and the Supreme Court
have concurrent jurisdiction, these higher Courts
will not entertain any action, unless remedy or
relief cannot be obtained by a lower Court, RTC.
Or you cannot go directly to the Supreme Court
in action wherein it has concurrent jurisdiction,
unless there are special and important
reasons (take note of the two words) clearly
stated or set out in the petition. Bisan
kanang petition for certiorari, or petition for
prohibition, or petition for mandamus ang imong
kontra first level court, bisan ug dunay
concurrent jurisdiction ang SC ana, dili ka pwede
maka diretso sa SC.
The Supreme Court will only take cognizance
over these petitions C,P,M, if there are special
and important reasons, and unless of course
gawas lang atong gi hisgutan ganiha na kung ang
imong gi kiha COMELEC, COA, CA,
Sandiganbayan - - - kana mapugos ka sa
Supreme Court ana! Because under the law, it is
only that court that has original exclusive
jurisdiction. The petition cannot be filed in any
other courts. But in other petitions within the
Supreme Court that has original concurrent
jurisdiction you cannot go directly to the
Supreme Court.
What are these special and important
reasons that could make such petitions special
and important? Only the Supreme Court can
determine.
Page | 6

So what do you call that principle? Principle
of Judicial Hierarchy. In other words, even if you
file a petition for certiorari against a first level
court, although the Court of Appeals has
concurrent jurisdiction, meaning the Court of
Appeals has the power to hear that petition, the
Court of Appeals may also invoke the principle of
judicial hierarchy.
2. Petitions for habeas corpus and quo
warranto.
c. With RTC
(1) Actions against ambassadors, other
public ministers and consuls.
Appellate jurisdiction of the Supreme Court
The SC also has appellate jurisdiction.
By this time you should be able to distinguish
between petition for certiorari as a special civil
action AND petition for review on certiorari.
- Petition for review on certiorari (Rule 45)
o The clue is REVIEW.
o A mode of appeal
- Petition for certiorari (without the word
review)
o An original action.
1. Petitions for review on certiorari against:
a. Court of Appeals
b. Court of Tax Appeals
c. Sandiganbayan
d. RTC in cases involving –
(1) Constitutionality or validity of a treaty,
international or executive agreement,
law, presidential decree, proclamation,
order, instruction, ordinance, or
regulation
(2) Legality of a tax, impost, assessment, toll
or a penalty in relation thereto
(3) Jurisdiction of a lower court
(4) Only errors or questions of law.
So pwede ka mu appeal… a case is decided
by RTC, pwede ka mu diretso sa Supreme Court,
dili naka mu agi sa Court of Appeals, pwede na
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
provided that the question or issue that is going
to be resolved by the Supreme Court involves
only questions of law. But the decision should
have been rendered by the RTC in the exercise of
its original jurisdiction, NOT appellate jurisdiction.
Kahibaw naman mo na ang RTC pwede na mu
review sa mga decisions sa first level courts. So
kung ang decision sa first level court imong gi
appeal sa RTC, then after RTC’s decision you are
still discontented with the decision pero ang
imong gi question kato nang pure questions of
law, dili na pwede imo e deritso sa Supreme
Court kay dili man cya original na gikan diha. Ang
imong ma deritso sa Supreme Court kato rang
mga decision na originally filed in the RTC and
you raise it to the Supreme Court on pure
questions of law.
II. COURT OF APPEALS
Original Exclusive jurisdiction of Court of
Appeals
a. Actions for annulment of judgments of
RTC
Original Concurrent jurisdiction of Court of
Appeals
a. With the Supreme Court
b. With the Supreme Court and the RTCC
Appellate jurisdiction of Court of Appeals
1. Ordinary appeals from:
a. decisions of RTC, through
Petition for review, except in
cases exclusively appealable to
the SC.
b. Family Courts
2. Appeal by petition for review from the
Quasi-Judicial Bodies. (See page 56 of the
Regalado book 10th edition for the
enumeration)
3. Petitions for review from the RTC in
cases appealed thereto from the lower
courts.
***
Ang Sandiganbayan, although we are
talking about Civil Cases, kung mu ingon ta
Sandiganbayan ang mu sulod sa atong huna
huna murag mga Criminal Cases unya ang
gipang kiha public officers. Pero if you look at the
law creating Sandiganbayan, ang Sandiganbayan
dunay power to hear Civil Cases. Actually,
Sandiganbayan has concurrent jurisdiction with
the Supreme Court, Court of Appeals.
What are these Civil Cases that can be filed in
the Sandiganbayan?
1. Petition for the issuance of the writ of amparo
2. Petition for the issuance of the writ of habeas
data
Asa mani gikuha ang mga jurisdiction
ani? Kinsa man ang nag sulti na ang SC dunay
original exclusive, original concurrent
jurisdiction??? Batas Pambansa 129, as
amended. Mao na siya ang nag provide sa
jurisdiction sa different courts. Because as what
we have learned last meeting, jurisdiction over
the subject matter is conferred or provided by
law.
3. Katong nag involve sa PCGG. Recovery of ill-
gotten wealth.
III. REGIONAL TRIAL COURTS
RTC also has original and exclusive. Nag tuo
mo na ang SC or CA ra ang naay original ug
exclusive? Ang RTC pud! RTC also has Original
Exclusive jurisdiction. Meaning, anha ra sa RTC ni
nimo ma file mga kasoha. Dili gani nimo ma file
didto sa SC for the first time. What are these
cases that are cognizable by RTC under its
Original Exclusive jurisdiction?
a. Actions the subject matters whereof are
not capable of pecuniary estimation.
- Kani ang daghan ug lalis. Kanang pag
determine kung kani mao ang kaso
capable or not capable ba og pecuniary
estimation. So that it will be easier for
you to determine whether the subject
matter of the case is incapable of
Page | 7

pecuniary estimation, tanawn nimo ana
ang principal reliefs or prayers asked by
the plaintiff.
- When can you say that the action or a
case is capable of pecuniary estimation?
o When the principal reliefs or
remedies sought is a claim or for
sum of money or damages. Kung
ang iya bang principal relief nag
involve ba ug money claim. If not,
that could be incapable of
pecuniary estimation and the
case is cognizable with RTC.
- Example of cases that are incapable of
pecuniary estimation:
o 1. Annulment or rescission of
contract
 If there is a prayer for damages kay ni
suffer ug moral damages, dili nana mao
ang principal relief. Ang principal relief niya
is annulment or declaration of nullity of the
contract.
o 2. Specific performance
 Example you enter into a contract for the
construction of your house unya ang
contractor wala mu tuman sa contrata and
gusto gyud nimo pugson then you file for
an action for specific performance.
 Or namalit kag awto wala gi deliver ang
awto and you want the car dealer to deliver
the car. You file for an action of specific
performance.
o 3. Injunction
 You want to enjoin another person from
doing an act. You wile an injunction.
o 4. Action for support
 Nabiktima ka sa imong uyab ug hit and run
and gi disown. You file an action for support
before the RTC.
o 5. Action to annul a declaration of
heirs
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
- You try to read these cases:
o 1. Russel vs. Vestil 304 SCRA 739
o 2. San Roque vs. Heirs of Pastor
June 20, 2000 – this case involves
expropriation.
- Katong gi file sa mga estudyante sa STC
unsa to kaso ila gi file? Diba wala manto
sila gipa graduate unya gusto gyud sila
mu paso.
b. Actions involving title to or possession of
real property or an interest therein, where
the assessed value of such property
exceeds P20,000 or, in Metro Manila,
P50,000, except forcible entry and unlawful
detainer.
- Take note: real property
- You have taken up Taxation diba? Naay gi
tawag na assessed value, zonal value,
fair market value, gross value. As far as
determination of jurisdiction of courts,
assessed value of real property.
- Asa mana makit an ang assessed value?
Naa luyo sa tax declaration sa yuta.
- Take note of the word EXCEEDS. If I am
not wrong, kanang assessed value kay
20% of the fair market value. So if the
assessed value is EXACTLY 20,000, first
level courts. But if you are in Metro
Manila, P50,000 ang iyang assessed
value. If more than that, nilabaw na ug 1
pesos, RTC.
- What case for example that would
“involve title to or possession of real
property or any interest therein”?
o 1. For example you file a case for
recovery of ownership. Inyong yuta sa Calamba
kilid sa menteryo kay gi angkon na ug lain. Gi
koral. Wala ka ka notice. Pag abot nimo nindot
na kayo ug balay. Unsa man imong buhaton? If
nangangkon siya na siya ang tag iya, you file a
complaint for recovery of ownership and
possession. Or if wala cya nangangkon na cya
ang tag iya, you file a case for recovery of
possession. Asa nimo e file? You look at your
tax declaration. Because if the assessed
value is more than P20,000, you file it in
RTC. Unya kay na deprive manka sa imong
income. So you ask for damages. Example the
assessed value is P20,000 and you ask for
damages P1million, unsa imong basehan sa
jurisdiction ana? The assessed value. Kana
imong money claims diha or gipangayo na
damages that is only incidental. Dili na siya
mao ang main cause of action nimo. Incidental
rana.
o 2. Quieting of title – you have come
across this in your Civil Law. Because that
involves title or possession of real property
- There is an Exception: “except for
forcible entry and unlawful detainer”
o You have learned that forcible entry and
unlawful detainer, called Ejectment cases, this
also involves possession. Naa ba ron nag rent
sa imong yuta unya wala nakabayad ug 3
months unya dili mu bayad kay na bankrupt
siya. So you file a case for unlawful detainer.
You want to recover possession. Dili ka maka
file sa RTC. Although Ejectment cases nag
involve ug possession, ang first level courts
ang naay Original Exclusive jurisdiction.
Although Ejectment, forcible entry and unlawful
detainer, involve recovery of possession the
same is cognizable by the first level courts, not
by RTC.
o Pero kung dili ka ka file ug ejectment kay
nag sige lang ka ug unya2x… kana rabang
ejectment cases dunay prescriptive period na 1
year. Sige lang ka ug laag2x sa Rome, kalimot
ka ug file sa case. Now you file recovery of
possession. Take note na wala siya
nangangkon, pero dili lang siya mu pahawa. So
recovery of possession ang imong e file. Asa
man nimo e file? Ejectment pa ba imong e file
ana? Dili na kay ni hupas naman. Mao na siya
ang gi tawag na Accion Publiciana. Katong
napan-os na ejectment. Recovery of
Page | 8

possession. You are going to file it either in the
MTC or RTC depending on the assessed value.
c. Actions in admiralty and maritime
jurisdiction where the demand or claim
exceeds P300,000 or, in Metro Manila,
P400,000.
- Again, ang balaod sa jurisdiction of the
different courts, B.P 129 as amended by
Republic Act 7691. Republic 7691
amended B.P 129 expanding the
jurisdiction of the first level courts.
- What do you mean by “actions in
admiralty and maritime jurisdiction”?
o Action for damages involving
shipment of goods. Magpala ka
ug goods didto sa Manila then na
damage. Mao na and admiralty
and maritime jurisdiction.
d. Matters of probate, testate or intestate,
where the gross value of the estate
exceeds P300,000 or, in Metro Manila,
P400,000.
- So kung testate or intestate, the basis of
jurisdiction is not the assessed value, but
the gross value.
e. Cases not within the exclusive
jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial
functions.
- Kaning RTC gi tawag ni siya ug Court of
General Jurisdiction. Kay duna man mga
kaso na dili exclusive jurisdiction sa uban
mga courts. Kay dili siya sa MTC, dili sa
Court of Appeals, dili sa Supreme Court,
so adto siya sa RTC. Mao na siya ang
gitawag na Court of General Jurisidiction.
f. Actions and special proceedings within
the exclusive original jurisdiction of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Court of Agrarian Relations as now
provided by law.
g. Other cases where the demand, exclusive
of interest, damages, attorney’s fees,
litigation expenses and costs, or the value
of the property exceeds P300,000 or, in
Metro Manila, P400,000.
- These are money claims. Tanawa unsa
ang gi exclude: “exclusive of interest,
damages, attorney’s fees, litigation
expenses and costs.”
- Kani siyang “other cases where the
demand” – this refers to money claims
wherein the total amount of obligation
exceeds P300,000, exclusive of interests,
walay labot ang interests, other
damages… damages example mu ingon
ka sa imong kiha na kani siya nangutang
wala naka bayad. Unya kato akong gipa
utang sa iya kay P500,000, proceeds sa
akong retirement. Tungod saw ala siya ni
bayad ni suffer ko ug sleepless nights,
mental anguish, etc. for which the
defendant should be made to pay aside
from the P500,000, he should be made to
pay another P500,000 as moral damages.
Kanang P500,000 na moral damages dili
na nimo e apil ug kwenta sa jurisdiction.
EXCEPT… Kanang amount sa damages
na imong gi pray e exclude na nimo sa
pag determine sa jurisdiction PERO kung
ang imong main cause of action is
damages gyud, e include na nimo. Pero
dili gani main cause of action ang
damages, e exclude nimo.
- “Exclusive of interests” – dunay decision
sa Supreme Court ani. When we say
exclusive of interests, sa ato pa kung
nanghuwam siya nimo ug P300,000. For
example you borrowed P300,000 payable
in 1 year. Sa sunod tuig ana, inig bayad
nimo ana, kung 12% interest, kay
mahimo na ug P312,000. Question: Asa
nimo e file?
o If you follow this literally, “Exclusive of
interest”, ari ka sa first level courts. Ang
imong tanawn ang principal amount. Pero
dunay kaso na abot sa Supreme Court. In
the case of Gomez v. Montalban, kaniadto
sa pag file aning kaso, ang jurisdiction sa
first level courts when this case was filed
was only P200,000 ra. In 2003, ang
jurisdiction sa first level courts ani kay
P200,000. Karon kay P300,000 na. In 2003,
the plaintiff filed a collection case before
RTC when the principal amount was only
P40,000. Asa man? Sa first level courts. But
the collectible amount reached P239,000
because of the monthly rate of interest of
15% as allegedly agreed by the defendant.
Plaintiff filed a case before RTC. So the
principal amount is P40,000. Now, gi kwenta
niya tungod sa agreement na 15% per
month, gi apil niya kwenta ang interest unya
pag add niya tanan na abot ug P239,000.
That amount, he filed a case in RTC.
Because at that time the jurisdiction of the
first level court is only up to P200,000. More
than 200,000 kay sa RTC. Question: Does
the RTC have jurisdiction? Because the
defendant here filed a Motion to Dismiss on
the ground of lack of jurisdiction invoking
B.P. 129 saying that the interest should be
excluded in determining the jurisdiction of
the court.
 YES. Because said interest on the loan is
a primary and inseparable component of the
cause of action, not merely incidental
thereto and already determinable at the
time of the filing of the complaint. It must be
included in the determination of which court
has jurisdiction over the case. So Gomez v.
Montalaban March 14, 2008.
 Kani man gung interest
there are two concepts of
interests:
 First concept of interest is Contractual,
meaning that is expressly stated in the
contract for the use of money. For example
Page | 9

mang huwam ka nako ug P1,000 payable in
1 month. Bisan ug dili paka mu lapas ug 1
month imo nako bayran. Unya nag sabot
ta na dunay 10% bisan ug dili paka mu
lapas ug 1 month, you are obligated to pay
10% because we agreed. Or let’s say 5%
lang. or butang nato 1%. So inig dawat
nako sa akong kwarta inig due sa imong
utang, dili rana P1,000, naa panay kapin…
katong 1%. Unsay concept anang 1%?
Unsa mana siya? That is interest for the
use, you call it Contractual. That is the first
concept of interest.
 The other concept of interest, as what you
have learned in your Civil Law, is As a
form of penalty. Bisan ug wala pata nag
sabot ug interest, dili gani ka mu bayad sa
atong gi sabotan, duna kay surcharge or
penalty. The interest there is not for the
use, but for the ….(?) Kay wala mantay
gikasabotan. Kung duna ta gi sabotan, for
example, 1% per month, then in addition
for the 1% interest which is stipulated, you
should also pay me penalty or surcharge
kay ni default manka. So duha ka klase sa
interest imong bayran: Contractual ug
katong Punitive. Because you can see in
this ruling of Gomez v. Montalban that SC
for purposes of determining the jurisdiction
of the court if the interest is Contractual
the same is taken into consideration for
purposes of determining which court has
jurisdiction over the action. Pero kung
Punitive, it would not be considered.
 Pero pag bantay mo kay dunay Bar Question
unya gi follow ni siya ang word na
“exclusive”. Meaning to say, suggested did
not include in determining the jurisdiction did
not include the interest. Obviously, that Bar
Question was asked before the ruling of
Gomez v. Montalban. Remember the ruling so
that when this question will be asked in the
bar you can justify why you include the
interest.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
- Again, [interest], damages, attorney’s
fees, litigation expenses, costs you
exclude in determining the jurisdiction of
the court, if the action is a money claim.
Pero kung ang main action is for
damages, for example gi pakauwawan ka
gi tawag ka ug Burikat infront of people.
So you file for damages. Mu ingon gani ta
damages, kwarta. Take note that your
main action there is damages, dili kanang
utang. Unsa man imong basehon ana na
imong action capable of pecuniary
estimation mana? Damages gud. Asa
nimo e file? So if the main action is for
damages, the basis in determining which
court that has jurisdiction is the amount
of the damages you are asking. So kung
nangayo ka ug P300,000, you file it in the
first level courts. Nangayo ka ug 1
million, you file it before RTC. Malipay
mansad na ang korte kung dako ka
ipangayo kay imong filing fee mag agad
man sa imong amount sa damages.
- By the way, kaning attorney’s fees,
kaning damages, except if it is your main
action, kanang damages e exclude. But
that would be included in the
computation of your filing fees.
- Then you might ask, asa manta nikuha
anang provision na “where the claim for
damages is a main cause of action or one
of the causes of action, the amount of
such claim should be considered in
determining the jurisdiction of the court.”
Diin manta ana? Na diri sa B.P 129 gi
exclude man siya. Kanang mao na
provision is provided by the Supreme
Court in its Administrative Circular
No. 09-94 June 14, 1994.
Concurrent jurisdiction of RTC with the
Supreme Court
(1) Actions affecting ambassadors, other public
ministers and consuls.
Concurrent jurisdiction of RTC with the
Supreme Court and the Court of Appeals
(1) Petitions for C, P, M
(2) Petitions for habeas corpus and quo warranto.
Appellate jurisdiction of RTC
Pwede diay ang RTC mu review? YES.
Unsa man iyang e review? All cases decided by
lower courts.
What do you mean by Doctrine of Non-
Interference or Judicial Stability? This has
been asked in the bar.
This means that courts of equal and
coordinate jurisdiction cannot interfere with each
other’s orders. For example, RTC of Cebu City
issued an order, and another court in Mandaue
RTC cannot declare or set aside that order
because that would be a violation of Doctrine of
Non-Interference.
This doctrine also applies to
administrative bodies. In other words, ang usa ka
RTC diin ang iyang standing pareho ug standing
sa quasi-judicial bodies, dili siya ka panghilabot
sa ilang order. RTC for example has no power
over administrative bodies where the decision is
appealable to the Court of Appeals or the
Supreme Court. For example, ang NLRC ni render
ug decision sa illegal dismissal. Ang RTC dili
pwede manghilabot kay ang NLRC and RTC are
co-equals. Although dili sila pareha.
What do you mean by Doctrine of Primary
Jurisdiction?
You have come across this in your
Administrative Law. This means that courts will
not resolve a controversy or case involving a
question which is within the jurisdiction of an
administrative tribunal, especially where the
question demands the exercise of sound
administrative discretion requiring the special
knowledge, experience, and services of that
administrative tribunal.
Page | 10

Example, duna mantay balaod na kanang
sayop sa atong first name adto na didto sa LCR.
Dili ka pwede mu deritso didto sa korte kay ingon
man ang balaod adto sa ka didto sa LCR. Kung
balibaran ka didto, that would be the time adto
ka sa courts. Meaning, this doctrine mao ni atong
gi tawag ug exhaustion of administrative
remedies.
***
IV. FAMILY COURTS
As far as the RTC is concerned, dunay
mga RTC na gi tawag na mga specialized courts.
We have the so-called Family Courts (FC). That
is pursuant to the Family Courts Act. So those
cases involving minors wherein the victim is a
minor or wherein the accused is a minor, the
offender is a minor, the case is to be filed before
the Family Courts. As of now, wala patay
permanent na Family Court, because under the
Family Courts Act, ang FC didto e establish sa
Talisay. So what we have now are designated
Family Courts. I think in Cebu City we have three.
Aside from that, duna pud tay gi tawag
na mga designated Drugs Court. These are the
courts that would exclusively handle drug cases.
Mga RTC ni sila.
We also have the Special Commercial
Courts. Cases cognizable by the Securities and
Exchange Commission kay naa na sa RTC. Dunay
RTC na gi tawag ug Special Commercial Courts.
These designated courts have been designated
by the SC to handle cases involving violation of
the intellectual property rights and cases
enumerated under Section 5 of P.D. 902 or intra-
corporate disputes. Petition for suspension of
payments and rehabilitation proceedings, etc.
Kani sila 3: Family Courts, Drugs Court
and Special Commercial Courts kay mga RTC ni
sila.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
How about those cases where there is no
designated Family Courts. Example adto ka sa
probinsya, ang mga FC naa raman diri sa Cebu
City. Example naa ka didto sa Oslob or Bogo.
Dunay kaso didto na cognizable sa FC. Imo pa ba
dad on diri sa Cebu City? DILI. Adto gihapon na
didto e file sa RTC. Katong mga gi tawag na
single-sala RTC. So katong mga korte didto sa
probinsya, tanan to sila na kaso basta cognizable
by RTC. Cases cognizable by the FC, Drugs Court,
adto nila.
V. METROPOLITAN, MUNICIPAL, AND
MUNICIPAL CIRCUIT TRIAL COURTS
- Let’s go now to the first level courts. Mao
ni ang gi tawag na Courts of Limited
Jurisdiction. “Limited” in the sense that
they can only exercise jurisdiction over
those cases expressly provided by law.
Dili pareho sa RTC.
Special Commercial Court – this courts
designated as special commercial courts have
been designated by the Supreme Court to handle
cases involving violation of the intellectual
property rights and cases enumerated under Sec.
5 of PD 902 or Intra-Corporate disputes, petition
for suspension of payments and rehabilitation
proceedings, etc.
So duna tay Family Courts, duna tay Drug Courts,
Special Commercial Courts pero mga RTC ni sila.
Now, what about in those places wherein there is
NO designated Family Courts? For example adto
ka sa probinsya, ang mga Family Courts dia ra
man diri sa Cebu City, pananglitan adto ka didto
sa Oslob, didto sa Bogo kun dunay kaso
designated to the Family Courts imu pang dad-un
diri sa Cebu City? Dili. Adto lang didto e file
nimu ngadto sa RTC. Katong mga gitawag nga
single-sala nga RTC, so mao to silay mu handle as
mga kaso nga cognizable sa Family Courts. So
katong mga Corte didto sa probinsya, so tanan to
sila, tanan nga kaso basta congnizable by RTC.
Cases cognizable by Family Courts, cases
cognizable by Drugs Court adto nila.
Then, let’s go now to the first level courts.
FIRST LEVEL COURTS
First level courts are otherwise known as Courts
of Limited Jurisdiction. Limited in the sense
that they can only exercise jurisdictions over
those cases expressly provided by law. Dili
pareho sa RTC nga Court of General Jurisdiction.
Although it has a limited jurisdiction but duna
siyay gitawag ug Original-Exclusive
Jurisdiction. Sa ato pa these cases which are
within Original-Exclusive of First Level Courts di
nimu siya ma file sa bisag asa pang Corte not
even before the RTC, not even before the Court of
Appeals, not even before the Supreme Court but
only before the first level.
What are these cases that are these cases that
are within the original-exclusive jurisdiction of
first level courts?
1. Action involving personal property not
more than P 300,000.00 or in Metro
Manila P 400,000.00
2. Actions involving money claimsP
300,000.00, P 400,000.00 Metro Manila
exclusive of interests, damages,
attorney’s fees, etc.
 But remember the case of Gomez
vs. Montalban
3. Actions in admiralty and maritime
jurisdictions
4. Probate proceedings where the gross
value does not exceed P 300,000.00, P
400,000.00
5. Forcible entry and unlawful detainer
cases regardless of the assessed value.
 So even if the assesed value of the
property is P 1 Million or even P 10 Million
but if your action is for ejectment, forcible
entry or unlawful detainer such action is
within the original-exclusive jurisdiction of
the first level court.
 Regardless of the damages.
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 For example nagpa abang ka ug balay
didto sa Ma. Luisa, wala kabayad ug 1 year
or 12 months. 1.2 Million. So imu ipa
eject. Aside from asking from asking the
court to eject the lessee, you asked also
the court to order to pay you the arrears in
rentals in the amount of 1.2 Million. Adto
na nimu e file sa 1st level court because
your main cause of action is ejectment.
6. Actions involving title where the assesed
value of the property does not exceed P
20,000.00, P 50,000.00 Metro Manila
The first level courts duna pud siyay gitawag ug
Delegated Jurisdiction. What do you mean by
delegated jurisdiction? Kani siya nia siya sa RTC
pero pwede siya nga e delegate ngadto sa first
level courts. Unsa ma ning maong mga kaso?
1) Cadastral or land registration cases
involving lots where there is no
controversy or opposition OR contested
lots where the value of which does not
exceed P 100,000.00 as may be assigned
by the Supreme Court.
 So ang MTC diri is acting as RTC.
Delegated.
It also has what you call Special Jurisdiction.
In petitions involving habeas corpus and there is
no RTC judges present, the same can be filed
before the first level court and you call it special
jurisdiction.
First level courts duna pud original-exclusive
jurisdiction over cases governed by the Rule on
Summary Procedure. Such as forcible entry and
unlawful detainer cases.
Lately, dunay bag-o nga naa sa iyang exclusive
jurisdiction. Cases under the Rule of Procedure
for Small Claims cases.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
For example the plaintiff files a collection for sum
of money in the amount of P 500,000.00 against
the defendant. In the answer of the defendant
he alleged that the court does not have
jurisdiction over the case because he has already
partially paid his loan. He admitted that he
contracted a loan from the plaintiff but according
to him the remaining balance is only P
200,000.00. And he asks now for the dismissal of
the case for lack of jurisdiction. Should the case
be dismissed?
 No. Because in determining jurisdiction
of the court it should be based on the
allegation of the complaint not on the
allegations of the answer of the
defendant neither on the motion to
dismiss.
Suppose in the course of the trial it was proven
that indeed the remaining collectible amount of
the plaintiff is only 200,000. Can the RTC validly
render decision in favor of the plaintiff granting
him that amount of 200,000?
 Yes. Because once the court acquires
jurisdiction over the case, jurisdiction
remains in that court until the
termination of the case.
What about the reverse? Suppose the plaintiff
files a case for 300,000 before the RTC (so no
jurisdiction) but in the course of the presentation
of evidence it was proven that the total
collectible amount of the plaintiff is 500,000.
Can the court validly render decision?
 No. Because it does not have
jurisdiction.
Let us go now to the Rules of Court.
RULES OF COURT
PART I
THE 1997 RULES OF CIVIL PROCEDURE
Rule 1
GENERAL PROVISIONS
SECTION 1. Title of the Rules. – The Rules
shall be known and cited as the Rules of
Court.
 The Rules of Court have the force and
effect of a law. Mao na gitawag siya ug
Remedial Law. So it is a law.
SEC. 2. In what courts applicable. – These
Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court.
 It applies in all courts.
 By the way what is the difference
between a court and a judge? This was
asked in the Bar. Is there a difference?
 Court refers to the office
whereas the judge refers to the
officer of the court. Take note ha
an officer of the court. Not an
office belonging to the executive.
 Court is an organ of the
government while the judge is
the person who sits.
SEC. 3. Cases governed. – These Rules shall
govern the procedure to be observed in
actions, civil or criminal, and special
proceedings.
 Mao nang nakakuha namu ug civil
procedure, special proceedings, criminal
procedure. Kani siya naa ni tanan sa
Rules of Court.
 What do you mean by a civil action?
a) A civil action is one by which a party
sues another for the enforcement or
protection of a right, or the
prevention or redress of a wrong.
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A civil action may either be ordinary
or special. Both are governed by the
rules for ordinary civil actions,
subject to the specific rules
prescribed for a special civil action.
 A civil action could be an ordinary
civil action or could be special
civil action. What is a special
civil action?
 Special civil action is governed by
the rules on ordinary civil action
and at the same time subject to
specific rules provided by it. So
duha iyaha. Governed by the
rules on ordinary civil action at
the same time duna siyay rules
na para iyaha ra.
 Example of a special civil action
is petition for certiorari,
prohibition, mandamus. These
are special civil actions governed
by the rules on ordinary civil
actions as well as there own
specific rules.
b) A criminal action is one by which the
State prosecutes a person for an act
or omission punishable by law.
c) A special proceeding is a remedy by
which a party seeks to establish a
status, a right, or a particular fact.
 How do you distinguish an ordinary civil
action from a special proceeding?
 In ordinary civil action the
purpose is to protect or enforce a
right or to prevent a wrong or
seek a redress of a wrong
whereas in a special proceeding
the purpose is to establish a
right, status or a fact.
 In an ordinary civil action there is
a defendant, you may say “C vs.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
D,” whereas in a special
proceeding usually there is no
defendant.
 Ordinary civil action is
commenced by means of a
complaint whereas in a special
proceeding it is commenced by a
petition and usually in a special
proceedings it requires
publication.
SEC. 4. In what cases not applicable. -
These Rules shall not apply to electin cases,
land registration, cadastral, naturalization
and insolvency proceedings, and other
cases not herein provided for, except by
analogy or in a suppletory character and
whenever practicable and convenient.
SEC. 5. Commencement of action. – A civil
action is commenced by the filing of the
original complaint in court. If an additional
defendant is impleaded in a later pleading,
the action is commenced with regard to him
on the date of the filing of such later
pleading, irrespective of whether the
motion for its admision, if necessary, is
denied by the court.
 How do you file of commence a civil
action? You prepare a complaint, you see
to it that your complaint cannot be
subjected to a motion to dismiss. File the
original complaint. How do you file a
complaint? You file it in two ways. Either
you file it personally in court through
your messenger or through registered
mail. You can file it through ordinary mail
but there is a problem. Because when
you file it through registred mail the date
of mailing would be the date of filing. Sa
ato pa ang postmaster mura to ug
extension sa Court. So tua ka sa Butuan
pag file nimu didto pag abot diri dili na
ma na the same date kay kani ato postal
ma una pa ka ug abot. Pero way
problema because the date of mailing is
considered the date of filing. But if you
file it through ordinary mail the date of
receipt maoy basihan.
 Why is the date of filing very important?
Because prescription stops only upon the
filing.
 Take note that the filing of the complaint
should be coupled with the payment of
exact docket fees. The court cannot
acquire jurisdiction over the complaint if
you just file it and you do not pay the
EXACT amount of docket fees. Ug imu
gani e mail hala pa ubani na ug money
order.
 What should the court do if the case is
filed and the corresponding docket fee is
not paid? Kani adto under the
Manchester doctrine e dismiss jud na.
Pero later on the Supreme Court changed
it because if the amount of docket fees is
not paid the court may give time to the
plaintiff to pay the docket fee. The court
may allow payment of deficiency within a
reasonable period. BUT take note that
the prescriptive period will continue to
run. Although the court may allow
payment of docket fee within a
reasonable period but the prescriptive
period will not stop to run. And it will
only stop to run upon the payment of th
exact docket fee.
GO VS. TONG, 416 SCRA 557
The Supreme Court said that
while the payment of the prescribed
docket fee is a jurisdictional
requirement even its non-payment at
the time of filing does not
automatically cause the dismissal of
the case as long as the fee is paid
within the reasonable prescriptive
period or reglementary period.
Moreso, when the party demonstrates
a willingness to abide by the rules
prescribing such payment.
Page | 13

Ang nahitabu man gud ani ang
kihante wa kahibaw sa iyang bayranan
unya iyang gibutangan didto ug note,
gipadad-an niya ug suwat ang clerk of
court, “Please just inform me kung
kuwang ning kwarta nga akong
gipadala thru money order.” Ang
kontra kita man nga wa ma bayri ang
exact docket fees file dayun siya ug
motion to dismiss. Gi dismiss pud sa
court. Ingun ang Supreme Court di uy,
pwede na nimu tagaan ug time to pay.
So the court may allow
payment of deficiency within a
reasonable period but it should not
beyond the reglementary period and
that the prescriptive period continues
to run.
 In order for the clerk of court to
determine the amount to be paid duna na
siyay taripa, mutan-aw siya sa iya
listahan. Asa man niya basihi ang figure
nga imu bayranan? Adto sa imung
PRAYER. Your prayer should state the
amount of damages that you are asking.
Tanan nga imung gipangayo. For
example sum of money, nangayu ka ug
500,000 ibutang nimu didto
“WHEREFORE, it is respectfully prayed
that the court will render judgment to
order the defendant to pay the amount of
500,000 and another 500,000 as moral
damages and another 500,000 as
attorney’s fees and litigation expenses.”
So ang imung bayran ana 1.5 Million. Ato
gihisgutan diri ha bayranan DILI
jurisdiction. Ang pag determine sa
jurisdiction kato ra amount sa money
claims. Pero ug bayranan apil tanan
nimung gipangayu.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 It should be stated in the prayer. Kani
adto it should also be alleged in the body
of the complaint. But later on the
Supreme Court has softened its stand by
saying that it would be a substantial
compliance if the amount of damages is
stated in the prayer.
 Are there cases that do not have filing
fee? Naa. Habeas Corpus wala. Writ of
Amparo wala.
 What about in cases involving title or
possession of real property unsa may
basehan? The basis would be the fair
market value of the property. And if the
plaintiff is asking for damages e apil pud
na. So duha. Ang value sa property and
at the same time kato sa damages nga
gipangayu.
SEC. 6. Construction. – These Rules shall be
liberally construed in order to promote
their objective of securing a just, speedy
and inexpensive disposition of every action
and proceeding.
 We have learned last meeting that the
Supreme Court have the exclusive power
to promulgate rules regarding pleadings,
practice and procedures. It has the
power to promulgate, it also has the
power to suspend the rules. Timan-e ha
Supreme Court DILI ang lower court. Kay
ikaw lower court ka mag suspend
suspend ka ug rules e cite dayun ka ug
ignorance of the law, if ari ka sa Court of
Appeals that would be reversible error
pero ug ari ka diri sa Supreme Court that
would be part of the law of the land.
CIVIL ACTIONS
Ordinary Civil Actions
Rule 2
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. –
Every ordinary civil action must be based
on a cuase of action.
SEC. 2. Cause of action, defined. – A cause
of action is the act or omission by which a
party violates a right of another.
ELEMENTS OF CAUSE OF ACTION
i. There must be a RIGHT of the plaintiff.
 Asa man ka mangita anang iyang
right? Sa substantitive law.
ii. There must be an OBLIGATION of the
defendant to respect that right.
iii. That there was an act or omission of the
defendant which VIOLATED the right of
the plaintiff.
iv. The violation resulted in DAMAGE on the
part of the plaintiff.
Every civil action must be based on a cause of
action. If you file a case without any cause of
action then that should be dismissed for either
failure to state a cause of action or for lack of
cause of action.
So in every ordinary civil action it must be based
on a cause of action. Again a cause of actin is
the act or omission by which a party violates a
right of another. Again if you file a case without
any cause of action the same should be
dismissed on the ground of failure to state a
cause of action. Kung on the face of the
complaint wala jud cause of action then failure to
state a cause of action. Kung dunay cause of
action on the complaint but on the course of the
trial you fail to present evidence to substantiate
the allegations of the complaint then the case
should be dismissed for lack of cause of action.
In every case there should be a cause of action.
Usa ka cause of action usa ka kaso. Now under
Sec.3.
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SEC. 3. One suit for a single cause of action.
– A party may not institute more that one
suit for a single cause of action.
By the way unsa may kalainan sa suit ug sa
action? Diri sa ato wala nay kalainan. Sa ubang
nasud duna man gud silay courts of law and
courts of equity. Didto sa ubang nasud ug mu file
ka ug kaso nga base sa violation sa balaud you
call it ACTION. Pero ug file ka ug kaso base lang
sa equity walay balaud that is called a SUIT. Pero
diri sa ato ang ato Corte is both a Courts of Law
and Courts of Equity. What do you mean by
equity? That is a remedy outside the law. You
remember in your civil law that a court should
not decline a case just because there is no law.
Kung pananglitan run dunay magsabong, tari.
Unya wa may balaud ana. Ug mu action pa gani
to ug tusik ang usa ah daog. If pananglitan ni
yangu pa unya ni ingun nga tabla. Maglalis unya
nag kihaay. So there is no law governing that so
the court will look into tradition, custom or equity
kung unsa may sakto ana.
Equity is a remedy outside the law.
A party may not institute more than one suit for a
single cause of action. One cause of action there
should only be one case for a single cause of
action. If you file 2 cases for a single cause of
action then that could be subjected to a motion
to dismiss. You call it Splitting a cause of
action.
SEC. 4. Splitting a single cause of action;
effect of. - If two or more suits are
instituted on the basis of the same cause of
action, the filing of one or a judgment upon
the merits in any one is available as a
ground for the dismissal of the others.
For example ejectment, dunay wa maka abang sa
balay nga imung gipa abangan. So duna kay
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
collectible 1M kay wala kabayad sa abang. So
you file a sum of money against the defendant
and then you file another case for ejectment. Is
that allowed? No. Because you have only one
cause of action. So what you should do in that
case is you file an ejectment case and in that
case you ask for the eviction of that lessee and at
the same time you ask him to pay the arrears.
There should only be one case.
Pananglitan nag huwam ka unya dunay real
estate mortgage. File ka ug foreclosure of
mortgage and at the same time file pud ka ug
collection of sum of money. Aw dili na pwede. It
should be either. So you call it splitting a cause
of action.
Then what would be your remedy? Your remedy
is you file a motion to dismiss on the ground of
litis pendentia or if the other case is already
terminated you may file a motion to dismiss on
the ground of res judicata. Motion to dismiss or
you may allege it as one of your affirmative
defenses in your answer. So that the other cases
filed may be dismissed.
Kani siyang splitting a cause of action, litis
pendetia ug res judicata daghan ug kaso ani nga
ni abot ngadto sa Supreme Court. So how do you
determine that this case is the same as the other
case? Unsaun ma na pag determine nga kaning
kaso nga gi file pareho ra ni sa katong kaso nga
gi file na.
BANGKO DE ORO APCI INC VS. DAGUNA,
OCTOBER 31, 2008
Now the test of identity of caused of
action lies on whether the same evidence
would support and establish the former and
the present causes of action. If the same
body of evidence would sustain both actions,
the two descend from the same cause of
action. So kung pareho ra gani ug ebidensya,
ang ebidensya diri mao ra puy ebidensya
didto then these two cases are just the same.
So there is identity of causes of action.
Another example. Promissory note, nangutang
unya dunay interest nga gikasabotan unya duna
pa juy kasabotan nga in case of default bayad
kag attorneys fees and other surcharge. So for
example 100,000. File ka ug kaso sa 100,000
one case. Sunod na sad file na sad kaso for the
collection of the interest, 2nd case. Sunod na
sad file na sad kag kaso for the collection of
attorney’s fees and other damages. Tulo ka kaso
and that is a splitting a cause of action. You
should have filed only one case.
What is the rationale or reason behind prohibiting
splitting of cause of action? Prohibited to avoid
multiplicity of suits and to avoid harassments.
Just imagine abi ka datu ka pataka ra ka ug file
ug mga kaso.
SEC. 5 – Joinder of causes of action.
Now, splitting of cause of action is prohibited.
Dili pwede nga usa ka cause of action daghanun
nimu ug kaso. But joining causes of action, for
example if you have five causes of action you
may join it in just one complaint.
So for example si D nangutang ngaring C then
shall we say pirmero nyang utang way back 2010
nangutang siya ug 300,000 then sometime in
2011 nangutang sad siya ug 200,000. Nagbalay
ma ni siya. Unya kuwangan ra. Just this year
katong January 2012 nangutang na sad siya ug
another 200,000. This is payable in one month
for example. How many contracts of loan that D
has entered with C. There are 3. So supposed to
be 2010 would be one case, 2011 usa ka kaso,
2012 usa ka kaso so C is allowed to file 3 cases
because each contract of loan has one cause of
action. Now, under Sec. 5 a party is allowed to
join his causes of action. So in other words these
Page | 15

causes of action could just be joined in one
complaint and you call it joining of causes of
action.
As far as joining of causes of action is concerned
there is no problem kung 1 plaintiff ug 1
defendant. You can join your causes of action
even if the transactions are different. You notice
that there are 3 different transactions here in our
example. 1 transaction in 2010, 1 loan
transaction in 2011 and in January 2012 1 cause
of action. There is no problem you can join them
just in one complaint.
Then you might ask in that instance in what court
should the case be filed? Now you apply the so
called totality rule. You add all the amount of
the claims. Example 700,000 so this should be
filed in the RTC.
Pero ug iya na siyang tinagsaun. Usa ka kaso sa
2010, usa ka kaso 2011, usa ka kaso 2012 then
each of these cases should be filed with the first
level court.
One defendant – One plaintiff dili kaayo libog
because you can join your causes of action even
if your transactions are different. Now there is a
later problem if aside from causes of action the
complaint would involve joinder of parties.
So for example si C na na siyay kauban or si D
dunay kauban nangutang so dunay joint debtor.
So for example aside from D naa si E. Aw na nay
problema diha. Let us know the rules first.
SEC. 5. – Joinder of causes of action. – A
party may in one pleading assert, in the
alternative or otherwise, as many causes of
action as he may have against an opposing
party, subject to the following conditions:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 Note there is no limit. It can be as many
causes of action as he may have against
an opposing party.
 By the way this is permissive joinder.
Permissive you mean to say Mr. C may
choose to separate his cases becauses
this is only permissive this is not
compulsory.
 One rule that should be followed is
comply with the rules on joinder of
parties if there are other parties joined.
a) The party joining the causes of
action shall comply with the rules on
joinder of parties;
 In our example si C ug si D usa ra
man sila dili mu apply ang rule a.
b) The joinder shall not include special
civil actions or actions governed by
special rules;
 Sa ato pa for example gawas nga wala
makabayad sa utang si D, si D pud wala pud
maka abang sa iyang gipuy-an nga gipanag
iya ni C. Money claims. Unya sa abang sa
balay collectahunon ni C kay 200,000. So,
pwede ba e apil na lang niya ang pagpa eject
ni D? Allege that D is also renting a house
owned by the plaintiff at a monthly rental of
50,000 a month that for 8 months now the
defendant failed to pay the monthly rentals
amounting to 200,000. Despite demands he
still failed to pay his rentals. WHEREFORE, it
most respectfully prayed from this Honorable
Court that the defendant be ordered to pay
the amount of 700,000 representing the loans
that he obtained that from the plaintiff and he
should also be ordered to vacate that he
rented and to pay the arrears in rental in the
amount of 200,000. Pwede ba na?
 No. Because ejectment is a special civil
action. It should not be joined. So necessarily
C has to file another case for ejectment. That
is one rule. The joinder of the causes of action
shall not include special civil actions.
c) Where the causes of action are
between the same parties but
pertain to different venues or
jurisdictions, the joinder may be
allowed in the Regional Trial Court
provided one of the causes of action
falls within the jurisdiction of said
court and the venue lies therein; and
 Dunay Bar Question. For example gibutang
nato nga dili tanan money claims. C gawas
nga duna siyay money claim gusto pud siya
nga mu recover ug piece of property. Mr. P a
resident of Manila filed a complaint against
D resident of Iloilo in RTC Manila. The
complaint joint 2 causes of action. One for
collection of 500,000 and the other for
recovery of title over real property with
assessed value of 200,000.
 Ang usa ka kaso ani mu involve sa MTC ang
usa sa RTC. So for example si C taga Cebu
City si D taga Tagbilaran. There is a parcel
of land in Tagbilaran owned by C unya gi
angkon ni siya ni D. This parcel of land is in
Tagbilaran owned by C but claimed also by
D. Let us say for example that the assessed
value of this property is 20,000. Then aside
from that C has collectible from D in the
amount of 500,000. So C has 2 causes of
action, 1 for money claim of 500,000 and
2nd recovery of possession. Ibutang nato
nga ejectment ni siya nga napan-us. Di ba
ang ejectment ug napan-us na siya pwede
ma na siya RTC pwede pud first level court.
Now he filed a single complaint against D.
In one complaint money claim and at the
same time recovery of possession. He filed
it in RTC Cebu City. Is there a proper joinder
of causes of action? Should the causes of
action be separated?
Page | 16

 Again he filed it in one complaint. Money
claim for 500,000 and recovery of
possession over a parcel of land with the
assessed value of 20,000 in Tagbilaran. Is
there a proper joinder of causes of action?
 Pwede pa ni e complicate nimu for example
a parcel of land is in Dumaguette and he
filed a case in Cebu City and D is a resident
of Tagbilaran. Is there a proper joinder of
causes of action? Look at rule (c).
 Where the causes of action are between the
same parties but pertain to different venues
or jurisdictions, the joinder may be allowed
in the Regional Trial Court provided one of
the causes of action falls within the
jurisdictin of said court and the venue lies
therein.
 So going back to the question is there
proper joinder of causes of action? YES.
Because asa man ang na belong sa RTC diri?
The money claim. As far as the money
claim is concerned ari na siya sa RTC. Sakto
ba nga diri na file sa RTC? Yes because as
far as personal action is concerned it is at
the option of the plaintiff. Venue. It could
be at the residence of the plaintiff or
residence of the defendant. So venue is
correct and jurisdiction is correct.
 Now recovery of possession is cognizable by
first level court. Under letter (c) when the
causes of action some of which is cognizable
by RTC and the other by first level court the
complaint where the cause of action are
joined could be filed with the RTC that has
the venue or jurisdiction over one of the
causes of action. In this case RTC Cebu City
has the venue as well as the jurisdiction
over the money claim.
d) Where the claims in all the causes of
action are principally for recovery of
money, the aggregate amount
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
claimed shall be the test of
jurisdiction.
 This is the totality rule.
 When the causes of action is
mainly for money claim the total
claims shall be added in order to
determine which court should
have jurisdiction over the joint
causes of action.
Now ari ta sa dunay 2 or more parties. Now if
there is joinder of causes of action and ni involve
pa gyud ug 2 or more parties ang rule ana naa sa
Rule 3 Sec. 6.Kaning Rule 3 Sec. 6 nag hisgot ni
siya ug permissive joinder of parties. Ganiha
joinder of causes of action. Karun gawas nga
dunay joinder of cause of action duna pa juy
joinder of parties. The parties joined could be the
same plaintiffs or the same defendants.
Rule 3 Sec. 6. Permissive joinder of
parties. – All persons in whom or
against whom any right to relief in
respect to or arising out of the same
transaction or series of transactions is
alleged to exist, whether jointly,
severally, or in the alternative, may
except as otherwise provided in these
Rules, join as plaintiffs or be joined as
defendants in one complaint, where
any question of law or fact common to
all such plaintiffs or to all such
defendants may arise in the action;
but the court may make such orders as
may be just to prevent any plaintiff or
defendant from being embarrrassed or
put to expense in connectin with any
proceedings in which he may have no
interest.
There are 3 Requisites before you can join
parties.
i. The right to relief arises out of the same
transaction or series of transactions.
 Meaning to say the different
causes of action should arise out
of the same transaction or series
of transaction.
ii. There should be common question of law
or fact.
iii. It should not violate the rules of venue
and jurisdiction.
November 11, 2012 (Sunday)
Section 4. Splitting a single cause of action;
effect of. — If two or more suits are
instituted on the basis of the same cause of
action, the filing of one or a judgment upon
the merits in any one is available as a
ground for the dismissal of the others.
Section 5. Joinder of causes of action. — A
party may in one pleading assert, in the
alternative or otherwise, as many causes of
action as he may have against an opposing
party, subject to the following conditions:
(a) The party joining the causes of
action shall comply with the rules on
joinder of parties;
(b) The joinder shall not include
special civil actions or actions
governed by special rules;
(c) Where the causes of action are
between the same parties but
pertain to different venues or
jurisdictions, the joinder may be
allowed in the Regional Trial Court
provided one of the causes of action
falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the
causes action are principally for
recovery of money, the aggregate
Page | 17

amount claimed shall be the test of
jurisdiction
We have learned that splitting causes of action is
strictly not allowed. In every action or case there
must be a cause of action. A cause of action
should be subjected only to one complaint. If for
one cause of action, two or more complaints are
filed then the same can be subjected to a motion
to dismiss. Now, splitting a cause of action is not
allowed. But what the rules allow is joinder of
cause of action; however, there are rules to be
followed .Under Rule 2, sec. 5 tells us the
rules to be followed:
1. A joinder should not include special civil
actions.
Meaning to say only ordinary civil action
can be joined.
2. Then another , where the causes of action are
between the same parties but pertain to different
venues or jurisdiction, the joinder may be allowed
in the RTC, provided that one of the causes of
actions falls within the jurisdiction of said court
and as well as the venue lies therein.
So, sa ato pa duna kay cause of action,
usa cognizable sa MTC and the other one is
cognizable by RTC, you can join the two causes of
action in the RTC provided that the jurisdiction as
well as the venue...Jurisdiction as well as the
venue are within the RTC.
3. And another rule, where the claims in all the
causes of action are principally for recovery of
money, the total amount shall determine the
jurisdiction.
And aside from joinder of causes of action you
also join other parties. For example, there are
two or more plaintiffs or there two or more
defendants, you called this joinder of parties .
You can join the parties, provided that the rules
on joinder of parties are also observed. So, duha
na ka rules, kung gi-joined pa ninyo ang causes
of action plus gi-join pa ninyo ang mga parties,
you have to follow the rules on joinder of causes
of action plus you also follow the rules on joinder
of parties. Then you might ask, “asa man ato ang
rules sa joinder of parties?” Tua didto sa Rule 3,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
somewhere in section 6, dunay rules diha. There
are three rules (under rule 3, sec. 6)
a. Kung duna gani joinder of parties, the
causes of action must arise out of the
same or series of transactions.
Sa ato pa you cannot join causes of
action involving joinder of parties,
different parties, if the causes of action
do not arise out of the same transaction.
For example, Mr. A obtained a loan from
Mr. C, creditor, in the amount of 300,000.
Mr. B also obtained a loan in the amount
of 200,000 from Mr. C, another
transaction. Now, can Mr. C file just one
complaint against Mr. A and Mr. B? So, si
Mr. C dunay duha ka-cause of actions, wa
ma sila kabayad. Duna sya’y cause of
action against Mr. A, 300,000; duna pud
sya’y cause of action kay Mr. B kay wa
pud mubayad.
So, can Mr.C just join these two causes of
actions involving two defendants? Can
there be proper joinder of parties
involving these two causes of actions?
Kung panaglitan usa ra kacomplaint ang
i-file ni C, nya i-join nya ning duha: C vs.
A and B. So there is now a joinder of
paties, nya deri sa iyang complaint iyang
i-alleged nga si Mr. A nikuha niya ug
300,000 on such date and when due date
came he failed to pay despite demands,
then another nasad on such date Mr. B
obtained a loan on due date he did not
pay despite demands. So, iya lang gi-join
diha. So, prayer: wherefore it is most
respectfully pray on this honourable court
that after hearing Mr. A be ordered to pay
300,000 plus interest, Attorney’s fees,
etc.; another Mr. B be ordered to pay
200,000 plus interest, etc.
So, now question: is there proper joinder
of parties?? Now the answer is NO. Why?
Because one rule that you should
observe, if there is joinder of parties, is
that the causes of action must arise out
of the same transaction or occurrence or
series of transactions. Here, that rule is
not followed because the causes of action
against A and B did not arise out of the
same transaction. Do you follow?
Pero kung pananglitan usa ra to,
pananglitan si A ug si B nangutang, co-
maker (you have learned that in your civil
law). Co-maker silang duha, sila si A ug si
B, usa ra kapromissory note, silang duha
nipirma, wa sila makabayad. Can Mr. C
file just one complaint against A and B?
The answer is YES. Why? Because the
causes of action just arise in the same
transaction. Do you follow? If there is
joinder of parties, one rule that you
should know is that the cause or causes
of action should arise out of the same or
series of transaction or occurrence.
b. Then another, as far as joinder of
parties is concerned, it must involved the
same question of law or same question of
facts.
When we say question of facts,
meaning the same evidence will be used.
c. And that another rule: is that it should
not violate venue and jurisdiction, the
rule on venue and jurisdiction.
So, requisites again for joinder of parties. Kaning
joinder of parties mao ning ingon nako katong
niagi medyo nay gamay na confusion, kay
nganong duna may daghang rules na imong i-
observe. So, there are three rules under Rule 3,
sec. 6, REQUISITES:
1. the cause of action or causes of action must
arise out of the same or series of transaction and
there must be common question of law or facts.
2. and that the joinder of parties, plus imo pajud
gi-join ang causes of action, should not violate
the rule on venue and jurisdiction.
Pananglitan, duna ka’y yuta, unya
daghan kaayo namuyo kay dili lagi ka tig-adtuan
sa imu yuta. Daghan kayo namuyo, ubutang nato
mga 20 families na gapuyo sa imong yuta. Lain-
lain sila ga-occupy, alangan patung-patungon
nila ang ila balay, so payag diri, payag didto,
payag diha... pak! Now you file just one
complaint against the 20 families, complaint for
ejectment, forcible entry. So, let us say you are
Mr. C and you file ejectment against 20 families.
Page | 18

Question: is there proper joinder of parties or is
there a need for you to file one complaint against
every family? Is there a need for you to file one
complaint for ejectment for each and every
family and therefore you are going to file 20
complaints for ejectment or would it be just
proper to prepare one complaint and file one
complaint against all the 20 families?? Now, the
answer is there would be a proper joinder of
parties. Why? Because:
1. There is a common question of law
which is possession or common question of facts
2. And that it arises from the same
transaction or occurrence.
By the way, transaction would also
involved occurrence. So, you can just file one
complaint for ejectment against all these families
and there is proper joinder of parties.
And so, in our example earlier, katong example
nato ganiha: Diba si Mr. A nangutang ug 300,000
ngadto ni C, si B nangutang ug 200,000, silang
duha wala kabayad iyang gi-join, nahimong
500,000. Do you follow? Ug ni-file nya didto sa
RTC.So, question nato ganiha, is there proper
joinder of causes of action and parties? The
answer is NO, because when there is joinder of
party the cause or causes of action must arise of
the same or series of transaction: that is one
rule! Now, here you notice that causes of
action did not arise out of the same or series of
transaction. The transaction involving A is
different from that of B. Kanang mga question
manganak man na, manganak man nya unya.
Primero pangutana, is there a proper joinder of
parties? Of course NO! Then, follow up question:
if you where the counsel for either A or B, what
will be your defense or what will be your ground
for the dismissal of the action? Your ground will
be, you can file a motion to dismiss on the
ground of lack of jurisdiction. Why lack of
jurisdiction? Why is it the RTC does not have
jurisdiction over the complaint, ni-abot man na
siya ug 500,000? RTC does not have jurisdiction
because there is no proper joinder of causes of
action. There should be two complaints: one
complaint for 200,000 and one complaint for
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
300,000. And this complaint should be filed
before the first level court.
Section 6. Misjoinder of causes of action. —
Misjoinder of causes of action is not a
ground for dismissal of an action. A
misjoined cause of action may, on motion of
a party or on the initiative of the court, be
severed and proceeded with separately
Misjoinder of causes of action
If there is a misjoinder of causes of action it
cannot not be a ground for dismissal of action.
Except, dunay exception ani. Except, when there
is a violation of venue or of jurisdiction. Nakita
niyo dri sa ato example nga na-misjoin ang
causes of action. Although the general rule is it
cannot be ground for dismissal of action, but
since there is misjoinder of causes of action that
could be a subject of a motion to dismiss on the
ground of lack of jurisdiction. But the general rule
is that misjoinder of causes of action cannot be
ground for dismissal. However, the court may
order that the misjoined causes of action being
separated or severed.
Then what could be the remedy? Unsay remedy
nimu ana kung gusto jud ka nag dunganon, dili
man pud pwede sa isa ka-complaint, unya gusto
jud ka na usahon ra, dunganon ang hearing? You
can ask for consolidation of cases. Under Rule 31,
you can ask the court for consolidation.
Okey, let’s go now to Rule 3
RULE 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and
defendant. — Only natural or juridical
persons, or entities authorized by law may
be parties in a civil action. The term
"plaintiff" may refer to the claiming party,
the counter-claimant, the cross-claimant, or
the third (fourth, etc.) — party plaintiff. The
term "defendant" may refer to the original
defending party, the defendant in a
counter-claim, the cross-defendant, or the
third (fourth, etc.) — party defendant.
PARTIES TO CIVIL ACTIONS
Who can be parties?
Now as far as Civil cases are concern, there are
two parties, the plaintiff and the defendant.
Kung Criminal case, ang tawag sa mukiha,
plaintiff gihapon: People of the Philippines. Unya
ang gikiha ang tawag niya is accused. Although
mga karaan na mga kaso, ang accused tawgon
gIhapong defendant (karaang mga kaso katong
mga 1950’s). Makasugat ka ug criminal cases na
ang gitawag sa accused is defendant, so if
mugamit ka karon ug “defendant” sa ato pa
karaan kang tawo. So, kung criminal cases gali
ayaw gamit ug “defendant”, kai nagpasabot raka
na karaang tawo ka.
Whereas if it is Special Proceedings gani, ang
parties ana gitawag ug petioner and
respondent.
Under section 1, only nature or juridical
persons.
Nakakuha naman mo ug Corporation Law, you
already know what is natural or juridical person.
Juridical persons, as what you have learned, dili
jud ni sila mga tawo, mga dili ni ingon nato. They
are not really persons but they are considered by
law as persons. Mao nang gitawag sila nga
juridical persons. When you say juridical person
meaning they are duly registered with the
Security and Exchange Commission or other
government agencies.
So, Natural persons, juridical persons or entities
authorized by law. Dunay mga entities nga dili
nimu matawag na natural person, di pud nimu
matawag bga juridical person BUT this rules of
court allow them to file a case. Then you might
ask, “ unsa man ning mga entities na dili natural
person, dili pud juridical person pero maka-file ug
kaso? Example, kanang Estate, kana bitaw
mamatay na duna sila’y mga properties, dunay
Page | 19

executor, dunay administrator. Now, dili man na
nimu sila marehistro, pwede sila ka-file ug kaso,
pwede sad nimu sila mafile-an ug kaso. So that is
an example of an entity authorized by law. So,
may be a party in a civil action.
The term plaintiff refers to the claiming party or
the counter claimant or the cross claimant or the
third party plaintiff. While the defendant may
refer to the original defending party, defendants
in a counter claim, cross claim defendant or third
party defendant.
Another example of entity that could file a case
or could be a party to a case, kanang sa mga
labor unions, they can sue and they can be sued.
In Corporation law, nakahinumdom mo na
kanang grupo sa mga tawo who pretended to be
a corporation when they are not, they are not
registered. Pwede na sila ikiha, dili na sila kakiha
as corporation but pwede sila ikiha as
corporation. They can be sued as a coporation,
although actually they are not registered as a
corporation. They cannot be sued as a
corporation but they can be sued because they
are estopped. Then sa iyo Corporation Code
naka-come across mo anang term na corporation
Sole, diba? Unsa man nang Corporation Sole?
Simbahan, usa ra kabuok: ang Cardinal ra. But it
can sue and be sued.
What would be the remedy if a complaint is filed
by a plaintiff who does not possess a capacity to
sue? Unsa man imu remedy kung pananaglitan
dunay grupo sa mga tawo na mukiha as a
corporation pero dili registered? Pananglitan si A,
B, C, D,E, lima sila kabuok ni-file sila ug kaso as a
corporation pero dili diay sila registered. Unsa’y
imu remedy ana? You can file a motion to dismiss
on the ground that the plaintiff does not have
legal capacity to sue.
Section 2. Parties in interest. — A real party
in interest is the party who stands to be
benefited or injured by the judgment in the
suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by
law or these Rules, every action must be
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
prosecuted or defended in the name of the
real party in interest.
Then PARTIES IN INTEREST
A real party in interest is the party who stands
to be benefited or injured by the judgement in
the suit, or the party entitled to the avails of the
suit.
General rule: Only a real party in interest should
be a party to a case.
Kinsa man ning real party in interest? He is
the party who stands to be benefited or affected
or injured by the judgment.
Pananglitan nangutang ka ni S, unya si S niadto
didto sa abroad kay doctor man ta to sya nya
nahimong nurse adto sa abroad. Nya lagi tua
man to siya sa abroad, ang imong utang ni-due
na kay one year ra gud. Mao to si F (ang papa)
mao nalang ang nag-file ug case batok nimu.
Nagpost man gud ug message didto sa twitter,
ingon sya nga “Tay, ikaw nlang bahala diha nang
akong utang, utangan raba si X nako”. Mao to na
gi-file.an ni F ug kaso. So, question: is F
considered a real party in interest in the case?
The answer is NO! He has no interest. Unsa man
diay nang meaning sa real party in inerest? He is
the party who stands to be benefited or
prejudiced by the judgement. Although he is the
father but he is not the real party in interest. So,
unless Mr. S would execute special power of
attorney authorizing F, his father, to file the case
then the case would be dismissed. Unsa man sad
imu ground pagpadimiss ana? Lack of legal
capacity to sue? Dili, kay of legal age naman si F.
Unsa man? Failure to state a cause of action,
because F does not have any cause of action
against you.
Kung pananglitan mu-execute ug special power
of attorney si S in favour of his own father, pwede
ba nimu ipadismiss ang kaso? Ah dili, kay si F
duly authorized man to file because F is not filing
the case in his own name but in the name of Mr.
S. So, unless otherwise authorized by law or this
rule, every action must be prosecuted or
defended by a real party in interest.
So, in our example bisag si Mr. S tua didto sa
abroad pwede gihapon siya ka-file ug kaso.
Unsaon man niya pag-file ug kaso? Iya lang i-
authorized si Mr. F, ang iyang papa. Mu-execute
siya ug special power of attorney unya iya i-
authorized iya papa sa pag-file sa kaso for and in
behalf of Mr. S. Every action must be prosecuted
in the name “of” not “by the real”, lahi man na
ang “by the real party in interest” ug “in the
name”. So, pwede raw a siya deri unya mu-
maintain siya ug kaso “in his name”.
Section 3. Representatives as parties. —
Where the action is allowed to be
prosecuted and defended by a
representative or someone acting in a
fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be
deemed to be the real property in interest.
A representative may be a trustee of an
expert trust, a guardian, an executor or
administrator, or a party authorized by law
or these Rules. An agent acting in his own
name and for the benefit of an undisclosed
principal may sue or be sued without
joining the principal except when the
contract involves things belonging to the
principal.
What about a minor?
Can a minor file a case? Look at Sec. 3,
representative parties. For example nabiktima ka
ug hit and run sa imong uyab, gi-hit ka...dagan
dayon. So, wa muhatag ug support. Ikaw mismo,
can you file an action for support against your
boyfriend? Dili! Kai dili man obligado imong
boyfriend pag-support nimu. But how about your
child, pwede ba siya ka file for support? YES. But
the problem is bata pa man nah imong anak.
Unsaon man na niya pag atubang sa korte? You
can file the case for and in behalf of your child.
Page | 20

So, where the action is allowed to prosecuted or
defended (under Sec. 3) by a representative or
by someone acting by a fiduciary capacity the
beneficiary shall be included in the title of the
case and shall be deemed to be the real party in
interest. A representative may be in trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law or
these Rules. An agent acting on his behalf or for
the benefit of undisclosed principal may sue or
be sued without joining the principal except when
the contract involves things belonging to the
principal.
So, kung dili ka ka-file pwede ra ka mu-athorized.
Katong imu gi-authorized, he will be considered
as a representative party. Meaning he is not
really the party in interest but he is just a
representative of the real party interest. But in
the title of the case the name of the real party in
interest should be included. So, for example ang
the real party in interest is Mr. S, unya si Mr. F
ang ni-file. So ibutang didto: S represented by Mr.
F ,his attorney infact. Or (pwede na i-ramble
nimu ) F for or in behalf of S. So, the name of the
real party in interest shall be mentioned. And the
capacity of the representative should also be
alleged by what authority he is filing the case.
So, ibutang jud na didto “duly authorized”. Unya
i-attached nimu ang special power of attorney
(copy of the special power of attorney).
Diha usa kakaso gi-file sa korte, gibutang didto:
“recovery of ownership and possession”, unya
gibutang didto: “Juan dela Cruz for and in behalf
of himself and his nephew and nieces”. Sakto ba?
Lima man gud sila kamanag igsuon, siya nalang
ang buhi, unya nag iyang mga igsuon patay na
pero naay mga anak. Ang ilang yuta gi-angkon ug
lain, kato bang yuta sa ilang ginikanan ni Juan
dela Cruz. So, ni-file siya ug recovery of
ownership and possession, unya gibutang didto
sa compliant, “Juan dela Cruz for and in behalf of
himself and of his nephews and nieces”. Sakto
ba? The answer is NO! Why? Because: (1) he is
not duly authorized, his nephews and nieces did
not execute special power of attorney; (2)
another, the rules require that the names of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
beneficial party (kinsa katong real party in
interest) must be mentioned. Dili na nimu
butangan ug “nephews and nieces”. Kinsa man
nang nephewha ug mga nieces nimu?! Unya,
kung pananglitan dunay counterclaim, kung
madismiss uroy tong kaso kay baseless, kinsa
man ang pangayuan ug damages?? Muangkon
diay to sila na gi-athorized siya (Juan dela Cruz)?
“Uy, wa mi kabalo na ni-file siya ug kaso!” Mao
nang hinundan nganong ipa-mention gyud kung
kinsa nang nangiha. Do you follow?
Actually tua ni sa iyo Legal Forms, mu-connect ni
sa inyong Legal Forms. So, kung representative
gani, if you just representing, the person whom
you are representing must be mentioned (kinsa
man ang imu gi-representahan?).
Can a labor union file a case? YES. Unya wa man
na’y kamot ang union, kinsa man ang mu-file?
Katong duly authorized, just like a corporation,
ang corporation wa man na’y kamot. So, the duly
authorized mao nang mupirma sa complaint.
Nahinumdum mo tong usa kabuta bitaw nga naa
duol sa diha sa Sto. Rosario, nangayo ug limos.
Diay taga San Jose unya padung to sa Finals, nya
lagi nakuyawan siya sa finals basin nya
mahagbong mao to arong makapangayo siya ug
idoluhensiya sa Ginoo, nilimos. Unya dako jud iya
gilimos, dyes (kanang coins bitaw, kana bitaw
sinsiyo). So gi-baynte jud niyos, duha katag dyes.
Unya paghatag niya sa buta wa maayong
pagkasaho sa buta, ang isa ka-dyes nikariring
didto...iya gi-obserbahan nitindog man ang buta,
gisunod man ang dyes. Iya giduol, “pagtug-an sa
tinuod, di ka buta noh?” “bitaw sir di bitaw ko
buta, nagrepresentar ko sa tinud-anay gyong
buta.” “Asa gyud diay ang tinud-anay na buta?”
Ingon siya, “tu-a pa, tan-aw ug sine sa SM”.
Section 4. Spouses as parties. — Husband
and wife shall sue or be sued jointly, except
as provided by law.
SPOUSES AS PARTIES
Under section 4, the husband and the wife shall
sue and be sued jointly, except as otherwise
provided by the law.
General rule: husband and wife shall sue. Kung
sila’y plaintiff, silang duha ang mu-sue. Kung sila
ang defendant, silang duha pud. Why? Ngano
mang kung mukiha sila or ikiha nimu sila, ang
asawa i-apil man nimu ang bana? Because under
the Family Code or under the Civil Code they are
co-administrators of their properties. So, kung
plaintiff sila nganong silang duha pud? Tungod
kay kung dunay counter claim, unya mu-prosper
tong counter claim wala na-join ang husband or
wife, then dili ma-enforce tong judgment. But are
there cases where the husband or the wife alone
can file the case? YES, naa na (except as
provided by law). For example in what instance
allow just one of them to file or be sued? For
example, when there is separation of property or
properties between the spouses. When there is
separation of properties or when the case
involves property of spouse which can be
considered as her or his exclusive property then
he or she alone can file the case.
Now, take note that none joinder of the husband
or the wife, kung mahitabo na angay unta sila i-
join pero wa sila majoin, take note that none
joinder of a spouse cannot be a subject of a
motion to dismiss. Then what should the court
do when the court noticed that the husband or
the wife is not impleaded? The court nay order
the party concerned to implead the
husband or the wife.
Section 5. Minor or incompetent persons. —
A minor or a person alleged to be
incompetent, may sue or be sued with the
assistance of his father, mother, guardian,
or if he has none, a guardian ad litem.
Involving a minor. So, a minor or person alleged
to be incompetent may sue or be sued with the
assistance of his father, mother or guardian, if he
has none, a guardian ad litem. So, can your
minor son or child file for support against his
father? The answer is YES. If you are not married,
Page | 21

you can file against the father of your son. Your
son can file a can file a case but since your son is
still a minor you can represent the minor because
under the family code you are the legal custodian
of your child. There’s no need for court
appointment. Pero kung kasal mong duha, unya
nagbuwag mo sa inyong bana, ang bana dili
muhatag ug support, you are also entitled to
support and your children is also entitled to
support. So, you can file a case for support for
yourself as well as in behalf of your child or
children.
Ang imu bata pwede ba makiha? Pwede! Imong
bata nakasa, unya under criminal nakadunggab
simba ko. File-an siya ug civil kay dili man siya
criminally liable. Pwede nimu ikiha apil ang
ginikanan.
Section 6. Permissive joinder of parties. —
All persons in whom or against whom any
right to relief in respect to or arising out of
the same transaction or series of
transactions is alleged to exist, whether
jointly, severally, or in the alternative, may,
except as otherwise provided in these
Rules, join as plaintiffs or be joined as
defendants in one complaint, where any
question of law or fact common to all such
plaintiffs or to all such defendants may
arise in the action; but the court may make
such orders as may be just to prevent any
plaintiff or defendant from being
embarrassed or put to expense in
connection with any proceedings in which
he may have no interest.
Section 6, we had discussed this already. Joinder
of parties. You call this permissive joinder of
parties.
Permissive, in the sense that it is not really
compulsory to join parties. You can file a separate
action against the different parties but if the
requirements under section 6 and under section
5, Rule 2 are complied with, then you can join the
parties.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
We a have already discussed the rules on joiner
of causes of action. So, usbon nato wa kaayo
problema kung usa ka-plaintiff ug usa ka-
defendant. When there is only one plaintiff
and only one defendant you do not follow
the rule that the causes of action must
arise out of the same transaction. Why?
Because that rule is required only to be followed
if there are joinder of parties. So, in other words
one plaintiff, one defendant: there could be
different causes of action even if these causes of
action arise of different causes of action.
For example:
C= creditor
D= debtor
Niadtong 2010, nakautang si D ug 200,000.
Pagaka 2011, nakautang nasad si D. Lain na sad
na promissory note, nipirma nasad siya another
300,000.
Pila naman ka promissory note ang gipirmahan ni
D? Duha. Unaya, niining duha wa gyud niya
mabayri bisag usa . So, gi-file.an siya ug kaso ni
C. Pwede ban a katong utang ni D katong 2010
ug katong 2011, 200k ug 300k, pwede ba nga
usa ra to ka kiha? Yes, because if there is only
one plaintiff and one defendant, you do not follow
the rule on joinder of parties.
Usa sa mga rules sa joinder of parties that the
cause or causes of action must arise out of the
same transaction. In the problem given since
there is no joinder of parties, it is not necessary
the causes of action must arise out of the same
transaction. And so you can apply the TOTALITY
RULE.
So asa man i-file ni C ang iya kaso? RTC, because
you can apply now the totality rule, you add all
the claims. Since the claims out of the join
causes of action, his total claims reached
500,000, then he to file the case with the RTC.
Pero magbantay mo ana dunay maga higayon na
complicate nang usa ka-plaintiff ug usa ka-
defendant. Kanus-a man na siya mu-complicate?
Kung pananglitan mu-involve na to ug recovery
of possession na dili na money claim, unya mu-
involve ug different jurisdiction, thus mu-
complicate. So, you have to follow katong isa
nasad ka-rule: that in case one action, one action
is cognizable sa MTC and the other one is
cognizable by the RTC, you file the case before
RTC, provided that the rule on venue and
jurisdiction (dili “or” ha), fall within the
jurisdiction within the RTC.
Kanang rules on causes of action and rule on
joinder of the parties kadaghan kana nigawas sa
bar. Sa ato kay kadaghan na nigawas sa bar, inyo
kanang siguruon
Section 7. Compulsory joinder of
indispensable parties. — Parties in interest
without whom no final determination can be
had of an action shall be joined either as
plaintiffs or defendants.
Then compulsory, in section 6 that is about
permissive.
But there are instances that there should be
compulsory joinder of parties, dunay pinug-
sanay na i-join jud nimu. In what instance? When
the parties in interest are considered
indispensable parties.
Then what do you mean by indispensable part
or parties? He is a party in interest without
whom no final determination can be had and so
he or they should be joint either as plaintiffs or
defendants. No final determination can be had,
meaning there is no valid judgment if this person
cannot be pleaded either as a party plaintiff or as
a party defendant.
Example of a case where there can be no
indispensable party, for example partition.
Namatay imu ginikanan, nagbilin ug usa ka
hekyarya nga yuta. Lima mo kabuok: si A, si B, si
Page | 22

C, si D ug si E. Unya, usahay kaning mga igsu-on
dunay bintihador ana kay na-anad man sa buhi
pang ginikanan na inig pasko ang tanang sapatos
apilan pa jud ug karsunis ( kay liwat man sa papa
na pinalabi). Inig kamatay na sa papa nagtu-o
sad siya na mapinalabi sad siya, so iyahon na
niya tanang katigayunan dili manhatag sa mga
ig-suon. So, kaning usa kahektarya siya ra jud
ang naka-uma, wa manghatag ug bahin. So,
unsa’y buhaton ning upat, si A,B ug C? Sagdan
lang, anyway igsuon bitaw nila na? Mag-harvest
si E, magtan-aw ra jud silang upat. “kanindot ni
E, nang harvest na sad”. Unya sng lubi ron mahal
ra ba ang kilo, sila tawon nagsud-an ra ug buwad.
Unsa man ang buhaton ana nila? They could file
a case for partition against E. “Manoy ato nang
bahinon manoy”. “Unsay bahinon, nay sanggot
nako diri ai”. So niingon si A, “ah, maayo ani
bahinon”. Unya dili man musugot si E. Nindot
man unta to na magkasinabot ra. Di man pwede
magsinabot, so adto gyud sila sa court. Ang
problema ana kay si D, paparts man sad sila ni E
so okey rasad na di siya bahinan. Ingon siya, “ah,
di lang ko apil-apil sa inyong gubot oi”. So,
unsaon man ni ron nga ang interesado na mu-file
ug kaso kai si A, B, C ra man? Unsaon man ni ron
si D? Now, take note kani siya this is an action for
partition, there can be no valid judgement unless
all of these heirs will be joined in one complaint.
DIi man pwede na silang upat magbahin,
kinahanglan jud silang lima. So, unsaon man n
iron? Now kung dili gud musugot si D na adto nila
mu-apil, then D should be included as defendant,
you called it unwilling plaintiff. He should be
included as a defendant. Kung dili siya as a
plaintiff, dili man kaha siya musugot as kihante
then i-apil siya ug kiha becuase he is considered
as indispensable party.
What do you mean by an indispensable party?
Indispensable party is a real party in interest
without whom no final determination can be had
in an action.
Now, necessary party is a party who is not
considered as indispensable but ought to be join
as a party if complete relief is to be accorded as
to those compulsory parties or for a complete
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
determination or settlement of the claim subject
of the action. Kaning necessary party lahi ni sa
indispensable because if a party considered as
indispensable it is compulsory that he be joined.
So there should be a compulsory joinder if that
party is indispensable.
Sec. 8: NECESSARY PARTY
Section 8. Necessary party. — A
necessary party is one who is not
indispensable but who ought to be joined
as a party if complete relief is to be
accorded as to those already parties, or for
a complete determination or settlement of
the claim subject of the action.
Kaning necessary party lahi ni siya sa
Indispensable because if a party is considered as
indispensable, he should be joined. It is
compulsory that he should be joined so there
should be a compulsory joiner if that party is
indispensable.
Whereas a necessary party is different
from an indispensable party. Why? Because even
if a necessary party is not impleaded or if not
included in the case that judgment would still be
valid unlike in an indispensable party wherein the
judgment would be void.
Although a necessary party may not be
impleaded in a case but in order to have a
complete relief in a case or so that there could be
no multiplicity of suits the Court may require that
a necessary party be impleaded.
Then you could ask, can you give us an
example of a necessary party? Yes.
For example:
Si A ug si B nanghulam ug kwarta
ngadto kang C. Joint obligation and not solidary.
Kahinumdum pa mo kadtong joint and solidary
obligation ninyo? Solidary, mura ni siya ug
conspiracy, the obligation of one is obligation of
all. Whereas kaning joint, iya2x sila.
So for example A and B obtained a joint
obligation from C. so the obligation of A would
only be 150,000 whereas kang B is 150,000 kay
joint man sila. Pero kung solidary, then ang
obligation ni A could be 300,000 also that of B.
do you follow?
In a joint obligation, if (like in our
example) one of the debtors is not included in a
case okay ra na because he is only considered as
a necessary party. So for example if C would file a
case against A, he could only claim up to
150,000. Okay ra ba? Yes because Mr. B is
considered as a necessary party. However in
order to have a complete relief (para ma konpleto
jud kay 300,000 baya ang panilngunon ni C aron
wala nay laing kaso pa) it would be advisable
that B will just be joined because B is considered
as a necessary party.
Sec 9: NON-JOINDER OF NECESSARY
PARTIES TO BE PLEADED.
Section 9. Non-joinder of necessary
parties to be pleaded. — Whenever in any
pleading in which a claim is asserted a
necessary party is not joined, the pleader
shall set forth his name, if known, and shall
state why he is omitted. Should the court
find the reason for the omission
unmeritorious, it may order the inclusion of
the omitted necessary party if jurisdiction
over his person may be obtained.
The failure to comply with the order for his
inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does
not prevent the court from proceeding in
the action, and the judgment rendered
therein shall be without prejudice to the
rights of such necessary party.
Unsa toy hinungdan? Necessary party
lang man kaha siya unya nganong mas mayo
man nga i-apil siya? In order to avoid multiplicity
Page | 23

of suits. Mao pod na ang katarongan why is it
that joinder of causes of action and joinder of
parties are allowed to avoid multiplicity of suits.
So under first paragraph of Sec. 9, if the
court finds that ah…jurisdiction over the person
of the necessary party could be obtained the
Court may order that such necessary party
should be included in the case in order to avoid
multiplicity of suits.
The failure to comply with the order for
his inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party
does not prevent the court from proceeding in
the action, and the judgment rendered therein
shall be without prejudice to the rights of such
necessary party. (Sec. 9, Rule 3)
In other words if a necessary party is not
included, the proceedings can proceed. However
the judgment of that case cannot prejudice the
necessary party who is not included.
Sec 10: UNWILLING CO-PLAINTIFF
Section 10. Unwilling co-plaintiff. — If the
consent of any party who should be joined
as plaintiff can not be obtained, he may be
made a defendant and the reason therefor
shall be stated in the complaint.
Sec 11: MISJOINDER AND NON-JOINDER OF
PARTIES
Section 11. Misjoinder and non-joinder of
parties. — Neither misjoinder nor non-
joinder of parties is ground for dismissal of
an action. Parties may be dropped or added
by order of the court on motion of any party
or on its own initiative at any stage the
action and on such terms as are just. Any
claim against a misjoined party may be
severed and proceeded with separately.
Now, we have learn earlier that
misjoinder of causes of action shall not result to
the dismissal of the case. But the Court may
order that the misjoined cause of action may just
be separated.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
As regards to misjoinder and non-joinder
of parties, the same also cannot be a ground for
motion to dismiss.
Neither misjoinder nor non-joinder of
parties is ground for dismissal of an action.
Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage the action and on such
terms as are just. Any claim against a misjoined
party may be severed and proceeded with
separately. (Sec. 11, Rule 3)
For example:
So in our example earlier, bothers A, B,
and C file a case against E without including D.
sila nalang 3 maoy ni file batok ni E unya wala
gyud nila gi-apil si D dili paintiff dili pod
defendant. In that situation can Mr. E ask for the
dismissal of the case for the non-joinder of Mr. D
who is considered as an indispensable party?
Now the answer is NO. Because under the rules,
non-joinder of a party even if that party is an
indispensable party cannot be a ground for
dismissal of an action.
So what should the Court do? If there is a
party that is ought to be joined the Court will
order that he should be joined. The Court will
order the party concerned. So in this case, the
Court should order plaintiffs A, B, and C to amend
their complaint in order to include Mr. D.
Then what will happened if Mr. A, B, and
C will not comply with the order of the court? Gi-
orderan sila nga ipa-apil jud si D. wala gyud sila
maminaw kay naanad sa klase nga dili maminaw.
Unsa may buhaton sa Court? Then i-dismiss ang
kaso.
Ingon nga ug mis-joinder ug non-joinder
dili pwede ma-dismiss, ma-dismiss man lagi? Ang
hinungdan nganung gi dismiss sa korte dili ang
wala pag-apil kundi ang wala pag tuman sa order
sa Court. The ground of the dismissal of the case
is ot because of the mis-joinder or the non-
joinder of indispensable party but for the failure
to comply with the order of the Court because
failure to comply with the order of the Court is a
ground for the dismissal of the case under Rule
17…somewhere Rule 17, I think Sec. 2.
Sec 12: CLASS SUIT
Section 12. Class suit. — When the
subject matter of the controversy is one of
common or general interest to many
persons so numerous that it is
impracticable to join all as parties, a
number of them which the court finds to be
sufficiently numerous and representative as
to fully protect the interests of all
concerned may sue or defend for the
benefit of all. Any party in interest shall
have the right to intervene to protect his
individual interest.
What do you mean by a class suit?
When the subject matter of the
controversy is one of common or general interest
to many persons so numerous that it is
impracticable to join all as parties, a number of
them which the court finds to be sufficiently
numerous and representative as to fully protect
the interests of all concerned may sue or defend
for the benefit of all…(Sec. 12, Rule 3)
You should be familiar with the requisites
of a class suit.
What are the requisites of a class suit?
1. The subject matter of the
controversy is one of common or
general interest to many persons.
(VERY IMPORTANT!)
So there must be common general
interest. Common and not separate. Common
interest.
2. The parties affected are so
numerous that it would be
Page | 24

impractical to bring them all to
Court.
Meaning the interested person. In that
subject matter, there are so many and it would
be impractical for them to bring to court.
3. The party bringing the class suit are
sufficiently numerous and can fully
protect the interest of all concerned.
Daghan kayo ni sila. There is common
interest…usa ra…over the subject matter unya
daghan kayo ni sila and it would be impractical to
bring them all to court. Unya the Court will just
allow a portion of them…tungod sa ilang ka
daghan, the Rules allow just some of them to file
a case for and in behalf of all.
For example:
remember that case of Sulpicio Lines. Dili
kadtong bag-o. kadtong man siguro tong Dona
Paz. Then daghan kaayong mga nangamatay
adto. I think abot mga 3,000 ang mga namatay
ato. Unya, gawas nga daghang mga nangamatay
diha poy ni survive. Ang kadtong mga ni survive
ni file ug kaso for themselves and in behalf of
those other survivors ug kadto pod mga relatives
sa mga nangamatay. They filed a case as a class
suit.
Q: Is that case appropriate for class
suit?
A: According to the Supreme Court,
the answer is NO. Why? According to the SC, it’s
because the survivors have no interest in the
death of the other passengers. The interest is not
common but individual. Wala man kay labot
atong mga nangamatay. So kada paryente, iya2x
nga interest. That important requisite that I told
you that there must be common interest is not
present (in this case) because there is no
common interest but individual interest.
According to the SC, what is proper is
permissive joinder of parties because there is
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
common questions of law and facts. That is the
ruling of the SC in the case of Bulig2x Kita
Kamag-anak Association Et al. vs. Sulpicio
Line. May 19, 1989.
Another case: Kani, kunuhay mga
informal settlers ni. Kani-adto kani sila tawgon ni
ug squatters. Pero karon ikiha ka kung tawagon
ni sila ug squatter. Ang tawag karon nila informal
settlers. Association called themselves as Sulo ng
Bayan an association of informal settlers
occupying the properties of Araneta. They
subdivided this large land. Gi-angkon2x nila.
Unya each member has a lot. Then the Sulo ng
Bayan file a case to annul the title of Araneta.
They claimed to be now the owners of the
property.
Q: Was the case file in the name of
the real party in interest? Meaning, is the
association considered as the party in interest?
A: According to the SC, the answer
is NO because the association is not the one
occupying the lot. The individual member should
be the plaintiff.
Q: Can it be considered as a class
suit?
A: NO because each member is
interested only on his own lot. He has no interest
on the lot of another. In other words, the number
one requisite of a class suit is not present
because the subject matter is not a common
interest to all. what is proper is only joinder of
parties. Sulo ng Bayan vs. Araneta, Inc. 72
SCRA 347.
Q: Are there cases decided by the
SC wherein the Sc said that the same is
considered as a class suit?
A: YES.
One of these is the case of Borlaza vs.
Polistico 47 Phil 345. In this case, a group of
people agreed themselves to form an association
which they called Tornohang Polistico. Mura bitaw
ug “dawat2x”. Unya each member has to
contribute certain amount. And then every
Sunday after mass, ½ of the collection will go to
the treasurer of the association and the other ½
will be raffled off. Unya after several years,
midako na tong ilang pundo sa association. Unya
kanang kwarta kay init man na. Some members
in behalf of some members decided to file a case
against the officers to render an accounting of all
the amounts.
Q: Is the suit filed by some
members for themselves and in behalf of the
other members proper? Can it be considered as a
class suit?
A: according to the SC, yes because
it would be impractical to require all members to
appear in court. A number of them may sue for
the benefit of all. the subject matter in the
controversy is one of common or general interest
to all.
Another example of a case wherein the
SC considered it as a class suit is that case of
Oposa vs. Factoran 224 SCRA 12. Are you
familiar with this ruling? Young children together
with their parents filed a case against Sec.
Factoran of DENR asking the court to order the
DENR to cancel all existing timber license
agreement to preserve all the remaining forest in
the country. They (plaintiffs) say that they
represent their generation and the generations
yet unborn.
Q: Is it a class suit?
A: YES. The personality of the
minors to sue for the succeeding generations is
in the concept of INTER GENERATIONAL
RESPONSIBILITY. Every generation has a
responsibility to preserve the ecology.
Lain pa nga klase sa class suit kaning
gitawag nato nga
 TAXPAYER SUIT– is in a nature of a class
suit.
Page | 25

 DERIVATIVE SUIT
This was asked in the bar once.
Distinguish Class Suit from Derivative Suit?
Derivative Suit – refers to a suit filed by
a minority stockholder in behalf of the entire
corporation or of the other stockholders because
intra-corporate remedy is unavailable. It is
provided by the Corporation Code.
Class suit by the ways is an exception to
the rule. In case of doubt, the Court should not
allow class suit because the general rule is all
parties must be included in the suit. Diha gud sa
class suit, dili tanan e-included. Just a
representative of the group.
Under Sec. 12, any party in interest may
intervene to protect his individual interest. So
kadtong uban nga wala ma-apil pwede sila mo
apil.
Sec. 13: ALTERNATIVE DEFENDANTS
Section 13. Alternative defendants. — accordingly.
Where the plaintiff is uncertain against who
of several persons he is entitled to relief,
he may join any or all of them as
defendants in the alternative, although a
right to relief against one may be
inconsistent with a right of relief against
the other.
Q: Can there be alternative
defendants?
A: YES. Sec. 13 Rule 3
For example you are riding or boarding a
passenger jeepney or passenger bus. While it is
running, it was bumped by a speedy dump truck
resulting to your injuries.
Q: kinsa may i-kiha nimo?
A: You can file a case against the
passenger bus were you are boarding for a
violation of or for breach of contract because you
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
were not brought safely. Under the Transportation
Law, a common carrier is duty bound to bring
their passenger to his destination using extra
ordinary diligence. So you can file a case against
the bus driver and the operator. You can also
implead as a defendant the driver or the owner of
the dump truck that caused the accident –
alternative defendants. You can joined any or all
of them even if the right to relief against one
maybe inconsistent of the right to relief against
the other.
Sec 14: UNKNOWN IDENTITY OR NAME OF
DEFENDANT
Section 14. Unknown identity or name of
defendant. — Whenever the identity or
name of a defendant is unknown, he may be
sued as the unknown owner heir devisee, or
by such other designation as the case may
require, when his identity or true name is
discovered, the pleading must be amended
Q: Can you file a case against an
unknown defendant?
A: YES. The Rules allow the plaintiff
to file against an unidentified defendant.
Foe example: Naglakaw ka unya
nadagitan ka ug reckless driver unya ang imo
nahibaw-an ang plate number lang. You can file a
case against the drive who is unknown. Ang
problema lang niana unsaon nimo pag serve sa
summons. Unya ibutang nato nga there could be
proper service od summons, unsaon man sad
nimo pag claim sa imong daug kung mo daug ka?
Unsaon man nimo pag enforce sa judgment?
Sec. 15: ENTITY WITHOUT JURIDICAL
PERSONALITY AS DEFENDANT
Section 15. Entity without juridical
personality as defendant. — When two or
more persons not organized as an entity
with juridical personality enter into a
transaction, they may be sued under the
name by which they are generally or
commonly known.
We have discussed this earlier. This refers
to an entity without juridical personality. So, two
or more persons who represented themselves to
be a corporation can be sued as a corporation.
But such group of person cannot sue. They can
be sued but cannot sue.
For example: adunay group sa mga tawo.
They represent themselves to be duly registered
with the SEC unya mi enter ug transaction nimo
pwede nimo sila ikiha using the name that they
are using…that they are representing to be. And
in their answer, they should state or reveal all the
names and addresses of the persons composing
the said entity.
Sec. 16: DEATH OF PARTY; DUTY OF
COUNSEL
Section 16. Death of party; duty of
counsel. — Whenever a party to a pending
action dies, and the claim is not thereby
extinguished, it shall be the duty of his
counsel to inform the court within thirty
(30) days after such death of the fact
thereof, and to give the name and address
of his legal representative or
representatives. Failure of counsel to
comply with his duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed
to be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
Page | 26

The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the
counsel for the deceased party, or if the
one so named shall fail to appear within the
specified period, the court may order the
opposing party, within a specified time to
procure the appointment of an executor or
administrator for the estate of the
deceased and the latter shall immediately
appear for and on behalf of the deceased.
The court charges in procuring such
appointment, if defrayed by the opposing
party, may be recovered as costs.
Sec. 16 is about a situation wherein a
party dies either plaintiff or defendant. Now,
what will happen if a party dies either plaintiff or
defendant?
Kung mamatay gani nang imong
girepresentahan nga client, either plaintiff or
defendant, ang inyong lawyer-client relationship
ends. Unya kay wala na man moy lawyer-client
relationship, unsa nalang jud ka duty ang imong
nahabilin. You cannot anymore represent him
because he is already dead. Unsa naman lang
imong duty? This is the only remaining duty you
have. It is to inform the Court regarding the
death of your client anf to give the court
the names of his representatives (name of
the executor or the administrator if any.)
Kung wala gani siyay executor or administrator,
then the names or the heirs.
Q: Why is it you will give the court
the names and addresses of the representative?
A: Because the Court after
informing…after being informed of the death or
your client and stating therein the name of the
representative of the estate or the heirs, the
Court will have to order that the administrator or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the executor or the heirs shall substitute for the
dead party.
Q: What will happen if the lawyer
fails to inform the Court?
A: He can be subjected to
disciplinary action. So that may involve
disbarment. So you should take note of this.
Q: Within what period that the
lawyer should inform the court regarding the
death of his client?
A: Within 30 days after knowing
such death or after such death of his client.
Q: Then you might ask, is there a
need to issue another summons to the heirs or to
the representative of the estate?
A: NO. There is no need to issue
another summon. The Court will just issue an
order directing them to substitute.
NOTE: Substitution is only available
when the pending action involves a claim that is
not extinguished.
Duna ba gud kaso nga kun mamatay ang
plaintiff mamatay sad ang maong kaso? YES.
Pananglitan specific performance.
Pananglitan gusto ka magpapintal sa imong
hitsura unya wala siya mo pintal so gi file-lan
nimo us specific performance kay gusto jud ka
ipapintal imong hitsura. Namatay man while the
case is pending. What will happen to the case?
Aw wagtang sad because the claim against the
defendant does not survive.
But suppose your case involves property
rights for example recovery of ownership. Imong
gifile-lan ug kaso ang defendant tungod kay
nangangkon sa imong yuta. Namatay ang
defendant. Mopadayon/ mo survive ba ang imong
claim? YES. Dili na siya mo uban adtong
defendant. So, kinsa naman roy imong kontra?
Ang imong mga kontra ang mga heir…ang mga
children because they will be affected by your
claim.
Q: What is the purpose? What is the
reason why the Court should order the heir or the
representative of the estate to substitute?
A: Because they will later on be
affected by the judgment of the Court. Naliman
ka kung mo daug ang plaintiff, ah kuhaon tong
yuta unya ma deprive ilahang right of inheritance
over atong subject nga yuta.
Q: What will happen if the Court will
not be informed regarding the death of the party?
For example defendant. Unsa may mahitabo
kung pananglitan namatay na ang defendant
unya wala pa na inform ang Court?
A: Now, the judgment will be
considered void.
Q: why void? Does it mean that the
court lose jurisdiction over the case?
A: NO. Ang hinungdan dili tungon
kay mawagtangan ug jurisdiction ang court. Unsa
man diay ang hinungdan? Ang hinungdan nga
void ang decision sa Court is because there is
denial of due process to the heirs who is affected
by the decision.
Pero nanag exception ana in the case of
Florendo vs. Coloma G.R. No. 60544. Unsa
man d I nahitabo aning Florendo vs. Coloma
nganu man nga na valid man ang decision ani?
So in one case where the counsel failed to
comply with his duty under Sec. 16 to inform the
court about the death of his client- the defendant
and whose substitution of such party who was
affected by such judgment and proceeding
therein are valid. If the action survive the death
of the party and such decision is binding upon his
successor in interest.
Unsa man diay nahitabo ining Florendo
Case?
The defendant died while the case is
pending on appeal in the Court of Appeals and
consequently involve only of a review of the
evidence presented in the participation of the
original party litigants. Also the binding effect of
Page | 27

the judgment in the ejectment case upon the
successors in interest are especially provided
for…so ang mahitabo niini…exception to the rule
ni. Kay ngano man? Ang kaso nadecisionan na sa
trial court unya namatay ang defendant only
when the case was already pending appeal
before the court of Appeals.
So, usbon nato. The rule on
substitution of the heirs is not a matter of
jurisdiction but a requirement of due
process.
For example, namatay ang party
defendant. Na inform ang court regarding the
death of the defendant as well as the…the Court
also was supplied with names of the heirs or the
representative. But the Court forgot to issue an
order directing a substitution of the heirs. But
even if there was no order of substitution, ang
mga heirs mismo mi adto didto sa court and
presented evidence. Kada hearing ang mga
children mo adto ra gihapon sila ug sa dihang ila
nang turno sa pag present ug evidence mi
presentar pod sila ug evidence. But the problem
is the judgment is against them. And so when
they receive the judgment that is against them,
they now question the validity of the decision. Is
the decision valin?
In the case of Napere vs. Barbarona
January 31, 2003 according to the SC, the
answer is YES because the rule on substitution of
the heirs is not a matter of jurisdiction but a
requirement of due process. So even if the court
did not issue an order requiring them to
substitute but the heirs where able to participate
in the proceedings and even presented evidence
then there is no denial of due process. So kung
mamatay gani ang party tan-awon nimo kung mo
survive ba ang claims. Kung mo survive gani ang
claims then the court should order the heirs and
the representative of the estate to substitute.
Examples of Actions that Survives
(against the heirs and representatives):
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 Actions to recover real or property
against the estate,
 Actions to enforce liens thereon
 Actions to recover for an injury to a
person or property by reason of tort or
delict committed by the deceased.
The heirs of the deceased may be
allowed to be substituted for the deceased,
without requiring the appointment of an executor
or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days
from notice.
If no legal representative is named by
the counsel for the deceased party, or if the one
so named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs.
So in other words, if the heirs or the
representative of the estate would not appear or
if there is no legal representative then the court
will order the opposing party secure a
representative for the estate and whatever
expenses incurred by the opposing party in
securing for a representative for the estate shall
be reimbursed by that party.
Sec. 17: DEATH OR SEPARATION OF A PARTY
WHO IS A PABLIC OFFICER
Section 17. Death or separation of a
party who is a public officer. — When a
public officer is a party in an action in his
official capacity and during its pendency
dies, resigns, or otherwise ceases to hold
office, the action may be continued and
maintained by or against his successor if,
within thirty (30) days after the successor
takes office or such time as may be granted
by the court, it is satisfactorily shown to
the court by any party that there is a
substantial need for continuing or
maintaining it and that the successor
adopts or continues or threatens to adopt
or continue to adopt or continue the action
of his predecessor. Before a substitution is
made, the party or officer to be affected,
unless expressly assenting thereto, shall be
given reasonable notice of the application
therefor and accorded an opportunity to be
heard.
This refers to the death or separation of a
party who is a public officer. There are instances
wherein the the defendant or wherein the plaintiff
is a public officer. Nagnong nahitabo man nga
nahimo siyang party sa case? It could be that he
filed a case in his official capacity and not on his
personal capacity for example as mayor of the
city.
So what will happen if the public officer
who is the party of the case dies? Now, the action
can be continued or maintained by or against his
successor.
…within thirty (30) days after the
successor takes office or such time as may be
granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial
need for continuing or maintaining it and that the
successor adopts or continues or threatens to
adopt or continue to adopt or continue the action
of his predecessor…
Page | 28

Sec. 17 is another form of substitution. In
this case, the party is a public officer. So
pananglitan ang Mayor sa syudad sa sugbo
gusting ipa demolish kadtong mga nagpuyo
daplin sa sapa kay hazard kung nay baha or naka
obstruct sa pass age sa tubig. For example
the residents that will be affected by the
impending demolition file a case against the
mayor. For example they would file a case of
injunction against the mayor to injoined the
mayor from dismantling their houses. And while
the case is pending, the mayor (just as an
example) dies.
What will happen to the case? If the
successor will have the same stand or the
successor would adopt the stand of the deceased
mayor, then the court will order that the
successor will substitute for the mayor.
Sec: 18 INCOMPETENCY OR INCAPACITY
Section 18. Incompetency or incapacity.
— If a party becomes incompetent or
incapacitated, the court, upon motion with
notice, may allow the action to be
continued by or against the incompetent or
incapacitated person assisted by his legal
guardian or guardian ad litem.
What will happen if a party to a case will
become incapacitated? This is another case of
substitution. Pananglitan ang plaintiff pagfile niya
sa kaso sakto pag pamuot. Pero lagi kay sige
man ug latay2x na-usab…nilikoy. Nag sige na ug
tanom ug seedless nga grapes. So what will
happen to the case? Pag abot didto sa korte sige
naman ug tikoko2x. gipangutana sa Judge, “nag
unsa man ka diha?” Nag tanom ko ug grapes.
Asa mang liso nimo? Seedless man ni.   
So what will happen now to the case nga
gi filed? He could be substituted. The court may
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
allow the action to be continued by or against
the incompetent or incapacitated person assisted
by his legal guardian or guardian ad litem.
In other words, pwede ra nga if walay
substitution pwede ra nga ang court mo require
that he should be assisted. So pwede ra nga
ssistihan siya ug guardian or the court will
appoint guardian ad litem to assist the
incompetent.
Sec: 19: TRANSFER OF INTEREST
Section 19. Transfer of interest. — In case
of any transfer of interest, the action may
be continued by or against the original
party, unless the court upon motion directs
the person to whom the interest is
transferred to be substituted in the action
or joined with the original party.
Meaning to say, the plaintiff or the
defendant now has transferred his interest.
For example:
Ikaw ron si C. Mi-file ka ug kaso batok ni
D for recovery of a piece of property. And imong
property, while didto ka sa abroad, pagbalik nimo
wala na. Gi-angkon na ug lain. So ni file ka ug
kaso batok ni D. now, dili ka gusto sa maong kaso
so imong gibaligya imong property. Mi-file ka ug
kaso pero nadugay gisamokan ka. “kapoya sige
atobang sa korte oi”. Imong gibaligya imong
property. Apil ang kaso imong gibaligya. Misugot
man pod ang buyer si B. Per okay naa man
kaso…there is pending litigation, bubarato ra
gyud.
What will happen now to the case? Wala
na man si C. wala na man siyay interest over the
lot. There could be transfer of interest. So, Mr. B
may substitute for Mr. C as the plaintiff in the
case.
Sec. 20: ACTION AND CONTRACTUAL MONEY
CLAIMS
Section 20. Action and contractual money
claims. — When the action is for recovery of
money arising from contract, express or
implied, and the defendant dies before
entry of final judgment in the court in which
the action was pending at the time of such
death, it shall not be dismissed but shall
instead be allowed to continue until entry
of final judgment. A favorable judgment
obtained by the plaintiff therein shall be
enforced in the manner especially provided
in these Rules for prosecuting claims
against the estate of a deceased person.
This has relation to the death of a party.
Naghisgot man ta ganina ug death of a party
ganina diba? Now, we have learn that when a
party dies and the claims survives the case will
continue but the representative of the estate or
the heirs of the deceased party shall substitute
for the deceased.
What about if the action if for contractual
money claims?
Kaning money claims under Sec. 20
limitado lang ni sa contractual express or
implied. Dili ni siya applicable sa tanan nga
money claims. Applicable lang ni siya sa mga
contractual either express or implied.
For example, contract of loan.
Pananglitan nay nanghulam nimo naa jud moy
kontrata. Unya namatay ang defendant. Unsa
may buhaton? Should it be dismissed?
Under Sec. 20, when the action is for
recovery of money arising from contract, express
or implied, and the defendant dies (Ang
mamatay gani ang defendant ra. Meaning to say
this Sec. is applicable only for contractual money
claim and when the defendant dies) before entry
of final judgment.
Page | 29

The action shall continue. The Court
should not dismiss the case but the proceedings
of the case shall continue. Unya unsay buhaton
sa korte? Kay namatay man ang defendant, then
there should be substitution because the
proceeding shall continue until entry of final
judgment.
Unya kung makadaug ang plaintiff? Kinsa
may iyang panilngan nga patay naman tong usa?
Unsaon pa niya pagpaningil? Unsaon pa niya pag
enforce sa judgment nga patay na man? Now,
the claim shall be enforce against the estate.
Saato pa, pananglitan nay probate proceedings
didto sa korte, kinahanglan siya mo file ug
money claims didto. Kadtong plaintiff mo file siya
daan ug money claims. Nahinumdom mo sa
inyong special proceedings? Mo file siya ug
money claims didto. “Reserbahe ko diha ha kay
naa raba koy claim pending pa.” And so if
makadaug jud siya, adto niya e-claim sa estate.
Sec. 21: INDIGENT PARTY
Section 21. Indigent party. — A party may
be authorized to litigate his action, claim or
defense as an indigent if the court, upon an
ex parte application and hearing, is
satisfied that the party is one who has no
money or property sufficient and available
for food, shelter and basic necessities for
himself and his family.
Such authority shall include an exemption
from payment of docket and other lawful
fees, and of transcripts of stenographic
notes which the court may order to be
furnished him. The amount of the docket
and other lawful fees which the indigent
was exempted from paying shall be a lien
on any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Any adverse party may contest the grant of
such authority at any time before judgment
is rendered by the trial court. If the court
should determine after hearing that the
party declared as an indigent is in fact a
person with sufficient income or property,
the proper docket and other lawful fees
shall be assessed and collected by the clerk
of court. If payment is not made within the
time fixed by the court, execution shall
issue or the payment thereof, without
prejudice to such other sanctions as the
court may impose.
We have discussed last meeting that
when you file a case, the same shall will coupled
with the payment of the docket fees in order for
the Court to acquire jurisdiction over the action. If
a party filing for the case the exact amount of the
docket fees is not paid, the court may require the
plaintiff within a certain period of time to pay the
docket fees if not the action shall be dismissed.
Under Sec. 21, if a party for example the
plaintiff does not have enough money or property
to pay for the docket fees, he could litigate his
action as an indigent litigant but the same
requires approval with the court.
He has to file a motion/ request. (Kanang
motion gud kung inato na nga pagkasulti,
request. Kay mag abogado man mo, ayaw jud mo
ug gamit anang request kay makabasa tong
examiner ana hagbongon jud mo. Nganu man?
Kay dili ka kahibalo mag inabogado. So instead of
request, mo gamit ka ug motion.) Motion to
litigate as indigent party.
So in other words, under Sec. 21, when a
party wishes to litigate as an indigent, he should
attach to his complaint a motion. So mo file ka ug
complaint. Naa kay kiha. Didto sa imong kiha,
ubanan nimo ug motion to litigate as indigent so
that you will be exempt from paying the docket
fees if your motion is approved.
Now, the motion to litigate as an indigent
could be file ex parte. What do you mean by ex
parte? Meaning when without the presence or
without notice to the adverse party. And you
have to attach to you motion the document to
prove that you are indigent.
If no legal representative is named by the
counsel for the deceased party, or if the
one so named shall fail to appear within the
specified period, the court may order the
opposing party, within a specified time, to
procure the appointment of an executor or
administrator for the estate of the
deceased and the latter shall immediately
appear for and on behalf of the deceased.
The court charges in procuring such
appointment, if defrayed by the opposing
party, may be recovered as costs.
The court may order the opposing party to
procure the appointment of an executor/
administrator for the estate of the deceased and
the latter shall immediately. The court charges in
procuring such appointment may be recovered as
cost.
So in other words if the heirs or representatives
would not appear of there is no legal
representative named then the court will order
the opposing party to secure a representative for
the estate and whatever costs incurred by the
opposing in securing a representative for the
estate will be reimbursed by that party.
Sec. 17. Death or separation of a party who
is a public officer.
When a public officer is a party in an
action in his official capacity and
during its pendency dies, resigns, or
otherwise ceases to hold office, the
action may be continued and
maintained by or against his
successor if, within thirty (30) days
after the successor takes office or
such time as may be granted by the
court, it is satisfactorily shown to
the court by any party that there is a
Page | 30

substantial need for continuing or
maintaining it and that the
successor adopts or continues or
threatens to adopt or continue the
action of his predecessor. Before a
substitution is made, the party or
officer to be affected, unless
expressly assenting thereto, shall be
given reasonable notice of the
application therefor and accorded an
opportunity to be heard.
This refers to death or separation of a party who
is a public officer, there are instances wherein a
defendant or wherein a plaintiff is a public officer.
It could be that he filed the case in his official
capacity not in his personal capacity.
Example: as mayor of the city. So what will
happen if the public officer who is a party to that
case dies? The action may be continued and
maintained by or against his successor.
In other words Sec 17, is another case of
substitution. In this case the party is a public
officer. Example. Ang mayor sa ciudad
sasugboiyangipa demolish
angmgabalaysadaplinsasubakaynaka disrupt sa
passage sa drainage, the residents that will be
affected by the ipending demolition. So they will
file an injunction to enjoin the mayor to demolish
their houses. And while the case is pending ,the
mayor just for example died so what will happen
to the case? If the successor would adopt the
stand of the deceased mayor the court will order
that the successor will substitute the deceased
mayor.
Sec. 18. Incompetency or incapacity.
If a party becomes incompetent or
incapacitated, the court, upon
motion with notice, may allow the
action to be continued by or against
the incompetent or incapacitated
person assisted by his legal
guardian or guardian ad litem.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
So what will happen if a party to a case will
become incapacitated? This is another instance
of substitution.
Example: A plaintiff, saktopagpamuot,
perolagikay nag sige man siyaug latay2x nausab,
nilikoy, nag sige nag tanumug seedless nga
grapes. So what will happen to the case now? He
could be substituted,orthe court may allow the
action to be continued assisted by his guardian
or guardian ad litem. In other words
pwederangawalay substitution and the court will
allow that he should be assisted.
Sec. 19. Transfer of interest.
In case of any transfer of interest,
the action may be continued by or
against the original party, unless the
court upon motion directs the
person to whom the interest is
transferred to be substituted in the
action or joined with the original
party.
Meaning to say the plaintiff or defendant has
transferred his interest.
Example: C filed a case against D for recovery of
your piece of property. Tuanakasa abroad
pagbaliknimowalana, giagaw nag lain. So mi file
kagkasobatokni D, now dilika gusto
samaongkasoionggibaligyaimong property. Mi file
kagkasoperosamukanka, so imonggibaligyakang
Mr. B. angimong property
apilangkasoimonggibaligya. Now what will
happen now to C, walanamansiyay interest over
the lot. There will now be a transfer of interest.
So Mr. B may substitute for Mr. C as the plaintiff
to the case.
Sec. 20. Action on contractual money
claims.
When the action is for recovery of
money arising from contract,
express or implied, and the
defendant dies before entry of final
judgment in the court in which the
action was pending at the time of
such death, it shall not be dismissed
but shall instead be allowed to
continue until entry of final
judgment. A favorable judgment
obtained by the plaintiff therein
shall be enforced in the manner
especially provided in these Rules
for prosecuting claims against the
estate of a deceased person.
This has relation to the death of a party. We have
learn that when a party dies and the claims
survive/s the case may continue but the heirs or
represeantives shall continue for the deceased.
What if the case os for contractual money
claims?Under this section, sec 20.Kaningmaong
money claims under sec 20.Limited only to
contractual either express or implied.Dilini
applicable satanang money claims. Example:
contract of loan, dunaynangutangnimo so
dunajudmoycontratanyanamatayang defendant
before entry of final judgment. The action should
continue and there should be substitution and
the proceeding should continue until the entry of
final judgment. Kung makadaugang plaintiff kinsa
man iyangpaninglanngapataynamanang
defendant? The claim shall be enforced against
the estate. So samtangdunay probate
proceedings sa estate sa defendant mu file
siyadidtoug money claims.
Sec. 21. Indigent party.
A party may be authorized to litigate
his action, claim or defense as an
indigent if the court, upon an ex
parte application and hearing, is
satisfied that the party is one who
has no money or property sufficient
and available for food, shelter and
basic necessities for himself and his
family.
Such authority shall include an
exemption from payment of docket
and other lawful fees, and of
transcripts of stenographic notes
which the court may order to be
furnished him. The amount of the
docket and other lawful fees which
the indigent was exempted from
Page | 31

paying shall be a lien on any
judgment rendered in the case
favorable to the indigent, unless the
court otherwise provides.
Any adverse party may contest the
grant of such authority at any time
before judgment is rendered by the
trial court. If the court should
determine after hearing that the
party declared as an indigent is in
fact a person with sufficient income
or property, the proper docket and
other lawful fees shall be assessed
and collected by the clerk of court. If
payment is not made within the time
fixed by the court, execution shall
issue for the payment thereof,
without prejudice to such other
sanctions as the court may impose.
We have discussed last meeting the same should
be paid docket fees in order for the court to
acquire jurisdiction over the action.if upon the
filing of the case the exact docket fee is not paid,
the court may allow the plaintiff to pay the
required fee or else the case should be dismiss.
But under Sec 21. The court may allow a party to
file as a indigent litigant. So the plaintiff will file a
MOTION TO LITIGATE AS AN INDIGENT so that he
will be exmept from paying the docket fee. This
motion could be filed ex parte. And attached to
the motion documents to prove that indeed you
are an indigent. Requisites:
1. A certificate from the DSWD that
indeed you are an indigent
2. A certification from the municipal or
city assessor’s office that indeed you
do not own any property.(no money
or property sufficient and available
for food, shelter and basic necessities
for himself and his family.)
Sa unatawagani pauper litigant perokarondilina,
indigent na.ang indigent
dunakaykwartaperoimongkwartadili enough para
e litigate ugkaso.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What will happen if the court will allow you to
litigate as an indigent? You will be exempted from
paying docket fees. But this one is a misnomer.
Kay contingent man nisiya. Unyaraka pa
bayronkung mu daugka. Kay kung exempted
dilijudkapabayron bias pagdaugka. So here
actually e deferred langangpagbayadsa docket
feesunyarakapaningaln kung mudaogka.
Can a juridical person litigate a case as an
indigent?For example kanangmga charity
institutions, or religious institutions.NO. sec 21 is
applicable only to natural persons and not to
juridical institution.
What is the reason why a indigent litigant can file
as an indigent? This is in relation to the
constitutional right of a person to free access to
the courts.
REMEMBER: must attaché to his motion an
affidavit that indeed he is an indigent.
Example: Ang papa mi file ugkaso. Now duna
man siyayanakdidtosa abroad. Can he be
considered as an indigent? Or should the his child
be also required to execute an affidavit.
Kaningpag execute ug affidavit of indigencyang
litigant ra.Dili necessary
ngaangkatongiyangmgaparyente mu execute
pudug affidavit of indigency. It is only the litigant
that is required to execute the affidavit of
indigency.The rule does not require that all
members of the litigants immediate family must
likewise execute sworn statement in support of
the motion.
Sec. 22. Notice to the Solicitor General.
In any action involving the validity of
any treaty, law, ordinance, executive
order, presidential decree, rules or
regulations, the court, in its
discretion, may require the
appearance of the Solicitor General
who may be heard in person or
through a representative duly
designated by him.
The court may allow the appearance of the sol
gen. in cases involving declaratory
relief.example
RULE 4
VENUE OF ACTIONS
Section 1. Venue of real actions.
We come to know that actions could be REAL or
PERSONAL. The classification is important for the
purposes of venue. Unsa man ning real actions?
When the subject matter of the case involves real
property, title to or possession or ownership or
any interest over real property. Now all other
actions are considered personal actions.
Why is this important to determine whether the
action is personal or real action? important for
puposes of determing venue.
Actions affecting title to or
possession of real property, or
interest therein, shall be
commenced and tried in the proper
court which has jurisdiction over the
area wherein the real property
involved, or a portion thereof, is
situated.
Example:
A case involves a recoveyr of ownership
or possession.
AnggilalisanngayutatuasaTagbilaran, Bohol,ang
plaintiff nianagpuyosa Cebu City, ang defendant
naa nag puyosaMandaue. Question: asa man
nimo e file ang case?AdtosaTagbilaran, Bohol.
Because that is a case involving Real Action.it
should be where the real property is located.
Real Action otherwise known as LOCAL ACTION
Forcible entry and detainer actions
shall be commenced and tried in the
municipal trial court of the
municipality or city wherein the real
Page | 32

property involved, or a portion
thereof, is situated.
Real Action otherwise known as LOCAL ACTION.
Sec. 2. Venue of personal actions.
All other actions may be commenced
and tried where the plaintiff or any
of the principal plaintiffs resides, or
where the defendant or any of the
principal defendants resides, or in
the case of a non-resident defendant
where he may be found, at the
election of the plaintiff.
Katongdili ma classify nga real actions aw…
Personal action na.Where to file personal action?
Emphsis on ANY of the prinicipal plaintiffs reside
or where ANY of the defendant resides or in case
of a non-resident defendant where he may be
found at the election of the plaintiff. So
importantejudkaayungamka determine
kakungunsanaclasenga action because that will
involve venue. KANANG COLLECTION OF SUM
OF MONEY PERSONAL NA OR REAL?
PERSONAL! KAY DILI MAN MU INVOLVE UG
REAL PROPERTY. MU INVOLVE GANI UG REAL
PROPERTY, REAL ACTIONS NA!
What will happen if you file the case in a worng
venue? Your case can be subjected to a motion to
dismiss or an affirmative defense on the ground
that you case was filed in an IMPROPER VENUE.
Ayawggamitanang“wrong” venue, legal term ana
is “improper”.
TAKE NOTE: Failure to object timely or failure to
raise the objection as to improper venue will be
considered waived. So you should file the motion
BEFORE FILING AN ANSWER. OR IF YOU HAVE
FILED AN ANSWER, YOU SHOULD INCLUDE IT AS
ONE OF YOUR AFFIRMATIVE DEFENSES.
Kanisiyang Venue of Personal Actions this is
called TRANSITORY ACTION. An action the venue
of which depends on which the parties resides
regardless of where the cause of action arose.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Can the court dismiss motuproprio the case on
the ground of improper venue? NO, there has to
be a motion, because it can be waived.
As regards the corporation, the action of the
plaintiff corp should be filed where its principla
office is located and not where its branche/s are
loacated. Example. Main office is in Manila and
branch in Cebu, the defendant is from Tagbilaran,
Bohol, can he file a case for sum of money in
Cebu? Where can he file his case? No he cannot
file it in cebu. It is only between Manila and
Tagbilaran. Why not in Cebu City? Because
theprinicipal office is in Manila and the defendant
is in Tagbilaran.
Sec. 3. Venue of actions against non-
residents.
If any of the defendants does not
reside and is not found in the
Philippines, and the action affects
the personal status of the plaintiff,
or any property of said defendant
located in the Philippines, the action
may be commenced and tried in the
court of the place where the plaintiff
resides, or where the property or
any portion thereof is situated or
found.
Kaningmga non-residents, unyawalapagyud nag
puyodrisaPilipinasunsamanisiya? He could be a
mere tourist, unyakay mere tourist man xa. Pag
tour niyadrinanghuwamsiyasadihang pa
bayrunnasiyamilayas, mibaliksaiyangnasud.
Pwede b aka maka file ugkaso against niya?
Dilijud.
But if the case to be filed involves personal status
of the plaintiff, so saato pa res nani. Kay wala
man siyadiripwedengaadtoangkaso e file where
any of his property or any portion thereof is
situated.
If the case affects status, then where the plaintiff
resides. Repeat. Kanangkaso against a foreigner,
a defendant who is a non resident and cannot be
found in the Philippines, mu prosper langna if the
court cannot acquire jurisdiction over the res, if it
is an action in rem or quasi in rem. If the action is
purely action in personam, it will not prosper.
Example of cases that involves/ affects the
personal status of a plaintiff?
A case filed by the plaintiff for recognition, gusto
siaynga mag parecognizengaanakjudsiya. Does it
involve the personal status of the plaintiff? Yes.
Peroasa man naniya e file
walanamandiriangiyang papa kaytuanamansa
abroad?He can file it where he resides (where the
plaintiff resides). Will it prosper? Yes because that
involves the res, that is considered as an action
in rem.
Take note of the Venue Hap!...
there are instances wherein the rules on venue
do not apply. Under dection 4
Sec. 4. When Rule not applicable.
This Rule shall not apply:
(a) In those cases where a
specific rule or law provides
otherwise; or
Example:
1. Law on Libel- under 360 of the RPC, that the
action can be filed in any of the places where the
libelous article was published. And in case of a
public officer ngatuadidtona base sa Manila, the
case could be filed in Manila.
(b) Where the parties have
validly agreed in writing
before the filing of the action
on the exclusive venue
thereof.
there should be an agreement in writing and that
agreement should be made before the filing of
the case. And what is that agreement all about?
That is regarding the exclusive venue of the case.
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Under this exception the agreement should be
restrictive not permissive. What do you mean
by restrictive? There should be words that would
expressly indicate that the parties have agreed
on the exclusive venue.
Example: 1. Exclusively- any case that may arise
out of this contract shall be filed exclusively in
the courts in Cebu City.
Sa ato pa bisan pa angplainitifftaga Manila ang
defendant tageDumaguetearirajudefileang case
sa Cebu. Nangkaywala may partingataga Cebu
City…aw walaymahimokaymao may
nakasabutan. How do you know that the case
should only be filed in cebu? Because of the word
exclusively. Perowalaganinaang word nga
exclusively or other similar words, then
kanangmaong Cebu ngagibutangdidtongawala
exclusively maskinnaa pa naaang“shall”,
kaykanang word nga exclusively
maonaanggitawagngarestrictive, what will
happen is that Cebu City shall only be considered
as an additional venue, this is now a permissive
one.
Example 2. Waiving for this purpose any other
venue
Example 3. Shall only be filed in Cebu City-
Pwede “Shall” pero nay apilyedonga “only” “Shall
only”
Example 4- To the exclusion of the other courts
Or any word/s of similar imports
Kung walaganiningmga words, the stipulation will
be deemed as merely an agreement on
additional forum and not as limiting venue to
specific place.
Legazpe vs. Republic
July 23, 2008
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Take note: There is a provision in the Let us now go to Rule 6. We will be discussing the
Consitution that the SC has the power to order rule on summary procedure separately.
change venue, either a criminal or civil case.
Remember the case involving the Ampatuans. In RULE 6
criminal cases we come to know that the place of KINDS OF PLEADINGS
the commission of the crime not only determines
the venue but also jurisdiction of the court. So
necessarily the case has to be filed in the court Section 1. Pleadings defined.
that has territorial jurisdiction of the place where
the crime is committed. But there are instances Pleadings are the written statements of the
to avoid miscarriage of justice the court can respective claims and defenses of the
order the change of venue. But take note this parties submitted to the court for
power exclusively belongs to the Supreme appropriate judgment.
Court. So the lower court cannot just change the
venue because it is only with the Supreme that
Is a motion considered a pleading? No. a motion
has the authority or power to change the venue. is different from a pleading. Although angmga
lawyers and even judged sometimes would use
Contract of Adhesion- it must be in writing and the term pleading applicable also to motion. But
not only that, the agreement of venue must be
strictly speaking Motion is not a pleading.
restrictive. How can you say that the venue is
restrictive? By the presence of those words that
we have just mentioned. Examples of pleadings:
1. Complaint
Sweet Lines Inc. vs. Teves May 19, 1978
2. Counter-claim
3. Cross claim
RULE 5 4. Third party complaint etc
UNIFORM PROCEDURE IN TRIAL COURTS 5. Complaint in intervention
Section 1. Uniform procedure. Sec. 2. Pleadings allowed.
The procedure in the Municipal Trial Courts The claims of a party are asserted in
shall be the same as in the Regional Trial a complaint, counterclaim, cross-
Courts, except (a) where a particular claim, third (fourth, etc.) party
provision expressly or impliedly applies complaint, or complaint-in-
only to either of said courts, or (b) in civil intervention.
cases governed by the Rule on Summary
Procedure.
Kana siayng counter claim and cross claim
actually they are separate pleadings, but under
The procedure in the first level courts and in the the rules of court kana siyang counterclaim and
RTC are the same. But by way of exception, there
cross claim pwedenanimo ma incorporate sa
are cases whose procedure are different. answer. So perhaps you have come across a
pleading entitled “Answer with Counterclaim”.
1. Rule on Summary Procedure Perokanang counterclaim really is a separate
2. Rule on Small Claims pleading, but if you are going to incorporate the
counter-claim in you answer that will be alright.
Ok rana.perokanang third party complaint
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
dilinapwedeisagulnimosaanswer, An answer is a pleading in which a Kaning affirmative defense, walanimogi deny,
angpwederanimo ma incorporate saimong defending party sets forth his defenses.
answer kana rang counterclaim and cross-
claim. Is an answer a pleading? YES.
The defenses of a party are alleged
What are defenses? Defenses ma
in the answer to the pleading niangimohangmgakatarungan. These are your
asserting a claim against him. reasons why you should not be held liable. These
An answer may be responded to by a are the reason that you should raise why you
reply. should not be held liable.
Kana siyang answer is a kind of pleading. Let us Sec.5.Defenses.
see kungunsaang meaning sa pleading …
Pleadings are the written statements of the Defenses may either be negative or
respective claims and defenses of the affirmative.
parties submitted to the court for
appropriate judgment. So as regards the
plaintiff angiyang pleading kana angcomplaint, as (a) A negative defense is the specific
regards to the defendant angiyang pleading denial of the material fact or facts
kananganswer. The defendant can incorporate in alleged in the pleading of the
claimant essential to his cause or
his answer a cross-claim and counterclaim. The
plaintiff can file another pleading upon receipt of causes of action.
answer, he may submit a reply.
Replymaonasiyaangtubagniadtongmga defenses Simple rajudkaayunaang negative defense,
sa defendant. igorajudkang mu deny.Unyaangimong deny
butangannimoug“first name” –“Specific”.
Sec. 3. Complaint. Ignunnimo “the defendant specifically denies the
allegation in paragraph 1.” Kay
kungraganinangignun deny walanimobutangiug
The complaint is the pleading alleging the specific… Nah! That would be general
plaintiff's cause or causes of action. The denial,unyaang general denial is considered an
names and residences of the plaintiff and admission. So that it would not be considered as
defendant must be stated in the complaint. an admission, the admission should be specific.
In the complaint you learn this in your legal forms (b) An affirmative defense is an
that you should include the names and allegation of a new matter which,
residences of the plaintiff as well as the while hypothetically admitting the
defendant. You might ask why is it important to material allegations in the pleading
put an address of the plaintiff and the defendant? of the claimant, would nevertheless
This is important in order for the process server prevent or bar recovery by him. The
to remember the address when serving summons affirmative defenses include fraud,
to the defendant and for the plaintiff the address statute of limitations, release,
for the notices in the succeeding hearings. payment, illegality, statute of
frauds, estoppel, former recovery,
Sec. 4. Answer. discharge in bankruptcy, and any
other matter by way of confession
and avoidance.
dunalngkaygitawagnga hypothetical admission.
Unsa man ning “hypothetical admission”?saatong
pang pagkaistoryaha, maoniang “IBUTANG NATO
NGA TINUOD” or “ASSUMING NGA TINUOD” I
COULD NOT BE HELD LIABLE”.
Example: 1. Prescription-
ibutangnatongatinuodnaangimonggi pang-ingon,
dili man ko ma liable kay prescribe namanna..
An affirmative defense is an allegation of new
matter. New matter kaywala man nigi allege
didtosa complaint. Ang-ang man mukihakanya
mu-ingonkagbitawutangannasiyapero prescribe
naman… ibutangkahananimosa complaint? So
saato pa katongkontraang mu butangana. While
hypothetical admitting the allegation.
Unsa man nang confession?-“butang ta
tinuodnapero dli ko liable”
Another kinds of affirmative defenses:
3. Laches –sleeping on your rights.
Although your case has not prescribed
but your case could still be dismissed on
the ground of estoppel by laches.
4. Ultra vires- beyond the authority
granted
5. Uncosntitutionality-
So duna nay duhakaclaseangdepensa:
1. Negative
2. Affirmative
Negative defense meaning specific
denial.Pwedekangadili mu raise ug prescription
peroimolng e deny. “Ah
dilinatinuodngankautangko.” Kay duna may
taongabisankaynkautang mu-ingonngadilitinuod.
“di man tinuodngankautangko..
kaytinuodnakadawatkoniyaug 100,000 peroingun
man to siyanga donation to.”
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Sec.6.Counterclaim.
A counterclaim is any claim which a
defending party may have against
an opposing party.
Counterclaim is a pleading. Who has the right to
raise a counterclaim? Masterunjudnininyo hap.
Kung claim, answer, counterclaim. Now a
counterclaim is a claim by a defendant against
the plaintiff or opposing party. So si C mi
fileugkasobatukni D perosi D misumbalikpud,
ingonsi D naapudbayakoycolectahununnimo. So
unsa man tawagana? Counterclaim!
There are 2 kinds of counterclaim.
Sec.7.Compulsory counterclaim.
A compulsory counterclaim is one
which, being cognizable by the
regular courts of justice, arises out
of or is connected with the
transaction or occurrence
constituting the subject matter of
the opposing party's claim and does
not require for its adjudication the
presence of third parties of whom
the court cannot acquire jurisdiction.
Such a counterclaim must be within
the jurisdiction of the court both as
to the amount and the nature
thereof, except that in an original
action before the Regional Trial
Court, the counterclaim may be
considered compulsory regardless of
the amount.
Counterclaim could be compulsory or Permissive.
What is a compulsory counterclaim? A of the case.
compulsory counterclaim is one which is logically
connected to the claim of the plaintiff .meaning
to say a compulsory counterclaim arose out of
the SAME TRANSACTION WITH THE SUBJECT OF
THE COMPLAINT. So if the counterclaim does not
have any connection with the complaint, then
that is not a compulsory counterclaim.
Angimong tan-awonanaang logical
connection sa subject of the complaint.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Walaganisiyay connection then that is not a
compulsory counterclaim
Example:Nabangganka. You know usahaykanang
mag binanggaaytagsarajud nag mu-angkonug
liability oi. Bisagimuhangsalakay mi beat kasa
traffic light, so gikihaka, inigkihaana, unsa man
imongkatarunganbeh?
Ankunonnimokayikaynakasala. Aw dili.
Ignunnimoakoysaktosiyamoysayop. So for
example si C while driving his car he is bumped
by D and so Mr. C filed a case for damages
kaywala man ma settle against Mr. D. Why?
Because his car was damaged due to the reckless
driving of Mr. D and he claimed the amount of
500,000. Now when Mr. D filed his answer he
alleged counterclaim, he denied being negligent
and instead pointed to mr. D. as the one being
negligent and asked that the case should be
dismiss and asked that it should be Mr. C who
would be ordered to pay him 1M for the damage
caused to his Mercedez Benz Car. This is a
compulsory counterclaim. Because it is
connected to the transaction or occurrence
constituting the subject matter of the opposing
party’s claim.
So aronang claim matawagug COMPULSORY must
also be cognizable by the regular courts of
justice.
Example. Mr. D dunasiya counterclaim,
peroangiyang counterclaim is Illegal dismissal.
Can this be considered as a compulsory
counterclaim? NO because illegal dismissal is not
cognizable by the court of justice. Another reason
why it is not considered compulsory, because it
has no connection with the occurrence(katong
bumping incident) constituting the subject matter
Is it considered as a compulsory counterclaim?
No because illegal dismissal is not cognizible by
the court of justice.
Another reason why is it not considered as
compulsory because it has no connection with
the occurrence katong “bumping incident”
constituting the subject matter of the case.
EX:
For example si C, nabanggaan no? For example
the damage asked is 200,000 lang, igo ra man
mabuak ang katong suga sa atubangan ug
headlight. So he asked for 200,000, asa man niya
gi file?
MTC. Sa counterclaim ni Mr. D, he denied being
the negligent party. He admitted the bumping
incident. He alleged that he is not the one
negligent but it was Mr. C and he asked Mr. C to
pay him the amount of 500,000 for the damage
caused to Mr. D’s car.
Q: Was the raising of the counterclaim by Mr D
proper?
A: The answer is NO because one of the
characteristics of one compulsory counterclaim is
that the court must have jurisdiction over the
amount as well as to the nature.
EX:
Suppose it is the other way around for example it
was Mr. C who filed a claim for damages for the
amount of 500,000 against Mr. D in the RTC and
then in his counterclaim Mr. D alleged for the
damages of 200,000. Is it proper?
A: YES because if it is in the RTC, the RTC will
have jurisdiction regardless of the amount.
Take note that if it is considered as a compulsory
counterclaim the defendant has to allege that’s
why it is called compulsory. If it is not allege the
same would be considered waived. The
compulsory counterclaim must arise at the time
he files his Answer.
Take note ha that the court must have jurisdiction
over the amount and the nature.
EX:
Suppose si D raises counterclaim, 200,000 sa RTC
ni ha kay didto man gi-file ang kaso. Pero dili man
mahitungod sa damage sa iyang awto.
Mahitungod man ug illegal dismissal. Is it proper?
A: NO because although the court has jurisdiction
over the amount but it has no jurisdiction over
the nature of the counterclaim. So in that case it
cannot be considered as a compulsory
counterclaim but a permissive counterclaim.
Let’s go back to our previous example:
Si C, 200,000 ang iyang damage nga gi-claim but
in his counterclaim D raises 500,000 didto sa
MTC, proper ba ang pag raise sa iyang
compulsory counterclaim?
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

A: NO because the counterclaim must be within
the jurisdiction of the court. So what kind of
counterclaim is it because it does not qualify to
be a compulsory counterclaim? That would be
considered as permissive counterclaim.
What is permissive counterclaim?
Since it is not a compulsory counterclaim or since
bringing the same will not qualify as a
compulsory counterclaim then the defendant
should file a separate action for his claim.
Can you give us an example of permissive
counterclaim?
So, all other counterclaim katong atong gi
hisgutan nga dili matawag ug compulsory claim
then permissive.
So for example:
C filed a case against D due to the damage of his
car, bumping incident. Si D, in his Answer alleged
that si Mr. C also borrowed from him. Si C katong
sa bumping incident si D sa iyang Answer mi
allege aduna pud siyay claim against Mr. C kay
nanghuwam di ay ni siya kani-adto ug iyang
gituyo pagbangga. Mao iyang gibanggaan kay
nakahuwan d ai si C niya unya wa mibayad. He
said, patas nami. Duna siyay claim nako nga
damage nga 200,000 unya aduna pud koy
kolektahon niya nga 200,000 kay wa man siya
mibayad sa utang. What kind of counterclaim is
it?
A: It is PERMISSIVE COUNTERCLAIM.
controverted. creditor may run after against one of the solidary
obligors.) Now, Mr C has options. He can file a
Q: What will happen if it is an initiatory pleading? case against A and B OR he can file a case
The same must contain a Certification Against against A alone or B alone. Uso kayo ni sa mga
Forum Shopping. money lenders. Di jud na mosugot kung
Q: What do you call sa Answer ngadto sa mangutnag ka didto nga wala kay kauban, co
Permissive counterclaim or sa counterclaim? maker. What is the purpose of a co maker? Aron
Plaintiff filed a complaint unya ang defendant maka siguro ang money lender nga incase dili ka
mo- file ug Answer with counterclaim, unsa may kabayad aduna siyay gukuron.
tawag sa itubag sa plaintiff ngadto sa So, A and B nangutang, si A raguy migamit sa
counterclaim sa defendant? DILI NA REPLY. TAKA kwarta di man gud mosugot nga way co maker
RA MOG REPLY. mao iyang gi ingnan iyang kauban nga maestra
A: That is called ANSWER TO COUNTERCLAIM. nga “palihog pirmahe ko beh.” So, gipa utang sa
Answer gihapon dili reply. bangko. Pero ang nakagamit sa kwarta si A ra.
Kadtong reply, kanang gitawag ninyo ug REPLY Wala man makabayad si A, pagkiha na apil si B.
maoy tubag sa AFFIRMATIVE DEFENSE. Karun maldito man sad ang Bangko. Wala man gi
Affirmative defense is different from apil si A si B ra man hinuon. Perteng kisi-kisi ni B,
counterclaim. Kanang affirmative ug ngative naunsa naman hinuon ni, wala man gale ko
defense sa Answer na gawas nga imung tubagon katilaw bisag usa ka dako wala man gale ko ka
pwede pud ka mopakapin ug claim. kaon ato bisag Jollibee na lng, ako ra gyuy gi
Take note of compulsory and permissive kung di kiha?
ka katubag ana ayaw nalang ug dahum Q: Is the bank correct?
makapasar ka. A: YES, solidary obligation man.
Q: What is the remedy of Mr. B?
SEC 8: CROSS CLAIM A: Mr B can file a cross claim. So he can
incorporate in his Answer that in the event the
court will order him liable. The court should also
A cross-claim is any claim by one party
issue an order directing Mr A to reimburse him of
against a co-party arising out of the whatever amount that he would pay the plaintiff.
transaction or occurrence that is the Q: What is the difference between counterclaim
subject matter either of the original action and cross claim?

Q: What are the distinctions between compulsory or of a counterclaim therein. Such cross- CROSS CLAIM COUNTERCLAIM
counterclaim and permissive counterclaim? claim may include a claim that the party A claim against a co A claim against the
against whom it is asserted is or may be party adverse party or against
COMPULSORY PERMISSIVE the plaintiff
liable to the cross-claimant for all or part of
COUNTERCLAIM COUNTERCLAIM It depends upon the If the main action is
Shall be contained/ May be set up ana claim asserted in the action against the main action dismissed, counterclaim
incorporated in an Answer independent action if notcross-claimant. may survive.
otherwise is barred raised in an Answer. If not Necessarily arises May or may not come
raised in Answer will notWhat do you mean by cross claim? out of the same from the same
be barred. Is a claim by one party against a co party arising transaction transaction by plaintiff
Not considered an Considered as anout of transaction or occurrence that is the against co plaintiff
Initiatory Pleading Initiatory Pleading subject of either the original action or of a
Does not require payment Requires payment ofcounterclaim therein. SEC 9: COUNTER- COUNTERCLAIM AND
of docket fees docket fees EX: COUNTER CROSSCLAIM
It may not be Answered. If It has to be answered. A and B owed C 300,000. A and B are sued by C.
not answered deemed Si A ug B are solidary debtors. (Meaning the
Page | 37

Sec. 9. Counter-counterclaims and counter-
cross-claims.
A counterclaim may be asserted against an
original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.
Counterclaim may be asserted against original
counter- claimant. A cross claim may also be filed
against original cross claimant.
SEC 10: REPLY
A reply is a pleading, the office or function
of which is to deny, or allege facts in denial
or avoidance of new matters alleged by way
of defense in the answer and thereby join
or make issue as to such new matters. If a
party does not file such reply, all the new
matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any
claims arising out of the new matters so
alleged, such claims shall be set forth in an
amended or supplemental complaint.
What do you mean by reply?
Is a pleading, the office or function of which is to
deny or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer
thereby join or make issue as to such new
matters.
Atong gi- discuss ganiha nga ang defendant
pwede mo raise ug negative or affirmative
defense. Now the plaintiff upon receiving the
Answer may file a Reply. Reply is to refute the
denial or affirmative defenses that the defendant
raised in the Answer.
Q: What happen if the plaintiff or a party does not
file a Reply?
A: If the plaintiff or party does not file a Reply
then the new matters raised in the Answer shall
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
be considered controverted. All matters alleged
in the Answer are deemed controverted.
Meaning, deemed answered or deemed denied.
GR: Reply is really not necessary.
Kay bisan ug dili ka mo file ug Reply niadtong
mga defenses sa defendant deemed
controverted man, meaning deemed denied. Sato
pa there is no admission deemed denied.
EXC: (Reply is compulsory or necessary)
1. When the Answer of the defendant is based on
ACTIONABLE DOCUMENT.
Actionable documents if not denied are deemed
admitted.
2. When the Answer alleges the defense of
USURY. Dili kayo importante ang second kana jud
first.
Q: FOR EXAMPLE the defendant says that he has
already paid the amount and he alleged or
attached to his Answer a receipt. Is reply
necessary?
A: YES because if there is no reply the actionable
document given (the receipt) is deemed
admitted. Take note: Not just REPLY. It should be
VERIFIED because the answer or denial as to the
due execution of the actionable document must
be UNDER OATH.
The same way with counterclaim or cross claim:
For example the defendant raises counterclaim,
(unya unsa tong ibaws sa plaintiff if
counterclaim?-----ANSWER) since answer man na
pwede siya maka raise ug affirmative or negative
defenses. So, if there is counterclaim ang kihanti
silbi mao ang defendant, baws siya. Ang
defendant kay mao kadtong plaintiff as far as
that claim is concerned.
So, the plaintiff can raise affirmative or negative
defense in his answer to the counterclaim. If ang
iyang answer to the counterclaim is base on
actionable document. Pananglitan mi raise si D
ang defendant ug counterclaim unya mo ingun
siya “unya ikaw utangan man sad nako.” Unya mi
ingun ang plaintiff “uy do, bayad na na nako. Kita
ka ining resibo?” The defendant now is to file a
reply. Iyaha jud ng tubagon tungod ka yang
answer is based on actionable document.
Then another pleading is third party complaint.
SEC 11: THIRD (4TH, ETC) PARTY COMPLAINT
A third (fourth, etc.) party complaint is a
claim that a defending party may, with
leave of court, file against a person not a
party to the action, called the third (fourth,
etc.) party defendant, for contribution,
indemnity, subrogation or any other relief,
in respect of his opponent's claim.
What is 3rd party complaint?
This is a claim that a defending party may with
leave of court file against a person not a party to
the complaint;
For example:
Nakapalit ka ug yuta. Imagina nga dato ka ron.
Nakaplait kag yuta imu ng gibalayan. Uy
pagtukod pa lang nimu sa haligi, pagkalot pa
lang sa bangag sa haligi naa may nangangkon.
Kinsa man ka nangawt ug haligi diri? Ako may
tag- iya ani. So, gi- filan kag recovery of
ownership kay nangangkon man kag tag iya.
Unsa man uroy buhaton nimu?
Your claim nga pinalit man na nmung yutu-a
pananglitan gipalit na nimu kay S, seller. Ikaw ron
si B, buyer. What will you do nga gi-filan kag kaso
ni A kadtong miduol nmu nga nangisog. So, there
is a case now, A vs. B.
You want to include Mr. S in the action, the seller
nga imung gipalitan. What will you do?
So that in the event that the court will render a
judgement ordering you to vacate the lot
because you have no right over the lot the seller
does not have any right anymore over the lot
arun pud ka maka claim adto niya, what will you
do?
A: You may file a motion asking for leave of court,
to file a THIRD PARTY COMPLAINT. A 3rd party
complaint actually in reality is a separate
complaint. In order to avoid multiplicity of suits
the rules allow a party of asking leave of court to
file a pleading known as 3rd party complaint.
Separate jud na siya nga kaso, mura jud na siyag
complaint. Lahi jud na. Butangan jud na siyag
THIRD PARTY COMPLAINT unya na pud didto ang
address sa gusto nmu nga ipa-apil sa kaso.
Serbihan jud to siya ug Summons. Patubagon jud
Page | 38

pud siya. Mobayad pa jud kag docket fees. That
is really a separate complaint. The court may or
may not allow you to file a third party complaint.
Another example:
You sell your car. Kana biya rehistro sa imung
awto dili bya na matransfer dayon. Pananglitan
ibaligya karun. Kwaon na dayon na sa buyer,
dba? Drayb-drayban na na sa buyer uy kay
pirmero pa man niyang awto hambogero kayo
na. Mag road test dayon na siya adto sa
probinsya. Labi na bag ong pasar sa bar.
Hambogero naman dayon na. Di na na mosakay
ug PUJ maulaw na na. So, mamalit na nag awto.
Inig pirma nimu sa Deed of Sale kay nakadawat
naka sa bayad kuhaon na na imung awto imu pud
tong ipakapin ang OR ug CR. Unya lahi ng mag
drayb sa imung awto. Ang imung ebedensiya na
lng nga din a ikaw ang tag iya kay katong Deed
of Sale. Uy on the way to the province
nakadasmag man na. Gitan aw dayon ang
rehistro kinsa ang registered owner. Ikaw may
registered owner. And so katong biktima kinsa
may file-lan niyag kaso nga wa man siya kaila
kinsay driver kay hit and run man. IKAW. So,
there would be a case, C katong injured party
ikaw mao si D a case for damages. C vs. D. Na-
apil ka sa kaso nga wala nmu gibuhat.
Q: What will you be your remedy?
A: You file a THIRD PARTY COMPLAINT. You ask
leave of court to allow you to file a 3rd party
complaint. You allege that you have already sold
your car to a certain Mr. F and you are not
anymore the owner of the car.
Suppose the court will render decision directing
you to pay the victim kay ikaw may registered
owner so mao na nag purpose sa 3 rd party
complaint. That you will be reimbursed of
whatever you have paid. Ang problema kung
katong nakasala jud walay ika reimburse nimu.
PURPOSE OF 3rd (4th, etc) party defendant: for
contribution, indemnity, subrogation or any other
relief in respect of his opponent’s claim.
Take note that the 3rd party complaint has to
follow the venue and jurisdiction of the main
case. Sato pa bisan pa ang subject sa imung 3 rd
party complaint way jurisdiction ang court ato
pero ang basehan sa jurisdiction kadto ra jud
main case.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Read the case of:
 PCI Leasing Finance Inc. Vs. UCPB Gen.
Finance Co. Inc. (July 4, 2008)
 Saludaga vs. Far Eastern University (April
30, 2008)
SEC 12: BRINGING OF NEW PARTIES
When the presence of parties other than
those to the original action is required for
the granting of complete relief in the
determination of a counterclaim or cross-
claim, the court shall order them to be
brought in as defendants, if jurisdiction
over them can be obtained.
When the presence of parties other than those to
the original action is required for granting of
complete relief in the determination of
counterclaim or cross claim the court will order
them to be brought in as defendants, if
jurisdiction over them can be acquired.
Ordinarily as what we have learned if a person
who is not yet a party to a complaint and the
defendant wants that person to be brought into
the action, he should file a 3 rd party complaint.
But under Sec 12, the court may order that the
persons or parties not impleaded in the original
action be brought into the action as defendants
in order to have a complete relief in the
determination in the counterclaim or cross claim.
SEC 13: It has a connection with the 3rd
party complaint.
Sec. 13. Answer to third (fourth, etc.) party
complaint.
A third (fourth, etc.) party defendant may
allege in his answer his defenses,
counterclaims or cross-claims, including
such defenses that the third (fourth, etc.)
party plaintiff may have against the original
plaintiff's claim. In proper cases, he may
also assert a counterclaim against the
original plaintiff in respect of the latter's
claim against the third-party plaintiff.
So, the 3rd party defendant, the 3rd party plaintiff
and then then katong motubag, 3rd party
defendant. The 3rd party defendant may allege in
his Answer, his defenses, counterclaims or cross
claims including such defenses that the 3 rd party
plaintiff may have alleged in against the original
plaintiff’s claim.
EX:
A filed a case against B, defendant. B filed a 3 rd
party complaint against C. So, C is the 3 rd party
defendant. C even not a party to the original
complaint can raise in his Answer defenses,
counterclaims or cross claims against the original
plaintiff. It is only A vs B who are original parties.
Let’s go now to the parts of pleadings.
RULE 7
PARTS OF PLEADINGS
What are the parts of a pleading?
SEC 1: CAPTION
The caption sets forth the name of the
court, the title of the action, and the docket
number if assigned.
The title of the action indicates the names
of the parties. They shall all be named in
the original complaint or petition; but in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication
when there are other parties.
Their respective participation in the case
shall be indicated.
What are in the caption?
 Name of the Court
 Parties
 Title of the action (ex. recovery of
ownership or damages)
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 Docket no.
The title of the action indicates the names of the
parties. What are the names of the parties? C VS.
D. They shall all be named in the original
complaint or petition. Example, ikaw Tiyo unya i-
apil imung mga pag umangkon kay imung mga
igsuon patay na. So, all your nieces and nephews
be mentioned. All the defendants shall also be
named. That is in the original pleading. But in the
succeeding pleading or motions pwede na lang et
al.
Example, Juan dela Cruz unya daghan kayo siyag
nephews ug nieces. Lima sila ka magsuon ug
matag igsuon nay napulo ka anak. So, if they are
all 40’s they should be all mentioned in the
pleading. Juana dela cruz, Ruffa dela Cruz, tanan.
Name them all. However, in the succeeding
pleadings pwede na lng et al.so, Juan dela Cruz,
et al. What is et al? It means and others. Dili na
et als.
SEC 2: BODY
The body of the pleading sets forth its
designation, the allegations of the party's
claims or defenses, the relief prayed for,
and the date of the pleading.
(a) Paragraphs. - The allegations in the
body of a pleading shall be divided into
paragraphs so numbered as to be readily
identified, each of which shall contain a
statement of a single set of circumstances
so far as that can be done with
convenience. A paragraph may be referred
to by its number in all succeeding
pleadings.
(b) Headings. - When two or more causes of
action are joined, the statement of the first
shall be prefaced by the words "first cause
of action," of the second by "second cause
of action," and so on for the others.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
When one or more paragraphs in
answer are addressed to one of several
causes of action in the complaint, they shall
be prefaced by the words "answer to the
first cause of action" or "answer to the
second cause of action" and so on; and
when one or more paragraphs of
answer are addressed to several causes of
action, they shall be prefaced by words to
that effect.
(c) Relief. - The pleading shall specify the
relief sought, but it may add a general
prayer for such further or other relief as
may be deemed just or equitable.
(d) Date. - Every pleading shall be dated.
This is the most important part of the pleading.
It sets forth its designation, the allegations of the
party’s claims or defenses the relief prayed for
and the date of the pleading.
Ang diri sa body sugod sa title. Unsa man na xa
klase nga pleading----->>>complaint. Mao na na
siya sugod sa body. And then ang allegations, the
paragraphs. Mao na ni ang pinaka importante.
The allegations in the body of a pleading shall be
divided into paragraphs. Your pleading shall be
divided into paragraphs ug kanang paragraph sa
pleading lahi na sa paragraph nato katong sa
writing. Kay sa usa ka pleading ok ra usa ka
sentence unya another paragraph na sad.
Ex:
Complaint.
C by counsel alleges that:
1. He is of legal age, married and a resident of
xxx where summons and other processes of this
court may served. Defendant is likewise of legal
age, married and a resident of xxx where
summons and other processes of this court may
served;
(Numberan jud na nimu numberan.) your
paragraph must be numbered. 1..2..3..4
2. That sometime on xxx defendant obtain a loan
in the amount of xxx with 12% interest per
the annum as evidence of the promissory note
xxx(this is now your causes of action)
Why is it necessary to be numbered?
(a) Paragraphs.
So that it would be easier for the defendant to
deny each paragraph because each paragraph
contains an allegation. Those allegations must be
answered.
the The fact that you allege that you are of legal age
is very important. Without the term legal age
your capacity to sue is questionable. Your
address is important because it would determine
the venue. Without it your complaint could be
dismissed.
While in the Anwser pwede na i-deny pwde na i-
admit sa defendant. For example moingun siya
sa Answer he denies the allegation in par 1
because the truth on the matter is plaintiff does
not have legal capacity to sue because he is a
minor. Pwede niya e-deny na. Or pwede niya e-
deny nga you are not a resident of Cebu City has
never been a resident of Cebu City. Mao
importante imung numberan imung paragraphs.
(b) Headings.
As what we have learned earlier that causes of
action if you have 2 or more causes of action the
two can be joint. If there are two causes of action
imu ng numberan, first cause of action, second
cause of action. If that is you have different
causes of action. Ayaw butangi ug 1st cause of
action unya usa ra d ai imung cause of action.
Judge D: Kakita ko ug complaint collection for
sum of money. Usa ra gud ka loan gud. Gibutang
niya, 1st cause of action failed to pay, 2nd cause of
action plaintiffs suffers sleepless nights. Another
cause of action di ay na? Di man nimu matawag
nga separate cause of action na. Kay usa ra man
ang cause of action kana ra mang wala ka
mibayad.
(c) Relief
Mao ng allegations nimu sa body is very
important. The nature of your action is
determined by the allegations in the body not in
the caption.
For example your caption is for ejectment for
unlawful detainer. Pero imung gi- allege sa body
wala ka mi demand to vacateimportante man
kayo na sa ejectment. Although the title is for
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

ejectment your cause of action is not actually for therein, or fails to promptly report to the nadunggan, mao man na akong information. So
ejectment. Your cause of action may only be for dili na pwede. Information and belief. It must be
sum of money. I-review jud na nimu. Tan awon court a change of his address, shall be based on personal knowledge and authentic
nimu kung naa ba ang tanang elements. If your subject to appropriate disciplinary action. documents.
action is for sum of money your action could be Q: Is the pleading required to be verified?
dismissed if you do not allege prior demand to If the party is represented by the counsel then A: Generally, NO but if there is a provision of the
pay. If you do not have demand to pay your the counsel will sign the pleading. Take note that Rules of Court or law that such particular
action is premature and that could be dismissed. if the pleading is unsigned the same will not pleading must be verified then the same should
Then the relief is in the prayer. You know lawyers produce any effect. If there is any scandalous or be verified.
are so prayerful. Kana gud nay WHEREFORE. indecent word in the pleading the same could be Examples of pleadings that need verification:
Unya naa pud kay pakapin in case naa kay deleted and the counsel could be subjected to  Special civil actions such as Petition for
malimtan. Other reliefs and remedies are likewise disciplinary action. You should be careful with Certiorari, Mandamus
prayed for which are just and consistent in laws your words. You should learn to use appropriate  Under summary procedure
and equities. words. Usahay ang lalaisan ka yang term sa
(d) Dated pleading nimu kung sakto ba imung paggamit.
Kung wala gane mi ingon nga e-verify then dili e-
Every pleading must be dated. That is the date You should be courteous in your words.
verify. Pero ang mga counsels maniguro bisan
when you prepare your complaint. Pero ang wala gi-require nga ipa verify, e-verify lang gyud.
tinud-anay jud nga pagfile ana katong tatak kung SEC 4: VERIFICATION
Para safety siya. Nganu ma benefited man ang
kanus-a gidawat. counsel ana kung iya ipa- verify? Kay naa man
Except when otherwise specifically required didto nga i have read and understood the
SEC 3: SIGNATURE AND ADDRESS OF THE allegations if dunay allegations didto nga it
by law or rule, pleadings need not be under
PARTY turned out nga bakak dili siya maka ingon nga
oath, verified or accompanied by affidavit.
wala siya ka basa. Dili siya maka ingon nga
Every pleading must be signed by the party A pleading is verified by an affidavit that abogado ra man nako ng gabuhat2x. Sato pa
or counsel representing him, stating in the affiant has read the pleading and that mas maayo nga bisan wala gi require imu
the allegations therein are true and correct gihapong iparevify for your safety. Basin adunay
either case his address which should not be
mga allegations diha nga bakak na. Even if a
a post office box. of his knowledge and belief.
particular pleading is required to be verified
The signature of counsel constitutes a A pleading required to be verified which dunay daghang decision sa SC nga ang
certificate by him that he has read the contains a verification based on verification is only a formal requisite. What does
it mean to say formal requisite. Meaning, it will
pleading; that to the best of his knowledge, "information and belief," or upon
not affect the jurisdiction of the court. Bisan pa
information, and belief there is good "knowledge, information and belief," or ang usa ka pleading gi require nga iverify. Pwede
ground to support it; and that it is not lacks a proper verification, shall be treated ra ang court mo order nga ipa amend because
as an unsigned pleading. verification is a mere formal requisite. It does not
interposed for delay.
affect the jurisdiction of the court.
An unsigned pleading produces no legal  Answer denying an actionable document
As a rule verification is not required. But if the
effect. However, the court may, in its Rules of Court or provisions of law require that
discretion, allow such deficiency to be such particular pleading should be verified then it Pananglitan ang complaint adunay gi attach nga
should be verified. actionable document. Sa imung answer imu ng
remedied if it shall appear that the same
Verification murag affidavit ra jud na. Subscribed gi- deny, your answer must be under oath.
was due to mere inadvertence and not and sworn to unya ibutang nimu didto that the Another important part of initiatory pleading is
intended for delay. Counsel who client/plaintiff has read and understand the the Certification Against Forum Shopping. It is
contents of the complaint. That all the just like an affidavit. Wherein the plaintiff or
deliberately files an unsigned pleading, or
allegations, all jud na are true and correct of his petitioner alleges that there is no other case
signs a pleading in violation of this Rule, or own personal knowledge. Take note of the word pending in any court or other tribunal, involving
alleges scandalous or indecent matter personal knowledge. Dili jun ng information kay the same issues over the same parties. If ever
ka ng information chismis jud na. Sa akong there is they should indicate the stage of the
Page | 41

proceeding or if they should learn after that there
is an action they should undertake to inform the
court within 5 days from knowledge of the said
action.
So now, who will sign the Cert Against Forum
Shopping? It should be the plaintiff himself. It is
required only in an initiatory pleading.
So, the question does an Answer require a Cert
Against Forum Shopping? Generally, NO because
an Answer is not an initiatory pleading but if your
answer adunay gitawag nga PERMISSIVE
COUNTERLCAIM wherein a permissive
counterclaim is another pleading but is allowed
to be included in an answer. Thus, Answer with
permissive counterclaim must have a Cert
Against Forum Shopping.
Effect if pleading does not contain Cert Against
Forum Shopping: unlike Verification wherein the
court may allow amendment under the Rules
your action shall be dismissed (referring to failure
to secure Cert. Against Forum Shopping) without
prejudiced.
But take note that if you deliberately withhold the
information regarding the pendency of other
cases you can be disciplined. Cited for indirect
contempt and the action could be dismissed with
prejudice. If there was a wilful and deliberate
forum shopping. The Certification must be signed
by the plaintiff himself. But if there are 2 or more
plaintiffs sharing common cause of action the
signature of one of them would be sufficient. But
if they do not share a common cause of action
then each one of them should sign the Cert
Against Forum Shopping.
November 12, 2012 (Monday)
Sec. 5. Certification against forum
shopping.
The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore
commenced any action or filed any claim
involving the same issues in any court, tribunal
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein; (b) if there is such other pending
action or claim, a complete statement of the
present status thereof; and (c) if he should
thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without
prejudice, unless otherwise provided, upon
motion and after hearing. The submission of a
false certification or non-compliance with any of
the undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal
actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute
direct contempt, as well as a cause for
administrative sanctions.
← There should be a certificate against
forum shopping [cafs]. This is required
only in an initiatory pleading. You
should be familiar with the contents of
certificate against forum shopping[cafs].
It is very simple it is just like an affidavit
where you state that there is no other
complaint or there is no other petition or
no other case filed in any court/tribunal
involving the same issues and parties.
And that if there is any, later on you
learn, there is such a case or action
filed/pending, you undertake to inform
the court about it & its present status
w/in 5 days from learning.
← Now certificate against forum shopping
[cafs] is very impt in the sense that if you
failed to state or if your pleading does
not contain any cafs, the same shall be
dismissed. The pleading cannot be
amended,it has to be dismissed although
the dismissal is without prejudice. But if
the failure to state the pendency of
another case is willful; sa ato pa nakafile
naka pero imo jd gituyo ug tago, you
deliberately did not state in your cafs
that there is such a pending case, aside
from possible disciplinary action, the case
that you filed could also be summarily
dismissed. But if it is not deliberate, the
same could only be dismissed upon
MOTION because the same can be
WAIVED.
← Bisan tu.od imong pleading walay
certificate against forum shopping [cafs],
pero imong kontra dili mu question, this
his non objection is considered WAIVED.
So mao na na nagkelangan ug
MOTION.The court CANNOT moto
proprio dismiss the case, pero kung
tinuyo gani, deliberate and willful,
you can be summarily dismissed and
dismissal shall be WITH prejudice.
← Unsa may kalainan sa dismissal w/
prejudice from dismissal w/out prejudice?
When an action is dismissed without
prejudice, the same can be refilled, but if
the dismissal is with prejudice the
dismissal can no longer be refilled bec
the dismissal is equivalent to dismissal
on the merits.
← By the way, what do you mean by forum
shopping [fs]? Forum shopping the SC
has explained “there is forum shopping
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when a result of an adverse decision, in
one court or forum,or in anticipation
thereof, the parties seek a favorable
opinion in another forum thru means
other than appeal or certiorari by raising
identical cause/s of action, same subject
matter and issues.
← So nifile kag kaso,gidismiss labi na kung
dismissal on the merits, unya adverse
nimo ang decision, nifile na sad kag lain
ornaka file naka, tan.aw nimo,pildi man jd
ko aning salidaha, so now ni file ka napud
sa lain na korte, that would be considered
f.s.
← So in other words, if you are guilty of fs,
there is necessarily litis pendencia or res
judicata.
correctness in the allegation in the petition.This is
the ruling of SC in the case of Cagayan Valley
Corp vs.Comm. on Internal Revenue 2-13-2008.
← SO those are the parts of the pleading,
now certificate against forum shopping
[cafs] must be signed by the litigant
himself and not by the counsel, but if the
plaintiffs or there are 2/more plaintiffs
who share common cause/s of action one
of them may sign or the signature of one
of them in the cafs could be sufficient
provided they share common cause/s of
action/defense. [Pacquing vs. Coca-Cola
Phils. Inc. 1-31-2008
← Now, as regards juridical persons, who
will sign the cafs? Now according to SC as
regards juridical persons Secs. 4 & 5 of
Rule 7 are silent as to who the authorize
signatory should be. But under Sec. 23 in
relation to Sec. 25 of the Corporation
Code, all corporate powers shall be
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
exercised by the BOD and individual
Corp. officers must have the authority
from the board. Ang makapirma lang sa
cafs mao kadtong duly authorize by the
board, however the following may sign
the verification even without need of
board resolution. Kinsa mani sila?
← Chairperson of the board
← President of the Corp
← Gen.Manager or Acting
Gen.Manager [dili BRANCH
MANAGER ha]
← Personnel Officer
← An employment esp.in labor
cases [??? Wa ko ka-g pd ]
As they are in the position to verify the
← In another case decided by SC, BA
Savings Bank vs Sia et.al 7-27-2000 and
BPI Leasing Corp. vs CA et.al. 11-18-2003
SC said “Especially authorize lawyer who
has personal knowledge of the facts
alleged may sign the certification.
Especially authorize lawyers include the
counsel of record who has personal
knowledge of the facts alleged, may sign
the certificate of verification.
← So those are the parts of a pleading; so
take note ha, important kayo ang
cafs,dilipwede ang abugado ang mupirma
except if the lawyer is especially
authorize. Lahi sa verification, pwede na
ang lawyer pero sa cafs strikto
kayo.Now,uban nga mga lawyers ang
kanang verification,mag.una
“ That I am the plaintiff in the above
entitled case, that I have read and
understood the allegations therein
and confirm that they are true and
correct to my own personal
knowledge. Subscribed and sworn
to.
← Have you seen a verification?Kinahanglan
memorize ni ninyo ha [apil sa exam??
].Uban ana ubos na pirma naa na say
lain…
That I have not commence/filed any
action in another court/tribunal etc.
← Aron dili magbalik.balik, ug subscribe and
sworn to, ana kausa ra pirmahan,usahon
ra ang technique samag abugado
“verification & certificate against forum
shopping. Mao ni ang technique sa mga
practitioners.
← The allegations in the body of the
pleading are very important. Because the
nature of the action as to what case are
you filing does not depend on the
caption/ title of the pleading that you
filed but the allegations in the complaint.
← And you should be careful in the
preparation of your pleading; see to it
that your pleading could not be subjected
to motion to dismiss [md]. For ex. Your
case is a real action, it is impt. That you
should allege the assessed value. So for
ex. If you are filing a case for recovery of
Page | 43

possession/ownership>>> that is real
action. You should not forget to allege the
assess value of the real property bec if
you do not allege, the same can be
dismissed on the ground of lack of
jurisdiction kay unsa may basehan ana sa
korte na dunay jurisdiction.
← Now, as regards personal property,
impt gihapon ang value. Naa bay assess
value ang personal property? Unsa na na
kaso kung murecover ka ug personal
prop? You call it replevin,no assessed
value of it, the value of it will determine
the jurisdiction of the court. P 300K &
below, 1st level courts, P300K above, RTC.
← Another as for jurisdiction, if your causes
of action are alternative, pwede man
kung naa kay alternative causes of
action,pananglitan specific performance,
pabuhaton nimoug “Deed of Sale” ug dili
gani mubuhat,ingnon na iuli nlang ang
imong gibayad na kwarta sa auto, so the
causes of actions are alternative. One is
incapable of pecuniary estimation while
the alternative is capable.So unsaon
nimo pag determine sa jurisdiction sa
court, the answer is consider CAPABLE OF
PECUNIARY ESTIMATION. That’s the ruling
of SC in the case of Cruz vs. Tan 87 Phil
627.Incapable gikaluhaan ug capable.
“ When the demand is in the
alternative as in the action to
compel the defendant to deliver the
house by completing its construction
or to pay the sum of money; the
action is considered capable of
pecuniary estimation”. [BAR
QUESTION]>>> ALTERNATIVE HA, OR
GANI….AND GANI THEN CONSIDER
INCAPABLE
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
← Another Bar Question, the plaintiff filed a
collection case against Y for 300K before
MTC for his car loan. X filed a collection
case against Y for the latter’s car loan; X
also prayed for a writ of replevin in order
to repossess the car valued at 500K, so
the question was. Did the MTC has
jurisdiction?>> Accdg to SC:YES, in a
sum of money case, jurisdiction is
determined by the amount claimed
and not by the value of the vehicle
under the writ of replevin.
[Fernandez vs.Intl.Corp Bank]
← RULE 8:
←
← Section 1. In general.
Every pleading shall contain in a
methodical and logical form, a plain,
concise and direct statement of the
ultimate facts on which the party
pleading relies for his claim or defense,
as the case may be, omitting the
statement of mere evidentiary facts.
← If a defense relied on is based on law,
the pertinent provisions thereof and
their applicability to him shall be clearly
and concisely stated.
← Now, dunay duha ka klase sa facts
diri.ULTIMATE FACTS [FACTUM
PROBANDUM UG EVIDENTIARY
← Mao nay gitawag ug ultimate facts, pero
FACTS[FACTUM PROBANS]. The rules
require that only ultimate facts should be
stated in the pleading, not the
evidentiary facts. For ex. For a
collection of sum of money….
Plaintiff by counsel alleges that he is
of legal age, married, resident of…
defendant is likewise…
That sometime on Jan. 15, 2010, the
defendant obtained a loan in the
amount of 300K from the plaintiff
with the rate of interest 1%/annum
as evidence by a Promissory Note
[PN], a copy of which is hereto
attached as annex A, payable within
1 year thereof.
That when due date came, the
defendant failed to pay his loan
obligation despite demands. A copy
of the demand letter is hereto
attached as annex B.
That bec of the stubborn refusal of
the defendant…the plaintiff is
constrained to seek the services of
the undersigned counsel to which is
committed to pay xxx
That the plaintiff suffered xxx
Wherefore it is respectfully prayed
that this Honorable Court , that
judgment be rendered ordering the
defendant to pay 300K at 1%/annum
interest & another 1% interest as
penalty until the entire obligation is
paid.
inig hearing na,dili na nimo,katong imong
I present, dili kato ray imong i.istorya. So
unsaon man nimo pag present during
direct examination. Ingnon dayun nimo
pagconduct ug direct examination…
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Q: Do you know the defendant in
this case?
A: Yes I know him
Q: Why do you know him?
A: Because he was my former
classmate in the college of law in
san jose
Q: Where were you sometime in Jan.
11, 2010?
A: I attended the birthday party of
the plaintiff
Q: Where was it held? Did you have
any conversation with the defendant
at that time? While in the course of
the conversation, what happened?
A: The defendant ask me if I could
extend him a loan
Q: How much did he ask?
A: 300K
Q: Was your agreement reduce into
writing?
A:Yes
Q: What is your proof?
A: I have a PN
← Mao to siya ang gitawag ug evidentiary
facts. Taas kayo, kung katoy imong isulti
didto sa imong complaint, taas kayo. The
rules require that only the ultimate facts
shall be statedin the pleading, meaning
only those facts which constitute your
cause/s of action.Katong detalye,adto
nato during the presentation of your
evidence.
← And aside from that the rules require that
you present the ultimate facts in a
methodical and logical manner.
Magsunod ba,chronological.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
← And as what we have learned, the
allegations in the pleading should be
divided into different paragraph .Unya
each paragraph must be numbered.
However in the answer, if the answer of
the defendant for example is based on
law, then he should cite the pertinent
provisions of the law.
← Ex. The City of Cebu wanted to collect
taxes from religious schools. Then
religious schools, they filed an injunction
case against the city in order to prevent
the city from collecting taxes. Now the
City necessarily has to file its answer, in
the answer, the city has to cite the
pertinent provisions of law nga maoy
gibasehan niya sa iyang kolekta ug buhis
kay part mana sa iyang depensa.
← If a defense relied on is based on
law, the pertinent provisions
thereof and their applicability to
him shall be clearly and concisely
stated
← SO dili lng ultimate facts sa iyang
depensa, kung dili ang iyang depensa
naglakip ug balaud, then the pertinent
provisions must also be cited.
← So for ex. Ikawy plaintiff, nagduha2x ka
asa nila ka ka.kolekta, pwde nimo
i.alternate imong cause/s of action. You
are boarding a bus, the bus was bump by
a speeding and reckless dumptruck. So
you’re not brought to your destination. So
kinsa may imong file.an ug kaso.Pag
gikan nimo sa terminal duha pay imong
bukton, pag.abot sa unahan kay usa
nalang. Kinsa man imong file.an ug kaso?
← Kani lang bus imong gisakyan wherein in
there is contract of carriage bet. you and
the operator or katong reckless na
dumptruck.Pwede ka ug nay alternative,
in just 1 complaint you are allowed by the
rules, you are allowed 2/more statements
of a claim alternatively.Pwede pud
hypothetically.
← Ex.imong depensa,gifile.an ka ug sum of
money, so you have to answer, you
deny,nakadawat kay kwarta pero
donation ingon niya, then hypothetical…
ASSUMING that it is true, that I borrowed
him a sum of money, the same has
already prescribed.
← When two or more statements are
made in the alternative and one of
them if made independently would
be sufficient, the pleading is not
made insufficient by the
insufficiency of one or more of the
alternative statements.
← Meaning, if you have 2 alternative
statements of cause/s of action, it is
enough that one of them is sufficient.Kay
sa usa gud ka kaso,usa raman ka cause
of action ang gikinahanglan.
Sec. 3. Conditions precedent.
In any pleading a general averment
of the performance or occurrence of
all conditions precedent shall be
sufficient.
← If the filing of action, compliance of
condition precedent is required, your
Page | 45

allegation or averment would be
sufficient
← Ex. If the case is cognizable by the
Katarungang Pambarangay,pwede ran a
magbuhat ug usa ka par. didto [katong
sum of money na ex. Nato]>>>The
filing of this case, the plaintiff filed
a complaint in the office of the Brgy.
Captain of Labangon Cebu City
against defendant but no settlement
was reached. A copy to file
certification of action is hereto
attached as annex C.<<<<< JUST A
GENERAL AVERMENT/ALLEGATION OF
COMPLIANCE OF CONDITION
PRECEDENT.
← Example, actions involving members of
the same family, prior to filing the case,
earnest efforts were executed for the
parties to arrive at amicable settlement.
← Sec. 4. Capacity.
← Facts showing the capacity of a party to
sue or be sued or the authority of a
party to sue or be sued in a
representative capacity or the legal
existence of an organized association of
persons that is made a party, must be
averred. A party desiring to raise an
issue as to the legal existence of any
party or the capacity of any party to
sue or be sued in a representative
capacity, shall do so by specific denial,
which shall include such supporting
particulars as are peculiarly within the
pleader's knowledge.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
So for ex. “Plaintiff by counsel xxx, that
he is of legal age, mao rana, or if he is
filing the case in a rep. capacity, ibutang
na nimo that he is filing the case for and
in behalf of Juan Dela Cruz. A copy of SPA
is hereto attached as annex A.
← What about a corporation? I state nimo
“That plaintiff is a duly organize corp
under the laws of the Rep. of the
Phils.>>>kana simple na kayo but w/out
that allegation, your complaint could be
dismissed on the ground that the plaintiff
has no legal capacity to sue.
← Sa ato pa, katong imong legal capacity
toa to didto sa imong 1st par. adto pd sa
answer sa defendant, iya pud ng
tubagon, either admitted or denied
specifically.
← If par. 1 is admitted,even if wala
mubutang ug legal age, aw
admitted.Pero kay iyanga giingon that
“plantiffis a duly reg. corp under the laws
of the Rep. of the Phils. But do not know
whether rehistrado, unsa man imong
ibutang didto,admitted? Ingnon nimo
didto that par.1 of the complaint is
denied for lack of knowledge as to the
truth of the allegation thereof.
← But if kibaw jud ka na wa siya ma
rehistro, then you say “ the allegations of
par 1 as regards the capacity of the
plaintiff is specifically denied bec the
truth of the matter is the plaintiff is not a
duly registered corp. >>>Bec if you do
not deny, it is deemed admitted.
← Sec. 5. Fraud, mistake, condition of the
mind. In all averments of fraud or
mistake, the circumstances constituting
fraud or mistake must be stated with
particularity. Malice, intent, knowledge
or other condition of the mind of a
person may be averred generally.
← What about fraud, ni state ka ug
condition of the mind…Kahinumdum mo
atong voidable marriage? Naay fraud,
waka kibaw na palahubog diay.Waka
kibaw na imo diayng giminyuan bayot,
fraud. Diri na nimo nahibaloan, naunsa
na ni siya, iyang mga barkada puros man
laki,nya kato man jud mga gwapo.Dili
baya tanang gwapo uyab…babaye, duna
man say uyab na lalaki. So you alleged
fraud in the petition for annulment of
marriage on the ground of fraud,then you
alleged with particularity the facts
constituting fraud.
← Sec. 6. Judgment. - In pleading a
judgment or decision of a domestic or
foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is
sufficient to aver the judgment or
decision without setting forth matter
showing jurisdiction to render it.
← So for ex.,your defense is res judicata,
you alleged that there has been action
filed, that action has been decided and
terminated, in alleging it in your answer,
it is sufficient to allege the judgment
w/out setting forth that the court has
jurisdiction. Pwede na nimo ingnon didto
sa imong answer that this case could be
dismiss on the ground of res judicata
since there has been a pending case
involving the same issues and partners
and the same has already been
terminated.
Page | 46

← Sec. 7. Action or defense based on
document. Whenever an action or
defense is based upon a written
instrument or document, the substance
of such instrument or document shall
be set forth in the pleading, and the
original or a copy thereof shall be
attached to the pleading as an exhibit,
which shall be deemed to be a part of
the pleading, or said copy may with like
effect be set forth in the pleading.
← Two ways in alleging actionable
document:
← State the substance of the
instrument/document in the
pleading and original/copy
thereof be attached to the
pleading as exhibit [COMMON]
Ex.: PN---Jan. 15, 2011 “the defendant
obtained a loan from the plaintiff in the
amount of 300K with a rate of interest
1%/annum as evidenced by a PN duly
signed by defendant,a copy of which is
attached as Annex A…>>>SO KANANG
PROMISSORY NOTE [PN] MAO NAY EX. SA
ACTIONABLE DOC, SO PWEDE NIMO I.STATE
ANG GIST AT THE SAME TIME,I. ATTACH ANG
COPY. PWEDE ORIG/MACHINE COPY, BUT AS
A MATTER OF TECHNIQUE, IT WOULD BE
VERY RISKY IF YOU ATTACH THE ORIGINAL.
Another way, to copy in toto, written in the doc in
the pleading. And if you copy, everything written
in the pleading, there is no need for you to attach
the copy. So kung gist ra gani, you need to attach
the copy,kung imong kopyahon in toto, then no
need to attach the copy.
← What will happen if an actionable
document is not properly pleaded? The
action could be dismissed.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 8. How to contest such
documents. When an action or
defense is founded upon a written
instrument, copied in or attached to
the corresponding pleading as
provided in the preceding section,
the genuineness and due execution
of the instrument shall be deemed
admitted unless the adverse party,
under oath, specifically denies them,
and sets forth what he claims to be
the facts; but the requirement of an
oath does not apply when the
adverse party does not appear to be
a party to the instrument or when
compliance with an order for an
inspection of the original instrument
is refused.
← Sa ato pa, pananglitan PN, properly
pleaded in a complaint, if the defendant
wants to contest the genuiness and due
execution of the doc. Unsa may kalainan
sa genuineness and due execution?
GENUINENESS>>>That has something to do
whether the document is forged/not. That has
something to do whether the signature appearing
in the document is a forgery; whether the agent
is authorize to sign it, or the corp is authorize to
execute if the doc is signed by the corp.
DUE EXECUTION>>> Whether there was force,
there was influence, coercion, intimidation
exerted when the document is signed.
Pwede genuine imong gipirmahan imo jud na
pirma pero not duly executed, bec when you
signed it, you were threatened.
Ex. Recovery of ownership
P plaintiff filed a recovery of
ownership against Mr.D. He alleged that he
is the owner of the parcel of land bec he
bought it.Unsa nay attach didto, syempre
Deed of Sale>>> that is considered
actionable document.
Defendant will deny selling. Bahala
na magkaon kog ginamos,dili nako ni
ibaligya ning yuta kay kabilin ni sa akong
mga ginikanan. That Deed of Sale is a
falsification.. So how will he allege in the
answer?>>> Under Sec 8,He must do so
UNDER OATH,meaning, his answer must be
verified and not only that, set forth what
really is the truth as to him.
So for ex. “ That the plaintiff is a
lawful owner of a parcel of land described
as xxxlocated at xxx. That he acquired
ownership of land by virtue of a sale,copy
of which is attached.
Sa answer se defendant: “ That the same is
specifically denied under oath, the
allegation in par 3 bec the same is falsified,
the signature is forged.
← Bec if you only deny it specifically
and not under oath, it is deemed
admitted.The genuineness and due
execution is deemed admitted. 3
points you MUST REMEMBER:
← It must be specifically denied
← The specific denial must be
under oath
← The adverse party must set
forth, must allege what really
the fact as to him.
← So if it is admitted,unsa may
consequence ana, meaning he cannot
anymore allege that document is a
forgery, he cannot anymore say that the
agent is not authorize to sign it bec due
execution is deemed admitted.
← But other defenses, does it mean iya
gi.admit? Dili, bec iya g.admit mao raman
ang genuiness ug due execution. Other
defenses are still there.Ex.
Page | 47

prescription,genuine bitaw pero prescribe
naman,genuine bitaw pero bayad
naman,payment, illegality.Other defenses
are not waived.Payment,
prescription,estoppels etc.
← There are instances that a party is not
required to deny under oath an
actionable document. There are only 2
instances:
← When a party does not
appear to be a party to the
instrument OR
← When a compliance with an
order for inspection of the
instrument is refused.
← So,if there is an actionable document but
you are not a party,you are not required
to deny it under oath. One of the modes
of discovery is an inspection of document
you request for inspection but it was
refused, then you are not required to
deny it under oath.
REMEMBER: THIS IS AVAILABLE TO BOTH
DEFENDANT AND PLAINTIFF.
…because if reply is not file negative or
affirmative defenses are deemed controverted,
but if the defenses is based on an actionable
document it is necessary that the same must be
answered or must be replied and the reply must
be under oath because the defense is based on
an actionable document.
Q: unsa mn mhitabo kung ang plaintiff d
mkatubag, d mkafile ug reply adtong answer sa
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defendant nga nkabayad na cya unya duna pay
receipts? Deemed admitted. Nkabayad na. So the
possibility would be the case would be dismissed
if completely paid.
Naa sa inyo book ruling the case of Hebert vs.
Road, an old case regarding the effect of
admission of the actionable document.
Then, there is the case of Torribio et.al., vs.
Bedin.
Now, where the case had been tried in disregard
w/ the rule on actionable document and the
plaintiff oral evidence to prove authenticity and
due execution and failed to object on defendants’
evidence and repudiation the rule is deemed
waived, especially if both parties acted in
disregard or overlooked the rule on trial. That
case of Central Surety vs. Hudges.
Q: How do you plead an official document?
 In pleading a official document or official
act, it is sufficient to state that the
document has issued or the act done in
compliance w/ the law.
Another very important is Section 10, Specific
Denial.
Section 10. Specific Denial. - A defendant
must specify each material allegations of
fact the truth of which he does not admit
and, whenever practicable, shall set forth
the substance of the matters upon which he
relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as
is true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form
a belief as to the truth of a material
averment made in the complaint, he shall
so state, and this shall have the effect of a
denial.
JD: A defendant must specify each material
allegations of fact the truth of which he
does not admit and, whenever practicable,
shall set forth the substance of the matters
upon which he relies to support his denial.
o There are 3 ways to support specific
denial.
 One is to specifically deny each
material allegations of fact the
truth of which he does not admit
and shall set forth the substance
of the matters upon which he
relies to support his denial.
 Pwed na nga didto sa iyang answer
mu.ingon ang defendant that he
specifically denies the allegations of
paragraph 2 of the complaint that the
defendant obtain a loan from the plaintiff.
So he denies specifically. And set forth, so
iya pd gi.allege unsay tinuod para niya.
Ibutang niy, because the truth of the
matter is the amount the we received
from the plaintiff was a donation, or
simply mu.ingon cya he denies specifically
the allegations in paragraph 2 that the
defendant obtain a loan from the plaintiff
because the truth of the matter is that he
has never obtained, he has never
borrowed any amount from the plaintiff,
because the truth of the matter is has
never borrowed any amount from the
plaintiff. So unsa mn ang tinuod? Para niya
mao na ang tinuod nga wa jd cya
nkahuwam. That is how you are going to
make a specific denial.
 Another way of making a specific
denial is partial denial or partial
admissions.
 In this situation kung sa isa ka paragraph,
dunay cyay portion nga e.admitt duna
pud cyay portion nga e.deny, then he
shall state so. For example paragraph 1,
ibutang didto personal circumstances of
the party d ba, so paragraph 1 plaintiff
that he is married, of legal age and a
resident of 151 katipunan st. labangon
cebu city, while defendant is likewise
married, of legal age and a resident
where summons could be serve etc. Now,
Page | 48

sa answer sa defendant pwd nah nga naa
cyay partial denial. For example iya nang
admit nga legal age ang plaintiff,
mu.admit nga married pero d cya
mu.admit nga taga cebu city kai he
intends to question the venue. So unsaon
mn na niya, kung ingnon niya sa iyang
answer the allegations in paragraph 1 are
admitted, aw admitted to tanan. Na kai
naa mn portion nga dle e.admit kadtong
residence. So for example ingnon niya
nga paragraph 1 of the complaint is
partially admitted as regards the age of
the plaintiff etc., but the allegation as to
the residence of the plaintiff is
specifically denied because the truth of
the matter is the plaintiff was never been
a resident of cebu city. That is how you
are going to make a partial denial. So
pwd pd nimu balihon. Ingnon nimu, the
allegation in paragraph 1 as regards to
the resident of the plaintiff is specifically
denied because the truth of the matter is
that the plaintiff was never been a
resident of cebu city. The rest of the
allegation are admitted.
 Another way of making a specific
denial is by saying that you do
not have any knowledge.
 But take note that you should do it in good
faith. For example paragraph 1 plaintiff that
he is married, of legal age etc and while
defendant is of legal age etc. ibutang nimu
didto that paragraph 1 of the complaint is
specifically denied for lack of knowledge as
to the truth of the allegations therefore. Wa
d i ka khibw nga ibutang didto sa paragraph
1 nga gibutang didto that the defendant is
likewise married, wa d i ka khibw nga
married ka nga of legal age ka? So that will
show that you did it in bad faith. Another
paragraph 2 allegation sa complaint, that
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sometime on January 15, 2011 the
defendant obtained a loan from the plaintiff,
unya didto sa imung answer paragraph 2
ibutang nimu defendant specifically denied
paragraph 2 for lack of knowledge as to
truth of the matters thereof sufficient to
form a belief etc., that is a denial in bad
faith, that is considered as admissions.
Q: kanus.a mn d i mhitabo nga good faith
ang imung pag deny for lack of knowledge.
For example didto sa katapusan sa
complaint, by reason of the stubborn refusal
the defendant of his lawful obligation the
plaintiff has suffered sleepless night, mental
anguish to which the defendant should be
ordered to pay moral damages in the
amount of1million. Unsaon mn nah nimu
pagtubag didto sa imung answer? Ah mao
na nah, that paragraph 8 of the complaint is
specifically denied for lack of knowledge, so
mao na nay lack of knowledge. Nganu mn?
Wa mn ka khibw ug tibuod ba nah nga
nisuffer ban a cya ug sleepless nights d ba.
Tinud.anay mn jd nga wa ka kahibaw, so
mao na nay gitawag ug specific denial for
lack of knowledge made in good faith.
Because kung mao na imung gideny bsan
naa ka personal knowledge or information,
your denial bisan ug pakapinan pa na nimu
ug specific denial for lackl of knowledge that
would be considered as an admission.
Usbon nko ha importante jd neng section 10.
Section tells as the 3 ways of making a specific
denial.
 No.1 is to specifically deny and
set forth the substance of the
matters upon which he relies to
support his denial. He should
state as to the truth. Unsa mn
ang tinuod.
 Another is partial denial
 Another is lack of knowledge or
information. But lack of
knowledge or information must
be done in good faith.
Note: JD said you should take note on this. Kai
sa ako nang gika.ingon sa inyo unya pang
abugar paninguha jd nga bhala mapildi kai
imposible mn nga tabla or tanan nimu kaso
daog ka paninguha nga mapildi based on the
merits. Meaning to say throught presentation
of evidence dle nang technicalities.
Look at the text of this case, there is case in your
book, the case of Capitol Motors Corp vs.
Yabbott, 32 SCRA 1. This case is an example of a
general denial. If the allegations in the complaint
is not specifically denied that would be
considered as general denial and general denial
is considered as an admissions. So you read this
case, para mkahibw mu gi.unsa pag.answer the
counsel sa defendant nganu mn nga ni.ingon ang
SC nga general denial. Because he just say
specifically denied w/o stating any supporting
statements as to what really the truth according
to the defendant. So SC said deemed admitted
unya pag submit sa defendant sa iyang answer
nga general denial and gibuhat sa plaintiff kai
general denial is considered as an admission he
filed a motion to rendered decision based on the
pleadings. Judgment on the pleadings.
Section 11. Allegations not specifically
denied deemed admitted.- material
averment in the complaint, other than
those as to the amount of unliquidated
damages, shall be deemed admitted if not
specifically denied. Allegations of usury in a
complaint to recover usurious interest are
deemed admitted if not denied under oath.
Take note that denial is specific denial not
because of the word specific, bisag naa pa nang
word nga specifically denied, bsan naa pa nang
word nga specific ang imung denial is not
specifically denial of you do not follow what we
have discuss lately.
So except as to unliquidated damages, so unsa
mn nang unliquidated damages? Kanang
Page | 49

mahitungod sa mga moral damages ang opposite
ana liquidated, kanang wa pay klaro, kanang
magkinahanglan pa ug ebedincya.
Unsa mn pd d i nang liquidated damages?
Kanang g.fixed na dha sa kontrata. So kung
admitted nah then the same shall be considered
proof. But the if bsan g.admit pero the amount
pertains to unliquidated damages the same shall
be not be considered as admitted
magkinahanglan pa gihapon ug evidence.
Allegations of usury in a complaint to
recover usurious interest are deemed
admitted if not denied under oath.
 This is another instance wherein
magkinahanglan ug denied under oath.
1st is when it is an actionable document
and 2nd is when there is an allegations of
usury.
Now, what do you mean by negative
pregnant? When you say that you’re pregnant
you are not negative, positive nah..heheh, pero
nganu gi.ingon nga negative pregnant mn?
 Negative pregnant, that is a kind of
denial, a form of denial, pregnant w/
admissions. This is a kind of denial w/c is
considered as an admission.
Example:
1. you’re are accused of having 82 bank
accounts, but you deny having 82
bank accounts but you said that you
have 4. That is a negative pregnant;
your denial is pregnant w/
admissions. You denied having 82
bank accounts but you admitted
having 4 only.
2. An action for damages. Didto sa kiha
mu.ingon didto ang plaintiff, that the
defendant bumped the car of the
plaintiff and the defendant at the
time under the influence of liquor.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Unya didto sa answer the defendant
iya ra gbutandg didto, the defendant
denies having bumped the car of the
plaintiff under the influence of liquor.
So unsa mn ang iyang g.deny dha?
So diri sa admission, that he bumped
the car but although he was not
under the influence of liquor. You
should also be careful on your denial.
Section 12. Striking out of pleading or
matter contained therein. – Upon motion
made by a party before responding to a
pleading or, if no responsive pleading is
permitted by these Rules, upon motion
made by a party within twenty (20) days
after the service of the pleading upon him,
or upon the court’s own initiative at any
time, the court may order any pleading to
be stricken out or that any sham or false,
redundant, immaterial, imperfect, or
scandalous matter be stricken out
therefrom.
RULE 9
EFFECT OF FAILURE TO PLEAD
Take note of these, this is very important.
Section 1. Defenses and objections not
pleaded. – Defenses and objection not
pleaded either in a motion to dismiss or in
the answer is deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between
the same parties for the same cause, or
that the action is barred by prior judgment
orof by statute of limitations, the court
shall dismiss the claim.
Defenses and objection not pleaded either in a
motion to dismiss or in the answer is deemed
waived. If the case is filed in a wrong venue but
you did not raised it ion a motion to dismiss or
you did not raised it as one of your affirmative
defenses then the same shall be considered
waived.
G.R. Defenses and objection not pleaded deemed
waived.
However, there are objections or defenses
wherein not pleaded, they are not
considered waived. And one of it is jurisdiction.
And we discuss that already. Lack of
jurisdiction, because as what we have learned
jurisdiction over the subject matter can be raised
even on the first time even on appeal. That is the
gen rule. Exception is when there is estoppels or
laches, and take note of the case of Tiham vs.
Sibonghanoy. But the case of Tiham vs.
Sibonghanoy is more on an exception rather than
as a gen rule. Because gen rule is that it can be
questioned even on appeal for the first time.
Another, aside from jurisdiction, is litis
pendencia that there is another action pending
between the same parties for the same cause of
action. So it is not considered waived even if you
did not file it in a motion to dismiss, even if you
did not allege in your answer. You can raise it
later on.
And another is that the action is barred by prior
judgment that is res judicata.
And another is by statute of limitations. That
is something to do w/ prescription even laches.
Now, G.R. the court cannot muto proprio dismiss
a case.
 So even of it is apparent in the complaint
that the case was filed on a wrong venue,
G.R. the court cannot dismiss the case
without a motion from the adverse party.
Exception ka2ng atong gipang.hisgotan
ganina. Jurisdiction, litis pendecia, res
judicata, by statute of limitations the
court may dismissed in any of this ground
provided that any of this grounds are
apparent in the compliant. So sa ato pa
bsan pa ug way jurisdiction but the
allegation is not apparent then the court
cannot dismiss the case muto proprio.
This is what we called as residula
prerogatives. This is a residual power of
the court to dismiss the case muto
Page | 50

proprio due to lack of jurisdiction. So
pananglitan prescription, kung d gani
apparent dha sa allegation nga na
prescribe na ang action d ka dismiss ang
corte kai d mn apparent sa allegation,
unsa mn basihan niya. Pro kung apparent
dha, klaro dha nga prescribe na then a
court may dismiss the case muto proprio.
Naa pd ra bas a Rule 41 residual
jurisdiction, lahe to sya, kani gitawag mn
ni ug residual prerogatives. This is a
power of the court to dismiss the case
muto proprio due to lack of jurisdiction,
etc.
Defenses and objection not pleaded either in
a motion to dismiss or in the answer is
deemed waived. So unsa mn lesson nimu
ane? So bsan imu defenses are hazy, way
klaro, just allege it in your answer. For
example you are in doubt either the action
really prescribe, even if you are in doubt just
allege it in your answer that the complaint
has already prescribe. Or if you are in doubt
whether it was refer to the brgy or not, imu
gpangutana imu client wa pd klaro na tubag,
so if you are in doubt just allege.
Section 2. Compulsory counterclaim, or
cross-claim, not set up barred- A
compulsory counterclaim, or a or cross-
claim, not set up barred.
We have discuss it already Compulsory
counterclaim, or cross-claim if not allege in the
answer considered barred.
Take note ha compulsory, because permissive
counterclaim is not barred.
Very important Section 3.
Section 3. Default; declaration of. – if the
defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice t o
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the defending party, and proof if such
failure, declare the defending party in
default.
JD: and what is the effect if the defendant is
declared in default? The court can rendered
judgment w/o any trial or presentation of
evidence based on the allegations in the
complaint. However if the court believes that
there is a necessity of the plaintiffs to present
evidence then the court may require the plaintiff
to present evidence ex parte.
What do you mean by ex parte? w/o the presence
of the defendant, adverse party. Because once
the defendant declared in default he lost his
standing in court. Wa na cya. What he is entitled
to is a mere notice of the proceedings. Igo nlng
cya pahibw.on kung mutunga cya d na cya
katingog.
When is there a default? There is a declaration of
default after the lapsed of time to file an answer
and upon motion. In other words the court cannot
muto proprio declare the defendant in default.
There must be motion. Bsan pa ug nalapasa na,
ug nkahbw jd ang korte, they cannot muto
proprio declare the adverse party in default,
there must be a motion.
Kung nalapsed na gani unya ayha pa
nagpatabang, in practice, ayaw in ipanabi inyo ra
jd ni kung nilapas na ang period unya wa pa
declare in default, buhati na cyag ug answer
dali2a na ug buhat ug answer kai pwd pa na cay
mafile didto sa korte. The answer can still be
admitted because there is no order of default yet
bsta ang imun reckoning point ana is the
issuance of the order of default. Even if the
period to file answer has lapsed but there is no
order of default yet you can still file an answer.
Of course naa nay exception if it governs the rule
on summary procedure, na d na jd na madala.
Suppose there is an order of default already, is
there a solution? Yes, there is a solution. If there
is an order of default dle ka pwd mudiretso ug
submit sa imung answer, you have 1 st to file a
motion to lift the order of default, to set aside the
order of default. But there are certain
requirements so that your motion will be granted.
Your motion should be verified and attach to the
motion is an affidavit of merit. What do you mean
by an affidavit merit? an affidavit stating the
cause of the default and the cause of the default
is due to FAME, fraud, Accident, Mistake,
Excusable Neglect. And aside from stating the
ground for default or failure to file an answer, you
should also state that you have a meritorious
defense.
Take Note: FAME and MERITORIOUS
DEFENSE.
Because if you just state in the aff or in the
motion that you failed to file an answer because
of fraud etc, but did you not allege that you have
a meritorious defense, you motion will be denied.
It should be FAME and MERITORIOUS
DEFENSE.
What do you mean by fraud? ilad. For example
nagkita mu sa plaintiff or an abogado sa plaintiff,
mao ni sagad nikaha pa mn jd ka oi nga mubayad
mn jd ko, ingon daun ang cliente tagae ko ug 1
month gud cge 1 month, unya 1 month, unya 15
days ra mn to file an answer, file ang abogado sa
plaintiff ug motion to declare in default unya kai
wa mn pd ka nkabayad so declare ka in default.
So unsa mn imu buhaton? File ka ug motion to lift
an order of default. On what ground? On the
ground of fraud. Because for example the
counsel of the plaintiff told you that there is no
need for you to file an answer.
Another Accident, you are on the way to the
court riding your motorcycle na dasmagan mn ka
wa ka ka file.
Mistake, wa tuod ka ingni sa abogado nga din a
pafilon ug answer pro ikw mismo you have a
mistaken belief that there is no need to file an
answer because you have already agreed the
plaintiff that you are going to file your obligation.
Excusable Negligence – take note of the word
excusable. There is no hard and fast rule, kanus.a
mn ka mka.ingon nga ang imung negligent is
excusable, take note here that you were not able
to file you answer because of you negligent. So
ang pangutana is your negligent excusable? Unsa
mn imu standard, barometer or criteria that you
negligence is excusable? So kani magdepende ni
cya sa facts and circumstances which maybe
excusable. For example ikw abogado nagprepare
nka ug answer, unya imu g.instukan imu
Page | 51

secretary n efile pagka.ugma, dai naa ko answer
gbuhat sa a2ng cliente, ugma mn gd naa ko
hearing sa Toledo ikw nlng ane dalikyat sa capitol
ang problema ana kai pagka.ugma imung
secretary taas mn kau ug hilanat so that can be
considered as excusable negligence on the part
of the lawyer.
So, after the issuance of the order of default,
unsa mn buhaton sa defendant? File a motion to
lift an order of default. Take note the
requirements.
Suppose the order of default was not lifted,
the defendant was not able to file a motion
to lift an order of default, the court has
rendered decision, accomplished na ba? Naa
japon ka remedy ana. One of the remedy is to
file an appeal. Can you file an appeal when you
are declare in default? Yes, you file an appeal.
Ang problema lng ana kung wa kai depensa
imuha. But if the ground of your appeal naa ra
didto sa allegations sa complaint for example
prescription then pwd na. or file a petition for
relief from judgment (Rule 38), if the
decision has already become final. Before
the finality of the decision aside from filing an
appeal you may a motion for new trial.
So dghn ka remedy, file a motion to lift the order
of default or if there has been a decision but not
final file an appeal,or motion for new trial FAME
japon ang ground sa new trial, or if the decision
becomes final file a petition for relief from
judgment.
You can even file a certiorari on the ground the
court acted in excess of his jurisdiction. For
example that the order of default is void, you’re
declare in default before the lapsed of time to file
and answer. For example wa pa mulapsed ang 15
days nya naa na order in default. Is the order of
default is valid? No. that is void. And that can be
question through petition for certiorari.
Case of JD: there was already a decision, but he
found out that there is no proper service of
summons since the process server wa jd ni.adto
sa bukid kai sa bukid mn nag.puyo a client,
gpadala ra sa habal2. JD said no proper service of
summons so the court did not acquire jurisdiction
over the person of the defendant thus the
decision is void, and so file petition for certiorari,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ayaw diretso surrender. (guys dghn kau joke c
judge, in my own words ra na)
Thereupon, the court shall proceed to
render judgment granting the claimant
such relief as his pleading may warrant,
unless the court in its discretion requires
claimant to submit evidence. Such
reception of evidence may be delegated to
the clerk of court. (1a, R 18)
(a) Effect of order of default – A
party in default shall be entitled
to notice of subsequent
proceedings but not to take in
the trial. (2a, R18)
(b) Relief from order of default – A
party declared in default may at
any time after notice thereof and
before judgment file a motion
under oath to set aside the order
of default upon proper showing
that his failure to answer was
due tO fraud, accident, mistake,
inexcusable negligence and that
he has meritorious defense. In
such case, the order of default
may be set aside on such terms
and conditions as the judge may
impose in the interest of justice.
(c) Effect of partial default – When a
pleading asserting a claim states
a common cause of action
against a several defending
parties, some of whom answer
and the others fail to do so, the
court shall try the case against
all upon the answers thus files
and render judgment upon the
evidence presented.
JD: for example there are 5
defendants, possible mn nah nga
naay common cause of action nila.
Solidary debtors. A,B,C,D,E. pro c A ra
ang na benefited sa loan kai ang upat
co-makers ra sa loan,ang upat pag
dawat sa complaint ni.ingon hoi
naunsa mn cya wa d i nimu bayre
imung utang ana pd daun c A ayaw
kabalaka ana oi bayran ko na , ah wa
ra pd cla. So c A ra ang ni file ug
answer ang upat wa nanubag. So
what will happen now? So naa
paglaum sa letter c. so when an
action is based on common cause of
action against a several defending
parties some of whom answer and
the others fail to do so, the answer
filed by the answering defendant
shall benefit the others. Therefore the
court cannot declare them in default
and shall hear the case based on the
answers of the answering defendant.
Even if the court will declare the non-
answering defendant in default, still
the answers of the answering
defendant shall benefit the non-
answering defendant, as if they were
not declared in default.
Naa decisions dha sa inyo libro,
basaha na dha wa na ta time
pagdiscuss ana 1 by 1.
As far as declaration of default is
concerned I have given to you that
case of Gomez vs. Motalban, march
14, 2008. You read that case.
Regarding the effect of default.
Can a party declared in default
allowed to testify for his co-
defendants? D nmn cya patingogon
kai he lost his standing in the court,
could he testify as an ordinary
witness in favor of his co-defendant?
Yes. There is that case of Capili vs.
Page | 52

Florendo, October 9, 1987 case in
your book. A defendant who has been
declared in default may testify as an
order witness in court in favor of his
co defendants.
(d) Extent of relief to be awarded – A
judgment rendered against a
party in default shall not exceed
the amount or be different in
kind from that prayed nor award
unliquidated damages.
(e) Where no defaults allowed – if
the defending party in an action
for annulment or declaration of
nullity of marriage or for legal
separation fails to answer, the
court shall order the prosecuting
attorney to investigate whether
or not a collusion between the
parties exist, and if there is no
collusion, to intervene for the
State in order to see to it that
the evidence submitted is not
fabricated.
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Importante japon ni
Section 1. Amendments in general.
Pleadings maybe amended by adding or
striking out an allegation or the name of
any party, or by correcting a mistake in the
name of a party or a mistaken or
inadequate allegation or description in any
other respect, so that the actual merits of
the controversy may speedily be
determined, without regard to
technicalities, and in the most expeditious
and inexpensive manner. (1)
JD: so pleadings, himumdumi 2ng mga pleadings
nga atong nakat.onan, Complaint, Answer, Cross-
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
claim, third-party complaint, now it can be
amended.
How do you amend? Amend meaning you some
words there, you add some parties, if you want to
implead a new party or a new defendant that is
amendment. Simply means amendment is
making any change in the pleading. And
amendment is favored.
How do you amend your pleading? What are you
going to do in order to distinguished an original
pleading and an amended pleading. So for
example, mufile ka ug complaint unya e.amend
nimu. Unsaon mn nimu pagdistinguish or unsa
imu buhaton para dali ra nimu madetermine nga
kana cya amended, gawas sa word nga
amended? So imung buhaton ana, complaint nya
imung gchange katong imung amended
complaint imung titlelan ug Amended Complaint
unya E.underscore nimu. Katong mga words nga
imung gpuno imu pd e.underscore or e.underline.
So that it will be easier for you to point the
words, the phrases, the statements, the
paragraphs that you inserted or added. So naa na
sa section 7 when any pleading is amended, a
new copy of the entire pleading, incorporating
the amendments, which shall be indicated by
appropriate marks, shall be filed. Sometimes in a
bold letters sometimes in an italic.
Take note that the amended pleading supersedes
the original. So katong original wan a to cya ang
katong amended mao na 2. An original is
considered withdrawn and no longer part of the
record. However the filing of the amended
pleading does not retroact to the date of the
filing of the original, hence the statute of
limitation runs until the filing of the amendment.
Take note also that if the amendment introduces
a different cause of action then the prescriptive
period will be interrupted only upon the filing of
the amendment pleading.
D baa to n mn nang nakat.unan nga the filing of
the complaint interrupted the prescriptive period.
Now if you amend your complaint introducing a
different cause of action then the prescriptive
period of the different cause of action that you
new introduce will be interrupted upon the filing
of the amendment pleading.
So if the amendment did not change a different
cause of action then the interruption will retroact
from the filing of the original complaint. (guys pls
check lng s inyo notes kai medyo libog ang
gi.ingon ni judge bwt retroact from the filing).
Another important question is, is amendment a
matter of right? Amendment could be a matter of
right and at the same time a matter of discretion
on the part of the court.
Section 2 tells us when is amendment a matter
of right.
Section 2. Amendments as a matter of right
– A party may amend his pleading once as a
matter of right at any time before a
responsive pleading is served or, in the
case of a reply, at any time within ten (10)
days after it is served. (2a)
JD: take note a party may amend a
pleading. Kining amendment is dle lang para sa
plaintiff pwd sad nga ang defendant mu.amend
sa iyang pleading, an answer is a pleading.
So you can amend your pleading as a
matter of right before a responsive pleading is
filed. Your right to amend as a matter of right is
only once.
Example:
File ka ug complaint now, before
the defendant files his answer sa wa pa cya ni file
sa iynag answer you can amend your complaint
as a matter of right once. So imung g.amend,
pagkahumn nimu ug basa sa amended complaint
nimu naa nmn pd ka nakt.an sayop, wa pa nkafile
ang defendant nimu kai nifile mn ug motion to
extend time. Question: can you file an
amendment as a matter of right? Answer? No,
because you are only allowed to amend your
pleading as a matter of right once. So do you
mean to say that you could no longer amend
your complaint? Does it mean to say that you
cannot file a 2nd amended complaint? Answer?
No, you can amend your pleading the 2 nd time
but this time you need leave of court. You have to
file a motion and ask the court to allow you to
amend the complaint.
Page | 53

Now, when it is a matter of right there is no need
for you to ask permission to the court, to ask
leave of court. However ang uban ang abogado
mapabilib n respectful cla, file na cla ug motion
to file amended complaint. Pro that is not
necessary. That is why on the part of the
defendant it is not advisable to file a motion to
dismiss. Why? Because when you file a motion to
dismiss you just giving the plaintiff an
opportunity to amend his complaint as a matter
of right. So what are you going to file, instead of
filing a motion to dismiss? You file an answer and
just include the grounds for your motion to
dismiss as an affirmative defense. Why? What is
the effect? Because when you file your answer
you have now file a responsive pleading. A
motion to dismiss is not consider as a
responsive pleading. So if you file a motion to
dismiss then you have not filed any responsive
pleading yet and therefore the plaintiff can still
amend his complaint as a matter of right. And so
after filing your answer with affirmative defenses
if the plaintiff wants to amend his complaint, it
would not be a matter of right. Necessarily he
has to file a motion asking the court to amend his
complaint.
November 16, 2012 (Friday)
The last topic was about amendment.
Amendment can be a matter of right, it could
also be discretion on the part of the court.
Matter of right on the part of a party.
Party here could be a plaintiff as regards his
complaint, also could be a defendant as regards
to his answer.
“Sec. 2. Amendments as a matter of right.
← A party may amend his
pleading once as a matter of right at
any time before a responsive
pleading is served or, in the case of
a reply, at any time within ten (l0)
days after it is served.”
Question, when is it a matter of right?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
So, on the part of the plaintiff, he could
amend his complaint as a matter of right before
the defendant files his answer.
On the part of the defendant, his right to
amend his answer is a matter of right before the
plaintiff would file a reply.
Q: Suppose after the defendant is served
with summons, file a motion to dismiss the
complaint. Can the plaintiff still file an amended
complaint despite the fact that the defendant
filed a motion to dismiss?
A: YES! Because a motion to dismiss is
not a responsive pleading.
So, before the service of a responsive
pleading, a party has the absolute right to amend
his pleading, regardless of whether a new cause
of action or a change of theory(?) is introduced.
When you say a matter of right, there is no need
to ask permission from the court. But as we
discussed last meeting, some lawyers as a
matter of courtesy to the court even amending
the pleading as a matter of right, they would file
motion to amend the complaint or pleading,
before amending the pleading.
In one case, decided by the SC, a plaintiff
files a complaint for some of money before the
promissory note became due. Sa wa pa ni-due
ang utang, naningil ug sayo ba. Ana defendant,
ayaw sah kay wa pa kwarta. Because of the
refusal of defendant to pay loan earlier, plaintiff
file a collection for some of money against the
defendant. Upon receipt of the summons
together with complaint. Defendant filed a
motion to dismiss for failure of the complaint to
state cause of action, kay wa paman due. While
the case is pending, the loan became due. Na-
due na siya. So, what gi-buhat sa plaintiff, file
siya ug amended complaint. Should the court
admit the amended complaint? (This was asked
in the 2008 Bar Exam)
A: In the case of Suagman Travel(?) vs.
CA, 455 SCRA 175. According to SC, a complaint
whose cause of action has not yet accrued
cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or
accrual of action while the case is pending. Such
an action is prematurely brought and is therefore
a groundless suit which should be dismissed by
the court by the proper motion filed by the
defendant. In other words, the SC said that it
cannot be remedied by the amended complaint!
But Dean Riano has different OPINION,
because he said the amended complaint should
be admitted because there was no responsive
pleading yet filed.
General rule, before a responsive
pleading is filed, amendment is a matter of right!
Even if the amendment is made in order to give
jurisdiction to the court. Kaning Suagman Case
kay exception to the rule ni. Unya,
QUESTIONABLE pa ni siya na ruling. GENERAL
RULE: Before a responsive pleading is filed,
amendment is a matter of right.
For example, a complaint for a sum of
money is file before RTC for collection of 300K.
Which court has jurisdiction? MASTERA
JURISDICTION OF DIFFERENT COURTS, SPECIALLY
RTC AND FIRST LEVEL COURTS! First level court!
Now, the defendant filed a motion to dismiss on
the ground that the court does not acquire any
jurisdiction. While the motion is pending, the
plaintiff amended the complaint and increase the
amount collectible to 500K. After amending his
complaint, filed a comment on the motion to
dismiss asking the court to deny the same
because the court has now jurisdiction over the
subject matter.
Question: Should the court grant the
motion to dismiss?
Answer: NO! Because the complaint as
already been amended, that the amendment is
proper even it was made without leave of court.
Because amendment is still a matter of right.
Because there was stilt no responsive pleading
Page | 54

filled. (This question was also asked in another
bar exam.)
PERO, kunga naka-file na ug answer, dili
na pwede kung way leave of court. In fact,
panaglitan kung answer pa to ang gi-file sa
defendant, with affirmative defenses that the
court does not have jurisdiction, the complaint
could not anymore be amended. Lahi sa original
problem kay walay jurisdiction ang court iya gi-
amend. Karon, naka-file na responsive pleading
ang defendant, naka-file na ug answer ang
defendant. Di na niya pwede ma-amend and
iyahang complaint.
An amendment of a complaint could not
allowed when its purpose is to confer jurisdiction
upon the court. Since the court must first acquire
jurisdiction over the case in order to act validly
therein. BUT, an amendment to confer
jurisdiction could still be valid done if no
responsive pleading is filed. (This was asked in
the 2005 bar exam.)
← prejudice is caused thereby to the
“Sec. 3. Amendments by leave of court.
← Except as provided in the
next preceding section, substantial
amendments may be made only
upon leave of court. But such leave
may be refused if it appears to the
court that the motion was made with
intent to delay. Orders of the court
upon the matters provided in this
section shall be made upon motion
filed in court, and after notice to the
adverse party, and an opportunity to
be heard.”
Tan-awon nimo ang pag-file sa responsive
pleading.
Unsa man ng responsive pleadings? It
depends. As regards the complaint, the
responsive pleading is the answer. As regards to
the answer, the responsive pleading is the reply.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Kanang motion to amend, when is
already a matter of discretion on the part of the
court, motion to amend must contain notice and
hearing. Butanagan ra ug please take notice that
the foregoing motion is set… on.… Every Friday
afternoon i0set mga hearing. Pahibalo na naay
hearing. If wala, your motion is considered as
mere scrap of paper.
Same ra sa certificate of non-forum
shopping, pero if wala ang imo complaint, will
cause the dismissal of your complaint. And if
deliberately done will cause dismissal with
prejudice. Same ra sa notice of hearing.
“Sec. 4. Formal amendments.
← A defect in the designation of
the parties and other clearly clerical
or typographical errors may be
summarily corrected by the court at
any stage of the action, at its
initiative or on motion, provided no
adverse party.”
These, kanang formal errors like
topographical errors or clerical errors, can be
done even if there is already responsive pleading
is filed.
To summarize, when is amendment of
pleading a matter of right?
Answer: 1. Before an answer is filed.
Before a reply is filed as regards the answer
within 10 days after reply is filed.
2. When the amendment is merely
formal. Meaning, clerical.
If amendment is matter of discretion,
what are the reasons that the court may use in
denying the motion:
1. When it appears to the court that the
motion is made with intent to delay.
(Naa kang Rigalado.) Where the court
has no jurisdiction over the original
complaint and the purpose of the
amendment is to confer the
jurisdiction on the court. (Kato
example nato, ayaw libog kay, akto
primerio nato na example, wala pay
responsive pleading. Pero once naa
nay responsive pleading, di na nimo
ma-amend if the purpose is to confer
jurisdiction upon the court. Timan-e
ninyo!)
2. If it would result in delay.
3. If the plaintiff has no cause of action
of action at the filing of the original
complaint and the purpose of the
amendment is to introduce a
subsequently-accrued cause of
action.
Take not of the responsive pleading.
Maski kalimot mo sa Suagman case. Naa points
gihapon!
“Sec. 5. Amendment to conform to or
authorize presentation of evidence.
← When issues not raised by
the pleadings are tried with the
express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised
in the pleadings. Such amendment
of the pleadings as may be
necessary to cause them to conform
to the evidence and to raise these
issues may be made upon motion of
any party at any time, even after
judgment; but failure to amend does
not affect the result of the trial of
these issues. If evidence is objected
to at the trial on the ground that it is
not within the issues made by the
pleadings, the court may allow the
pleadings to be amended and shall
do so with liberality if the
presentation of the merits of the
action and the ends of substantial
Page | 55

justice will be subserved thereby.
The court may grant a continuance
to enable the amendment to be
made.” (Emphasis Supplied)
Kanang mu-file ka ug complaint, human
file ka answer, duna dayon nah issues. Kanang
man gud complaint, allege facts, na nangutang
ka wa ka kabayad. Facts nah siya. Unya despite
demand, wa kabayad. Facts that should be
alledged in the complaint. Now, kung sa answer
na kining facts na mu constitute cause of action
sa plaintiff. If di nimo allege ang facts didto sa
complaint, kanang complaint wa jud nah cause of
action and i-dismiss jud nah. Like if nangolekta ka
wa nimo gi-state na ni due na. Uns amay imo
kuliktahon? So knahanglan, nangutang ni-due
imo gipanginlan or demand.
So sa imo answer if imo gani ni gi-admit
kani mga allegations, admit ka nakautang ka na
due na ug na wa ka kabayad despite demands.
So, there is no issue. And so the case is now due
for decision. Wa naman lalisonon. Coz these facts
are already admitted by the defendant. PERO, if
imo gani ni gi-contest sa mga facts sa complaint,
gi-admit nimo na nakautang ka per wa nimo gi-
admit wa ka kabayad. Argumentation is
nakabayad na ka. There is now an issue WOON
you already paid. There should be a hearing kay
dunay issue. Kung if walay issue, no hearing.
Unsa may purpose sa hearing kay the
presentation of evidence, paminawon witness by
way of their evidence. So decision nah base on
the pleadings or judgment on the pleadings.
The parties during the trial, general rule,
are only allowed to present evidence as to the
issue agreed. Dili ka pwede makapresent
evidence to prove na issue na wa gisabotan.
When sabotan mga issues to be resolved? During
pre-trial. Now, panaglitan, a party would present
evidence and this evidence is to prove facts na
kani facts wa gi-allege sa complaint or sa answer.
TAKE NOTE: the pleadings are deemed amended.
The pleadings are deemed amended to conform
to the evidence. For example, dili ba niingon man
ko ganiha na kung sa imo complaint wa nisulti na
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ikaw nakabuhat ug demand, kana imo complaint
ma-dismiss to for failure to state cause of action.
Karon ang defendant (kay naanad sigeg tug2 sa
kalse) wa nagbantay na wa diay demand. Na wa
diay gasuwat ug demand, na wa nakasulti didto
sa complaint na nay demand. Kay isuwat or
alleged jud nimo. Kay maayo gani wa pud kaayo
kabantay counsel sa defendant mao wa ka file ug
motion to dismiss. Nagfile answer pero wa nag-
allege for failure to state cause of action. In the
course of the trial, ni-present siya demand letter,
ang plaintiff. Take note na ang demand letter wa
ni siya gihisgutan sa complaint. Ni-present siya
evidence sa demand, wa gihapon ni-object an
pikas. Unsa mahitabo sa complaint? The
complaint is deemed amended.
Pananglitan naka-amgo o nakamata na
ang defendant pag-offer sa demand. “Oi wa man
nah gi-allege ang demand sa complaint ui”. Unsa
mahitabo if evidence is presented and the other
party would object? The court can allow
amendment.
Repeat: If during the trial evidence is
presented to prove issues or facts not alledge in
the pleadings, the pleadings are deemed
amended if these are not objected. But it could
also be objected. What are the grounds for
objection? Wa ni-allege! You cannot present
evidence for a fact not alleged in the complaint.
- If objected, the court may allow
amendment on the pleadings.
This was asked in 2000 bar exam.
Problem: A complaint for sum of money
filed before RTC did not mention any demand for
payment made to the defendant before filing the
case. But during the trial, the plaintiff offered
evidence exhibit A which is the demand letter to
prove that there was extra-judicial demand
made. Without objection from the defendant, the
court admitted it. Is it the court correct in
admitting it?
Answer: Yes. Because it was admitted
without objection from the defendant. It is as if
that the demand was raised in the pleading. The
leading is deemed admitted.
←
“Sec. 6. Supplemental pleadings.
← Upon motion of a party the
court may, upon reasonable notice
and upon such terms as are just,
permit him to serve a supplemental
pleading setting forth transactions,
occurrences or events which have
happened since the date of the
pleading sought to be
supplemented. The adverse party
may plead thereto within ten (10)
days from notice of the order
admitting the supplemental
pleading.”
Unsay kalainan sa amended and
supplemental pleadings?
1. An amended pleading results in the
withdrawal of the original pleading.
Whereas a supplemental pleading is
merely in addition to, but does not
result in the withdrawal of the
original pleading.
2. An amended pleading can be made
as of right, as when no responsive
pleading has yet been file. In
contrast, supplemental pleadings are
always with leave of court.
3.
Quioque vs. Bautista, February 28, 1962.)
Generally, one contract will give rise to
one cause of action. Coz there it can only be
violated once.
Exception: one contract there could be
several causes of action if the contract it contains
stipulations, which are to be performed at
different times or different dates. In that
instance, a violation for each stipulation will
constitute as many causes of action per violation.
Page | 56

Quioque vs. Bautista, February 28, 1962.)
EXAMPLE. Contract of loan has only one
contract. Pero, if the payment of the loan is made
on installment basis, will give rise to different
causes of action. Every installment due would
constitute one cause of action.
However, pananglitan pag-file nimo aning
kasoha, wa ka kafile pag-due sa first installment,
pag-file nimo sa second na, usa nalang imo ma-
file kay kato 1st installment already dues should
be included in the second installment.
When all installments have already due,
you can only file one complaint.
In case pending for the 1 st complaint on
the first installment, 2nd installment became due:
One possible step you could take is to file
supplemental pleading or, another is to file
another complaint.
Example: Mr. D borrowed 100K from C,
payable in 10 monthly installments and there is
no acceleration clause (Note: acceleration clause
= if failure to pay one installment tanan mu-due
na. So, pwede ra nimo matagsa-tagsa if there is
no accelaration clause. Pero pag naay
acceleration clause, usa ra ka complaint imo
mafile kay considered due man tanan).
When the 1st installment became due, Mr
c file a collection for sum of money against C for
the amount of 10k (kay 100k man, payable in 10
monthly installments). After the case was filed,
the 2nd installment becae due, C can file a
supplemental pleading for the second
installment.
Leobrera vs. CA, 170 SCRA 711
The plaintiff here filed a supplemental
complaint but the court denied it because
according to the SC the loan could not be
subjected to a supplemental complaint.
Kana gud supplemental pleading could
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
only be proper when the transaction that is
already dues is related to the transaction subject
of the original complaint. What happened in this
cask ay ang bank nifile ug supplemental
complaint but subject of the supplemental
complaint is another promissory note, not the
same promissory note that of the first PN.
Again: Ang subject sa supplemental
complaint or supplemental pleading must be
related to the subject ft he original pleading. It
must not be separate or independent from the
original complaint.
“Sec. 7. Filing of amended pleadings.
When any pleading is
amended, a new copy of the entire
pleading, incorporating the amendments,
which shall be indicated by appropriate
marks, shall be filed.”
“Sec. 8. Effect of amended pleadings.
← An amended pleading
supersedes the pleading that it
amends. However, admissions in
superseded pleadings may be
received in evidence against the
pleader; and claims or defenses
alleged therein not incorporated in
the amended pleading shall be
deemed waived.”
Everything that we allege in the pleading
is considered as an judicial admission. Example,
in the answer you admit the loan, you are not
allowed to deny it anymore. You are not allowed
to disown such admission anymore. Kanang pag-
admit sa answer, that is considered as judicial
admission, and a judicial admission does not
require proof. Lahi nah siya sa extra-judicial
admission. Judicial admission does not require
proof or evidence., unlike extra-judicial
admission.
What is the effect if your answer, naka-
admit ka sa imo loan, pero later on nag duha-
duha ka, di lang nimo i-admit, you change your
mind. You should now file an amended answer.
Amend kay naay sayop.
Now, sa imong original answer, naa may
allegation na favorable sa plaintiff, could it still
be considered as a judicial admission?
Answer: Not. No more. That is not
considered as a judicial admission. Because a
supercede pleading, original pleading, is already
considered as withdrawn.
The admission that you made in the
original answer could only be considered to be as
extra-judicial admission. What is the effect now?
If the plaintiff believes that the original answer is
useful to his case, to offer it in evidence later on
in the course of the trial. Mark it and offer it in
evidence. Otherwise, the court cannot consider it
anymore. Why? Because it is already not
considered as a judicial admission. (Section 8)
The superceded pleading if it contains
admission ,admission si reduced to a mere extra-
judicial admission.
←
RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
“Section 1. Answer to the complaint.
← The defendant shall file his
answer to the complaint within
fifteen (l5) days after service of
summons, unless a different period
is fixed by the court.”
General Rule: 15 days.
Question: Are there different periods
other than 15 days?
Answer: Yes, Section 2, 30 days.
Another, 60 days when the
summons was served by publication.
Page | 57

← right, the defendant shall answer
“Sec. 2. Answer of a defendant foreign
private juridical entity.
← Where the defendant is a
foreign private juridical entity and
service of summons is made on the
government official designated by
law to receive the same, the answer
shall be filed within thirty (30) days
after receipt of summons by such
entity.”
Naa somewhere sa Rule 14 Section 14,
15, naa diha ang gitawag na summons by
publication.When summon served by
publication, the defendant is allowed to file his
answer within to a period of not less than 60
days.
In counting the 15-day period, you
exclude the first and include the last. Exclude the
date when you receive the summon, and include
the last.
If the 15th day falls on a Saturday, or
Sunday or a holiday, automatic extension, even if
you do not file a motion to extend, automatic
extension. The last day will be automatically
extended to the first working day.
Kani 15 days if apiki jud ka sa time, you
can (lawyer) can file a motion to extend. Motion
to extend time to answer. You are allowed to file
until the 15th day. You file a motion for extension
within the period to file an answer.
General rule, you can file for extension.
Exception, when the case is governed by
the rules of procedure. You canot ask for
extension.
← yabag. Kay posible nga adunay
“Sec. 3. Answer to amended complaint.
← Where the plaintiff files an
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
amended complaint as a matter of
the same within fifteen (l5) days
after being served with a copy
thereof. Where its filing is not a
matter of right, the defendant shall
answer the amended complaint
within ten (10) days from notice of
the order admitting the same. An
answer earlier filed may serve as the
answer to the amended complaint if
no new answer is filed. This Rule
shall apply to the answer to an
amended counterclaim, amended
cross-claim, amended third (fourth,
etc.) party complaint, and amended
complaint-in-intervention.”
Suppose the plaintiff filed an amended
complaint, either as a matter of right or
discretion on the part of the court. Pero ang
defendant a ni0file ug amended answer. Can he
be declare in default?
Answer: NO! If the defendant did not file
an answer to the amended complaint, then the
original answer filed shall be considered as his
answer to the amended complaint.
Pero wa pa siya ka file ug answer
nya gi-amend na. He should file an
answer.
For example. Naka dawat siya ug
summons. Unya within 15 days pa
man ka adlaw mo file ug answer.
Ingon siya, ari lng ko inig ka 15 mo
file. Pag ka ika 14, nakadawat siya
ug amended complaint. Wa pa siya
ka answer. Wa pa siya ka file. So
kinhanglan na mo file gyud siya ug
answer. So, ang iya answer mag basi
na ngdato sa amended complaint.
Kay kung ang iyang answer magbasi
pa sa original complaint posible mag
gipang usab sa plaintiff. Otherwise
he could be declared in default.
Sec. 4. Answer to counterclaim or cross-
claim. A counterclaim or cross-claim must be
answered within ten (l0) days from service.
We have learned that the
defendant in filing his answer may
include a cross-claim or
counterclaim. Dapat makabalo na
gyud mo unsay cross-claim ug
countercliam.
When the answer of the
defendant has counterclaim or
cross-claim, the plaintiff may file his
answer within 10 days. Dili naka
orderan sa court ana. Naa ra na
nimo if mo file ka or dili.
Nya as what we have learned,
compulsory counterclaim need not
be answered. Nya ang permissive
counterclaim needs an answer. But
if the plaintiff wants to file his
answer, he may file his answer
within 10 days from service of the
answer of the defendant so with the
cross-claim.
In permissive counterclaim, it
needs an answer. Otherwise THE
PLAINTIFF may be held in DEFAULT.
In real sense, kanang Permissive
counter claim is really a separate
claim. It arises out from different
transaction.
Sec. 5. Answer to third (fourth, etc.)- party
complaint. The time to answer a third (fourth,
etc.)- party complaint shall be governed by the
same rule as the answer to the complaint.
Ang 3rd party complain is another
complaint. It is like an ORIGINAL
COMPLAINT. So, there must be
summon nga i-issue sa 3rd party
defendant. Di pareho sa permissive
counterclaim nga way summons.
Ang rule ani pareho sa kung dunay
Page | 58

original complaint. Answer must be
served within 15 days after the
receipt of the summons.
Sec. 6. Reply. A reply may be filed within ten
(l0) days from service of the pleading responded
to.
Reply is filed usually by the
plaintiff. Generally reply is not
necessary because new matters raised
in the answer are deemed
controverted. There are two instances
na ang reply necessary, to wit:
0 when the defense of the
defendant is based on an actionable
document.
1 When he raise usurious
rate.
Pede ba mo file ang defendant
ug reply?
Ans: Yes. The defendant will file
a reply when the plaintiff files an
answer to the defendant's anwer with
counterclaim or cross-claim so with the
co-defendant. Pananglitan,
Si D ug si A gikiha ni C. Si D ni
file ug answer with cross-claim. Unya
si A ni file ug answer with counterclaim
ngadto sa cross-claim. Human ni file si
A sa answer with counterclaim ngadto
sa cross-claim, si D ni file ug reply
ngadto sa counterclaim.
Sec. 7. Answer to supplemental complaint.
A supplemental complaint may be answered
within ten (10) days from notice of the order
admitting the same, unless a different period is
fixed by the court. The answer to the
complaint shall serve as the answer to the
supplemental complaint if no new or
supplemental answer is filed.
Same rule to the answer
to amended complaint.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 8. Existing counterclaim or cross-
claim. A compulsory counterclaim or a cross-
claim that a defending party has at the time he
files his answer shall be contained therein.
Atong nahibaw-an na kanang
compulsory counterclaim kay
pinugsanay gyud. Kung di ka mo
raise ug answer sa counterclaim,
the same will be considered
barred. So that it could be
considered as compulsory
counterclaim, the same must be
existing at the time that you file
your answer.
So, kun duna kay counterclaim
nya di pa na existing from the time
you file your answer, then it
cannot be considered as
compulsory counterclaim.
Therefore, it cannot be barred
even if you do not raise it.
Sec. 9. Counterclaim or cross-claim arising
after answer. A counterclaim or a cross-claim
which either matured or was acquired by a party
after serving his pleading may, with the
permission of the court, be presented as a
counterclaim or a cross-claim by supplemental
pleading before judgment.
Kung ang imo counterclaim ug
cross-claim will accrue after an
answer is filed, the same may be
presented by filing a suplemental
pleading before judgement. Pwede
supplemental, pwede pud ka mo file
ug separate complaint.
Sec. 10. Omitted counterclaim or cross-
claim. When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment
before judgment.
Pananglitan naa jud kay
compulsory counterclaim, barred jud
na as a general rule. Kung nakalimtan
nimo nga naa pa diay kay compulsory
counterclaim, pede nimo usbon ang
imo answer with leave of court.
Sec. 11. Extension of time to plead. Upon
motion and on such terms as may be just, the
court may extend the time to plead provided in
these Rules.
The court may also, upon like terms,
allow an answer or other pleading to be filed
after the time fixed by these Rules.
If the period to file answer has
already lapsed, but the court has not
yet issued an order in default to the
defendant, the latter can still file an
answer as long as the plaintiff will not
be prejudiced.( Paramount Insurance
Company vs. E.C. Ordonez Corp,
August 28, 2008).
Default judgment is generally
disfavored. Late answer, pede jud na
ma-admit except kung ma govern sa
summary procedure. Ang imo
buhaton ana gyud kung late na ang
imo answer file na lang kay kung di
makabantay ang pikas ana, di ba ma
waived man?
RULE 12
BILL OF PARTICULARS
Section 1. When applied for; purpose. Before
responding to a pleading, a party may move for a
definite statement or for a bill of particulars of
any matter which is not averred with sufficient
definiteness or particularity to enable him
properly to prepare his responsive pleading. If
the pleading is a reply, the motion must be filed
within ten (10) days from service thereof. Such
motion shall point out the defects complained of,
the paragraphs wherein they are contained, and
the details desired.
Page | 59

A bill of particulars is a motion.
Your title in your motion is Motion
for Bill of Particulars. When are you
going to file a motion for bill of
particulars?
Answer: Before responding to a
pleading because it is vague. You
ask the court to order the petitioner
to specify with particularity or with
definite statement of the
allegations in the complaint.
Example, you file a petition for
annulement of marriage. Ang imong
complaint mubo ra kaayo, “That
you want your marriage to be
annuled on the ground of fraud
perpetrated by the respondent.” Is
there a need to file a Motion for Bill
of Particulars?
Answer: Yes. Unsa na fraud?
Daghan mang klasing fraud.
Palahubog siya? Bayot siya? Nasakit
ug AIDS? You wil ask the court to
order the petitioner to specify what
particular act or acts committed by
the respondent that will constitute
fraud.
Is filing a Motion for Bill of Particular
exclusive only to the defendant?
Answer: No. Kay ang plaintiff pede
man pud mo file ani. Maka file man
siya ug responsive pleading. For
example, ang plaintiff ni file ug
complaint. Unya ang defedant ni file
ug answer. Nya sa iya answer ,
gibutang didto nga nakabayad na.
So ang plaintiff pede mo file ug
motion to direct the defendant to
specify when the payment is made?
how much was paid? to whom it
was paid? Who paid? These are the
questions that need answers from
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the defendant. Mao ni gamit sa Bill
of Particulars.
Sec. 2. Action by the court. Upon the filing of
the motion, the clerk of court must immediately
bring it to the attention of the court which may
either deny or grant it outright, or allow the
parties the opportunity to be heard. (2008 BAR
Exam)
Action by the court upon filing a
Motion for Bill of Particulars
← deny
← grant
Can the court outright deny the
Motion for Bill of Particulars?
Answer: Yes, if the court finds out that
the motion is baseless.
Sec. 3. Compliance with order. If the motion
is granted, either in whole or in part, the
compliance therewith must be effected within
ten (l0) days from notice of the order, unless a
different period is fixed by the court. The bill of
particulars or a more definite statement ordered
by the court may be filed either in a separate or
in an amended pleading, serving a copy thereof
on the adverse party.
Pananglitan ang usa ka party ni
file ug Motion for Bill of Particulars
(this motion is not a responsive
pleading). Can the plaintiff amend his
complaint? Yes. He can amend as a
matter of right.
Remember: Yaw na lang pag file
ug Motion for Bill of Particulars kay
mura ra ug imong gitabangan ang
imong kontra pag pa nindot sa iyang
complaint. So, tan-awa kung
makatabang ba ni nga remedy before
ka mo file ani. He who has a claim
has the duty to prove the same. If
you cannot prove your complaint,
then it could be dismissed.
Sec. 4. Effect of non-compliance. If the order
is not obeyed, or in case of insufficient
compliance therewith, the court may order the
striking out of the pleading or the portions
thereof to which the order was directed or make
such other order as it deems just.
Suppose the court upon motion
of the defendant that the complaint is
vague. He wants the plaintiff to
specify with particularity the latter's
complaint. If the plaintiff did not
comply the order from the court, what
would be the consequence?
Answer: The plaintiff's case could be
dismissed. The pleading could be
stricken out from the records.
The court ordered the defendant
to particularize his answer. So, the
Plaintiff files a motion for bill of
particulars. The court granted the
motion but the defendant failed to
comply the order. What would be the
consequence?
Answer: The defendant could be
declared in default.
Sec. 5. Stay of period to file responsive
pleading. After service of the bill of particulars
or of a more definite pleading, or after notice of
denial of his motion, the moving party may file
his responsive pleading within the period to
which he was entitled at the time of filing his
motion, which shall not be less than five (5) days
in any event.
When you file a Motion for Bill of
Particurs, the running of the
reglementary period is stopped. For
example, diri ka ni file sa ika napu ka
adlaw, then mohunong. Murag
stopwatch ba. If sa ika 14 ka ni file ug
motion for bill of particulars, nya ni
stop. If gi-deny na, dili lng kay usa na
Page | 60

lng ka adlaw imo mabilin pag file sa
answer. Gitagaan pa ka sa balaod ug
five days.
Sec. 6. Bill a part of pleading. A bill
of particulars becomes part of the
pleading for which it is intended.
Matters that
have been particularized will become
part of the pleading.
RULE 14
SUMMONS
What we have learned, once the
case is filed in court, the court
thereby automatically acquired over
the plaintiff. Automatic na. Now, the
next step is to acquire jurisdiction
over the person of the defendant.
How can the court acquire jurisdiction
over the person of the defendant? By
serving summons.
Summons is only an order
directing the defendant to file an
answer within 15 days from service
thereof with a warning that failure to
file his answer, he will be declared in
default and the court will act on the
relief prayed for by the plaintiff.
Who will issue the summons? By
the clerk of court.
Section 1. Clerk to issue summons. Upon the
filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to
the defendants.
Ang clerk usahay mas hawod pa
sa huwes. Si Atty. Ygnacio is an
example ingon si Tablada ay.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 2. Contents. The summons shall be
directed to the defendant, signed by the clerk of
court under seal, and contain:
(a) the name of the court and the names of the
parties to the action;
(b) a direction that the defendant answer within
the time fixed by these Rules;
(c) a notice that unless the defendant so
answers, plaintiff will take judgment by default
and may be granted the relief applied for.
A copy of the complaint and order for
appointment of guardian ad litem, if any, shall be
attached to the original and each copy of the
summons.
Together with the summon, i-apil
jud ang complaint. Naka attach ang
complaint ngadto with the annexes of
the complaint. Kung daghan kag
defendants, ang number of copies
sometimes mas daghan pa sa no. of
defendants. Because each of the
defendants must be accomplished
with the copy of the complaint.
Pero dihay kaso. Nireklamo siya
kay gi declare man siya ug default.
Kay pagdawat niya sa summon wa gi-
attach ang complaint. So, ni reklamo
siya. He questioned the default order
of the court. What is the answer of
the SC?
Answer: SC said that failure to attach
a copy of the complaint in the
summon is a mere technical defect.
When the summon is served, the
court acquires jurisdiction over the
person of the defendant. Ang maka
pa acquire ug jurisdiction dili ang
complaint but the summon.
Kaning summon naay duha ka
functions: What are these functions?
← to acquire jurisdiction over the
person of the defendant
← to inform the defendant
regarding the case against him or to
notify him that there is a case filed
against him so that he will be given
the opportunity to be heard for the
claim against him
What will happen if there was
no service of summon or there is
improper service of summon?
Answer: The court cannot acquire
jurisdiction over the person of the
defendant. The proceeding and the
judgment of the case will be void and
the void decision does not attain
finality.
Aside from the service of
summon, the court can acquire
jurisdiction over the person of the
defendant by voluntary appearance
in court. Remember that the
voluntary appearance in court
does not only mean personal
appearance. Dili limited sa personal
appearance ha because filing a
pleading in court is voluntary
appearance.
When a defendant, who was not
served with summon, filed a motion
for extension of time to file answer,
his act of filing is considered as
voluntary appearance. Or if he was
not served with summon or the
summon was served improperly but
he files a motion for bill of particulars,
his act of filing the same is
considered as voluntary appearance (
Pan Asiatic Travel Corp. vs CA 164
SCRA 623).
When the defendant was already
served summon regarding the
original complaint, no further
summon is required in the amended
complaint.
Page | 61

Pananglitan, C filed a case
against D. The summon was served
on D. Later on, C amended his
complaint by adding E as another
defendant. Is there a need to serve a
new summon to E?
Answer: Yes. There was no summon
yet served on him.
Service of summon upon the
defendant is very important.
Especially when the case is an action-
in-personam. As regards to action-
in-rem and action quasi-in-rem,
what is required for the court is to
acquire jurisdiction over the res or
property because summon served
to the defendant in these actions is
only for the purpose of giving him
due process.
Sec. 3. By whom served. The summons may
be served by the sheriff, his deputy, or other
proper court officer, or for justifiable reasons
by any suitable person authorized by the
court issuing the summons.
MTC ug MTCC walay clerk of
court. Ang mo serve didto mao ang
mga process server. Kung pananlitan
walay sheriff sa RTC wala puy
process server, anybody from the
court can serve summon. Mao nay
gi-mean sa other proper court
officer.
Can other person be allowed to
serve summon?
Answer: Yes if that person is
authorized by the court.
In civil case, the defendant tuay
yuta sa mga abu sayaff. Do you
think moadto didto ang mga process
server? Aw mahadlok man, so,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
posible ang mga military as long as
authorized by the court or any
suitable person is authorized by
the court mohatud sa summon.
Kung bukid gyud kaayo. So lisod
kaayo i-adto. So the court can
authorize the Brgy. Captain. Ang inyo
ra gyud tan-awon THERE MUST BE
AN AUTHORITY FROM THE
COURT.
Sec. 4. Return. When the service has
been completed, the server shall, within
five (5) days therefrom, serve a copy of
the return, personally or by registered
mail, to the plaintiff's counsel, and shall
return the summons to the clerk who
issued it, accompanied by proof of
service.
Kung kinsa man ni nga gisugo sa
court, mohimo gyud siya ug report
or RETURN. He must state when was
the summon served? Who was
served?
Ngano kinahanglan man
pahibaw-on ang abogado? Aron
maka bantay siya whether or not
nag file siya ug answer within the
reglementary period. Kung wala,
maka file siya ug motion to declare
the defendant in default.
Supposed the summon was not
served because there was a change
of address of the defendant. Just the
same, the sheriff must make a report
that the summon was not served on
the ground that the defendant could
not be located in the stated address
of the complaint.
Sec. 5. Issuance of alias summons. If a
summons is returned without being served on
any or all of the defendants, the server shall also
serve a copy of the return on the plaintiff's
counsel, stating the reasons for the failure of
service, within five (5) days therefrom. In such a
case, or if the summons has been lost, the clerk,
on demand of the plaintiff, may issue an alias
summons.
Sec. 6. Service in person on defendant.
Whenever practicable, the summons shall be
served by handing a copy thereof to the
defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him.
The addresses of the defendant
and the plaintiff should be stated in
the complaint. Para makabalo ang
sheriff taga-asa ang defendant.
Unsaon pag serve? Timan-i hap
ang term , SERVICE IN PERSON. Dili
Personal Service. Service in person is
by giving a copy of summon to him.
If naay di modawat nga
defendant, unsay buhaton sa sheriff?
Answer: You tender it to him. So sa
imong report butangan nimo nga
refused to receive and sign.
Kung modawat nya dili mo
pirma?
Answer: Butangi sa report nga HE
received but refused to sign.
SERVICE IN PERSON is the
primary mode of serving summon.
What about if the defendant cannot
be found in his residence kay sige
lang ug lakaw- lakaw. Unsay buhaton?
Read Section 7.
Sec. 7. Substituted service. If, for justifiable
causes, the defendant cannot be served within a
reasonable time as provided in the preceding
section, service may be effected (a) by leaving
copies of the summons at the defendant's
residence with some person of suitable age and
Page | 62

discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place
of business with some competent person in
charge thereof.
Using the language of the
Supreme Court, if service of summon
in person is impossible, the sheriff may
resulted to substituted service. How?
In the case of Afdal vs. Carlos,
December 01, 2010, Supreme Court
said:
If the substituted service will
be effected at defendant’s house or
residence, it should be left with a
person of "suitable age and discretion
then residing therein." A person of
suitable age and discretion is one who
has attained the age of full legal capacity
(18 years old) and is considered to
have enough discernment to understand
the importance of a summons.
"Discretion" is defined as "the ability to
make decisions which represent a
responsible choice and for which an
understanding of what is lawful, right
or wise may be presupposed." Thus, to
be of sufficient discretion, such
person must know how to read and
understand English to
comprehend the import of the summons,
and fully realize the need to
deliver the summons and complaint to
the defendant at the earliest
possible time for the person to take
appropriate action. Thus, the person
must have the "relation of confidence" to
the defendant, ensuring that the latter
would receive or at least be notified of
the receipt of the summons. The
sheriff must therefore determine if
the person found in the alleged
dwelling or residence of defendant is
of legal age, what the recipient’s
relationship with the defendant is,
and whether said person
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
comprehends the significance of
the receipt of the summons and his
duty to immediately deliver it to the
defendant or at least notify the
defendant of said receipt of
summons. These matters must be
clearly and specifically described in
the Return of Summons.
November 18, 2012 (Sunday)
Sec. 6. Service in person on defendant.
Whenever practicable, the summons
shall be served by handing a copy
thereof to the defendant in person,
or, if he refuses to receive and sign
for it, by tendering it to him.
The last topic that we discussed was about
service of summons. You should remember that
the primarymode of service of summons is by
service in person. But if there are justifiable
reasons wherein personal service in person
cannot be promptly made then substituted
service of summons could be validly made but it
is required that the justifiable reasons should be
stated in the return. We have learn that the
serving officer, such as the sheriff, after serving
summons, he is required by the court to make a
report whether or not the summons was served .
if it was served then he should state in his return
how was the service made. If the service is made
througg substituted service, he should state the
reasons, and e state sad didto kinsa man
nakadawat. If the Sheriff ot any other officer
serving the summons fails to state in the return
the reasons why personal service was not made
the substituted service would be considered
improper.
Potenciano II vs. Barnes
August 20, 2008
The SC states the 2 requiites so that substituted
service could be considered valid:
1. That the defendant cannot be served
personally within a reasonable time
2. That the impossibility of prompt
service should be shown stating the
efforts exerted made to find the
defendat personally, and the facts
that such efforts fail. And this
statement should be stated in the
return.
In serving summons the defendant could be
served with summons in the place other than the
one mentioned in the complaint. The summons
could be served in aplace other than the one
mentioned in the complaint.
Example: ang Sheriff in the afternoon served
summons sa balay sa defendant. Nya wala didto
ang defendant. Nya wala lng sa siya mi balik sa
office adto lng sa siya sa ayala kay nag sale,
anyway duna man koy katarungan kung nganong
wala ko sa office, nag serve man kog summons.
Unya tua man diay ang defendant sa ayala nag
shopping sad. So iyang gi duol. “Sir sheriff ko sir,
duna unta koy e serve nimo nga summons”.
Ingon ang defendant, “di ko mudawat ana, adto
didto sa balay, ipa receive didto, ngano gud dinhi
nga dili man ko gapuyo dinhi.” Mi insist jud ang
sheriff, unya dili man jud mu dawat ang
defendant. Unsaon man na? ingon ang sheriff “
aw ana lang na nimo sir.” Question: is there
proper service of summons? suppose the
defendant just ignored the summon because he
believed that the summons should be served at
his residence and not in any other place, could he
be declared in default? YES, there was proper
service of summons, because the summons could
be served in the place other than the place
mentioned in the complaint. Could it be served
anytime? Yes it could be served anytime. LAOS
vs. CA 214 SCRA 688
Question: can the summons be served by
registered mail? Could it be sent to the defendant
through registered mail? NO. service of summons
by registered mail is invalid.
Now going back to substituted service. Tan awn
sad sa sherrif kung kinsay naka dawat. Kung sige
nag balik balik didto ang sheriff nya dili jud niya
ma abtan ang defendant, he can now say that
Page | 63

service in person upon the defendant cannot be
promptly made, so it can now be justifiable in
resorting to substituted service.
Sec. 7. Substituted service.
If, for justifiable causes, the
defendant cannot be served within a
reasonable time as provided in the
preceding section, service may be
effected (a) by leaving copies of the
summons at the defendant's
residence with some person of
suitable age and discretion then
residing therein, or (b) by leaving
the copies at defendant's office or
regular place of business with some
competent person in charge thereof.
In resorting to substituted service lain pa pud nga
requirement ang kailangan.
That the person to whom it is given should be
person of:
1. Age
2. And Discretion
Dli sad nga basta basta rasad nimo e serve ang
summons other than the defendant. Kay kung
imo na e serve didto sa tawo nga ga tanum og
grapes nga seedless or meenus ug kabuot basin
kanang summons himuon nag tabanog.
This is very important! Kay kung magpataka
raka ug hatag didto for example minor de edad
basin niya dili na mahatag sa defendant.
In one case the defendant is residing in a
subdivision labi nang mga high class nga
subdivision, dli k aka basta basta sulod sa
subdivision. And so here is the instruction given
by the defendant. “wla jud tao imong pasudlon
dri sa balay ha, kung wala ko. Walay pa adtuon
nimo sa balay, so kadaghan mag balik balik ang
sheriff, kutob rajud siya sa gate, kay gi ignan
man ang guard nga wala pasudlan sa balay. So
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
walay service in person kay wala man jud siya
diha. Dili pud siya ka substituted service kay ang
substituted service didto mana hinuon sa balay
or sa office. So iyang gi himo iyang gihatag sa
guard. “manong guard, ikaw nlang hatag sa
defendant bih, ikay receive ani bih”, so the guard
eventually gave the summons together with the
copy of the complaint to the defendant. The
defendant filed a motion to dismiss the case on
the ground that the court did not have
jurisdiction over his person because there was
improper service of summons. Matud pa niya the
service of summons upon the guard could not be
considered service in person, it could not also be
considered as substituted service. Matud pa niya
substituted service should be made at the
residence or at the office by leaving it with
persons with age and discretion.
Question: Was there proper service of summons.
Answer: Robinson vs. Miralles 510 SCRA 678.
There was proper service of summons
where the summons was made upon the security
of the subdivision, where the security guard was
instructed not to allow anybody to proceed to
her residence whenever she is out.
In another case:
The sheriff served the summons upon the
defendant at the latter’s residence. The
defendant was not around. So balik siya sa
opisina kay plano niya mubalik ra siya igka ugma.
Ang kato diay defendant naka hibalo na nga naa
siyay kaso kay tingaligi sultian sa helper. So nia
adto siya sa iyang abogado, nya ang iyang
abogado mi sgo sa iyang messenger, ipa verify
didto sa sheriff kung tinuod ba nga dunay kaso.
Pagka kita sa sheriff, ang imo diayng amo ang
abogado aning defendant, so gihatag sa sheriff
didto sa messenger. Gidawat pud sa messenger.
Question: Was there proper service of summons
upon the defendant?
Answer: NO. it cold not be considered as service
in person nor proper substituted service.
(Potenciano II vs. Barnes August 20, 2008) In
giving legal basis just give the requisites in giving
a valid substituted service of summons under
section 7.
General Rule: There is no summons by mail
Exception: when summons is made by
publication
TAKE NOTE: When summons by publication is
allowed by law, the service of summons by
publication should be coupled with service of
summons by registered mail. KALUHA JUD NI SILA
DUHA. Kuyugan jud ug service uof summons by
registered mail ang summons by publication.
Sec. 8. Service upon entity without juridical
personality.
When persons associated in an entity
without juridical personality are sued under
the name by which they are generally or
commonly known, service may be effected
upon all the defendants by serving upon
any one of them, or upon the person in
charge of the office or place of business
maintained in such name. But such service
shall not bind individually any person
whose connection with the entity has, upon
due notice, been severed before the action
was brought.
We have learned that a group which is not
registered cannot sue because it has no legal
personality. But it can be sued.
How should the summons be served? Upon
anyone of them or upon the person in charge of
the office or place of business maintained in such
name.
And in the answer, if mutubag na ni sila. In the
answer the defedants must state all their names.
Dli katong unregistered corporation anme but
kato jud ilang name. Rule 3 sec. 15.
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Sec. 9. Service upon prisoners.
When the defendant is a prisoner
confined in a jail or institution,
service shall be effected upon him
by the officer having the
management of such jail or
institution who is deemed deputized
as a special sheriff for said purpose.
Ang mu serve ani mao ra ang officer having the
management of such jail- the jail warden or his
deputy. He should serve the summons as special
sheriff. So dili ang sheriff maoy mu serve kung
dili katng officer having management of such jail.
Sec. 10. Service upon minors and
incompetents.
When the defendant is a minor,
insane or otherwise an incompetent,
service shall be made upon him
personally and on his legal guardian
if he has one, or if none, upon his
guardian ad litem whose
appointment shall be applied for by
the plaintiff. In the case of a minor,
service may also be made on his
father or mother.
We have learn that a minor or incompetent may
sue and can be sued but there is one
requirement:
He should be assisted by a guardian.
A legal guardian.
1. guardian appointed by the court,
2. the parents
3. or the guardian ad litem- he is
appointed as guardian just for the
purpose of that case
E apil ang mama ug papa kung e kiha siya, kung
siya pod mu kiha e apil pud ang mama ug papa.
Dili pwede nga siya siya ra ang mu kiha. Dili pud
siya pwede nga siya ra ang e kiha, duna jud siyay
kauban.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 11. Service upon domestic private
juridical entity.
When the defendant is a corporation,
partnership or association organized under
the laws of the Philippines with a juridical
personality, service may be made on the
president, managing partner, general
manager, corporate secretary, treasurer, or
in-house counsel.
Take note that the enumerations here are
exclusive:
1. president,
2. managing partner,
3. general manager, Take note: dili
branch manager.kanag manager nga
over all. Kanang tua sa main office.
4. corporate secretary,
5. treasurer,
6. or in-house counsel- lahi ni siya sa
retainer.
The enumerations here are exclusive, service of
summons to others is void. (Paramount
insurance corp. vs. A.C. Ordonez Corp.
August 6, 2008)
Illustration:
If ang kaso naa sa Cebu nya ang isa sa defendant
naa sa Ilocos. It is not necessary for the sheriff to
personally go there. Ang court here may
coordinate with the court there para mag serve
ug summons. So just imagine ang sheriff diri sa
cebu muadto jud sa ilocos para mag serve ug
summons, pwede pud pero aron dili kayo gasto
mag mail lng ang clerk of court sa cebu para sa
sheriff didto sa Ilocos para e serve ang summons.
Take note: that these officers who are
authorized to receive summons are different from
those officers to sign certification against forum
shopping. Kani siay ang gi kiha kay corporation.
Kung ang nag kiha kay ang corporation. Kinsa
may authorized sa pag sign sa certification
against forum shopping?
Ans: Rule 7 sec 5. (please see d provisions. Mao
rman ingon ni sir)
What about if the corporation is already
dissolved? Pwede pa ban a siya makiha?
Remember under the corporation code, the
winding up of corporation affairs. So even if the
corporation is already dissolved, proper service of
summons could still be had to the last set of
officers.
Sec. 12. Service upon foreign private
juridical entity.
When the defendant is a foreign private
juridical entity which has transacted
business in the Philippines, service may be
made on its resident agent designated in
accordance with law for that purpose, or, if
there be no such agent, on the government
official designated by law to that effect, or
on any of its officers or agents within the
Philippines.
Duna na niya siyay Amendment.
AM. No. 11-3-6-SC AMENDMENT OF
SECTION 12, RULE 14 • OF THE RULES
OF COURT ON SERVICE UPON FOREIGN
PRIVATE JURIDICAL ENTITY
Section 12, Rule 14 of the Rules of Court is
hereby amended to read as follows:
"SEC. 12. Service upon foreign private
juridical entity. —
When the defendant is a foreign private
juridical entity which has transacted
business in the Philippines, service may be
Page | 65

made on its resident agent designated in
accordance with law for that purpose, or, if
there be no such agent, on the
government official designated by law to
that effect, or on any of its officers or
agents within the Philippines.
If the foreign private juridical entity is not
registered in the Philippines or has no
resident agent, service may, with leave of
court, be effected out of the Philippines
through any of the following means:
a) By personal service coursed through the
appropriate court in the foreign country
with the assistance of the Department of
Foreign Affairs;
b) By publication once in a newspaper of
general circulation in the country where
the defendant may be found and by
serving a copy of the summons and the
court order by-registered mail at the last
known address of the defendant;
c) By facsimile or any recognized
electronic means that could generate
proof of service; or
d) By such other means as the court may
in its discretion direct."
This rule shall take effect fifteen (15) days
after publication in a newspaper of general
circulation in the Philippines.
Kana man gud mga foreign corporation. Inig mag
negosyo na sila dinhi sa ato, they are required by
law to designate an agent, unya mu register pa
pud na sila dinhi sa atong gobyerno. Example
Banks. Must reigstere in the BSP, if Insurnce with
the Insurance Commission, Other corporation sa
SEC. nya isa sa requirement is to designate an
agent. While on the conduct of their business
maka sugot sila ug kaso, e-kiha ba kana sila. Ang
summons adto pwede ipadala sa ilang agent.
Mao na ang purpose mao nang kinanhangaln sila
nay Agents. Pero kung wala silay agents pwede
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ra adto e serve sa government agencies
concerned, either sa BSP kung Banko etc.
What if =it is not registered? The he cannot sue.
Generally he cannot sue kay kato rmana ang na
register ang maka kiha.
This amendment provides for other means of
serving summons. So in this amendment pwede
na personal service to be coursed through in the
appropriate country in the other country with the
assistance of the DFA. So pwede na nga nay
giatwag nga Extraterritorial service.
Kani para ni siya sa foreign corporation,
foreign private juridical entity.
Global Business holdings inc. vs. Surecomp
Software B.V.
GR. 173463
October 13, 2010
As a rule an unlicensed foreign doing business in
the Philippines cannot sue. He cannot seek
remedy in our courts. The reason is that the
corporationhas a legal status only where he is
organized.A corporation has a legal status only
within the state or territory in which it was
organized. For this reason, a corporation
organized in another country has no personality
to file suits in the Philippines. In order to subject
a foreign corporation doing business in the
country to the jurisdiction of our courts, it must
acquire a license from the Securities and
Exchange Commission and appoint an agent for
service of process. Without such license, it
cannot institute a suit in the Philippines.
The exception to this rule is the doctrine of
estoppel. Global is estopped from challenging
Surecomp’s capacity to sue.
A foreign corporation doing business in the
Philippines without license may sue in Philippine
courts a Filipino citizen or a Philippine entity that
had contracted with and benefited from it.A party
is estopped from challenging the personality of a
corporation after having acknowledged the same
by entering into a contract with it.The principle is
applied to prevent a person contracting with a
foreign corporation from later taking advantage
of its noncompliance with the statutes, chiefly in
cases where such person has received the
benefits of the contract.
Sec. 13. Service upon public corporations.
When the defendant is the Republic of the
Philippines, service may be effected on the
Solicitor General; in case of a province, city
or municipality, or like public corporations,
service may be effected on its executive
head, or on such other officer or officers as
the law or the court may direct.
If ang imong e kiha is any office of the national
governmant or any agency of the National
government, ang imong ipa receive sa summons
ang SolGen. Kay ang Sol Gen mao ang Abogado
sa Gobyerno.
Illustration:
Plaintiff filed a case against the Bureau of
telecommunication. The summons was received
by one of the employees of the Bureau of
telecommunication. Was there proper service of
summons? NO. because when the defendant is a
government agency the person who is authorized
to receive the summons is only the Solicitor
General. Service to other officers is invalid.
What about if it is an LGU? Then the executive
head or officer of that place. Ex City mayor,
Governor, or the City attorney or provincial
attorney.
Sec. 14. Service upon defendant whose
identity or whereabouts are unknown.
In any action where the defendant is
designated as an unknown owner, or the
like, or whenever his whereabouts are
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unknown and cannot be ascertained by
diligent inquiry, service may, by leave of
court, be effected upon him by publication
in a newspaper of general circulation and in
such places and for such time as the court
may order.
This talk of 2 instances:
1. He is known but his whereabouts are
unknown
2. His identity is unknown.
How are you going to serve summons when the
defendant not residing in the Philippines, cannot
be found kay nag TNT. Unsaon man nimo pag
serve sa summons? Summons by publication
with prior leave of court.
Illustration: Dunay iro, naka paak, nag suroy
suroy, na pa-akan ka, wala ka kahibalo kinsay tag
iya. Filelan nimo. Pwede ba? Pwede. Unknown
owner. Unsaon man nimopag serve ug summons
nga unknown man? It could be served through
publication. “WHOEVER IS THE OWNER OF THIS
DOG etc sa newpaper”
In Sumons by publication sa newpaper, e print
ang entire complaint. Nya gibutang “you are
hereby required to answer the complaint within
60 days from oublication etc..” in a newpaper of
general circulation and in such places as the
court may order.
It is not necessary that it must be a national
circulation as long as it is a newspapaer of
general circulation.
You cannot choose kay e raffle man na. Either
Sunstar, CDN etc.
In what kind of cases should this be available? IN
ANY CASE. Action in rem, quasi in rem or in
personam but take note the defendant must
be residing in the Philippines. He could be a
foreigner residing in the Phils or a Filipino
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
resident. The defendant must be residing in
the Philippines!
When summons is served by publication it must
be coupled with service of summons by
registered mail. This is called COMPLIMENTARY
SERVICE OF SUMMONS. The purpose of
serving summons by registered mail is for
compliance of due process.
Sec. 15. Extraterritorial service.
When the defendant does not reside and is
not found in the Philippines, and the action
affects the personal status of the plaintiff
or relates to, or the subject of which is,
property within the Philippines, in which
the defendant has or claims a lien or
interest, actual or contingent, or in which
the relief demanded consists, wholly or in
part, in excluding the defendant from any
interest therein, or the property of the
defendant has been attached within the
Philippines, service may, by leave of court,
be effected out of the Philippines by
personal service as under section 6; or by
publication in a newspaper of general
circulation in such places and for such time
as the court may order, in which case a
copy of the summons and order of the court
shall be sent by registered mail to the last
known address of the defendant, or in any
other manner the court may deem
sufficient. Any order granting such leave
shall specify a reasonable time, which shall
not be less than sixty (60) days after
notice, within which the defendant must
answer.
The defendant here is not within our territory, the
defendant here is residing on another country. He
is not within our jurisdiction. Totally foreigner jud
ni siya, mi ari ni siya sa Pilipinas as tourist.
Illustration: Korean student, nag eskwela lang
English diri. Unya nka kita siya ug uyab diri na
dala sa iyang sinayawan nga Gangnam Style
unya nka Hit and Run, Naka buntis. And so the
child now is filing a case for cumplosory
recognition. Kay para maka inherit siya as an
illegitimate child. Unya dato raba to ang iyang
biological father didto sa Korea, tag-iya ug
Samsun. Su kinahanglan siya ma recognize, so
mi file siya ug compulsory recognition and
Support. The problem is how are you gonna serve
summons. This is where sec 15 comes in. Extra
territorial Service of Summons.
How many ways of serving summons? There
are three ways of serving summons.
1. by serving summons outside of the
Philippines by personal service.
 Imo ipa serve ug summons didto. Kinsa
man ang papalihugon sa korte? Pina agi
sa Philippine embassy. Pwede ra ang
korte mu request sa Philippine embassy
na ipa serve ni ang summons didto sa
defendant.
2. by publication of the summons, pareha
pud sa Section 14.
 Ang problima, asa man nimo e publish
ang summons ari ba sa newspaper sa
Pilipinas or newspaper didto sa Korea?
Nahitabo mana diri gikiha. Taga Los
Angeles. Pilipino siya pero American
citizen na. Diri man gi publish. Ingon siya
unsaon man nako pag basa ana na tua
man ko sa America, unsaon mana pag
abot didto? Wala paman internet sauna.
Karon pwede na kay naa naman internet.
 So asa man nimo e publish? Take note
that Section 14 does not specify that the
newspaper should be in that foreign
country. In other words, it could be
published in the newspaper here in our
country.
 Mu ingon gani ta publication, unsa gani
to ang kaluha?
Page | 67

“by publication in a newspaper of general
circulation in such places and for such
time as the court may order, in which
case a copy of the summons and
order of the court shall be sent by
registered mail to the last known
address of the defendant.”
o So duna na siyay kaluha. Unsay legal term
ana? Complimentary service of
summons by registered mail. The purpose
is not to acquire jurisdiction over the
person of the defendant, but to comply due
process.
3. Any other means [manner] the court may
deem sufficient.
 Therefore, pwede personal service didto
sa foreign country, pwede sad service by
publication, or in any other means.
 Unsa maning “in any other means the
court may deem sufficient”? there was
that case involving recognition. Ang
iyang papa tua sa abroad. Unya kay
pobre man kaayo siya mao na magpa
recognize siya kay basin nalang maka
pugos siya na mangayo ug support. Or
inig kamatay sa iyang papa basin maka
inherit siya. Wa lage siyay kwarta, gi
unsa man niya pag kiha? He filed a case
for recognition as an indigent litigant.
Ang problima kay iyang papa tua sa
gawas. Unsaon man pag serve sa
summons? Dili siya maka personal
service kay wala siyay kwarta. Dili pud
siya pwede mag publish kay wala siyay
kwarta. Kahibaw mo unsay gi buhat sa
trial court? Gi sugo sa trial court na
padad an lang ug summons by registered
mail. The defendant questioned it and te
case reached Supreme Court. Was the
service of summons proper?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
o In the case of Cariaga Junior vs. Malaya
143 SCRA 441, YES it was proper. Under
the rules of court, (timan-e na dili ni siya
applicable sa tanan defendant) only when
the defendant is not a resident of the
Philippines and is not found in the
Philippines, in any manner the court may
deem sufficient. This is also not applicable
to all actions, unlike Section 14. This is only
applicable when the action affects the
personal status of the plaintiff… For
example:
 1. Recognition
 2. Annulment of marriage
…or relates to or the subject of which is
property within the Philippines which the
defendant has or claims a lien or interest,
actual or contingent.
This is a Quasi in rem. An action which is
filed or directed against a particular person
but the case seeks the sale or disposition of
the defendant’s property or to the subject
the same to a lien or encumbrance. Unsa
mana clase sa kaso kanang nag invoke sa
status of the plaintiff or defendant? That is
an action In rem.
Unsay examples aning actions Quasi in rem?
1. Partition
2. Quieting of title
3. Judicial foreclosure
…or in which the relief demanded consists
wholly or in part in excluding the defendant
from any interest therein, or the property of
the defendant has been attached within the
Philippines. So those are the cases when
Section 15 will apply.
To summarize, Section 15 will only apply when:
1. The defendant is not residing in the Philippines
and is not found in the Philippines.
2. Actions in rem and quasi in rem.
Section 15 will not apply to purely actions
in personam.
What is an action in personam? wherein
the decision is binding only upon the parties
involve. Example of action in personam:
Collection of sum of money.
Remember that the jurisdiction of the
court over the defendant is required only when
the action is action in personam. In actions in
rem and quasi in rem, jurisdiction over the
person of the defendant is not required for the
court to acquire jurisdiction over the case
because jurisdiction over the res would be
sufficient. If jurisdiction over the person is not
important in actions in rem and quasi in rem,
ngano man e publish paman niya ang summons?
Unsa ang purpose sa pag publish sa summons?
Unya padad an pa nimo ug registered mail. The
purpose is not to acquire jurisdiction over the
person of the defendant, but to comply due
process. Meaning, if there is no publication of the
summons, ang kaso ana ma dismiss not because
the court does not have jurisdiction, pero ma
dismiss ang kaso or void ang decision not
because the court does not have jurisdiction over
the person of the defendant, but because there
was denial of due process for failure to comply
the requirement of the rules.
Problem: Foreigner (not resident of the
Philippines) who is just a tourist or student ra diri.
Nang huwam ug kwarta sa iyang amigo. Na
apeke siya ug kwarta. Ingon siya, pwede ko maka
huwam nimo ug P100,000 kay wala paman ko
padad e sa ako papa. Imo gipa huwam. Ni puno
pa gyud. Another P200,000. The problem is when
it became due, naka saad siya ug 2 months,
nowhere to be found naman siya. So ni file ka ug
kaso. Tua na siya sa korea. Will the case
prosper?
NO. Because the case does not involve
the personal status of the plaintiff, the case does
not affect or relate or the subject of which is not
a property within the Philippines where the
Page | 68

defendant has a claim or lien. It does not also
seek the relief which seeks to exclude the
defendant from any interest in the property.
There is also no property attached. In other
words, the action is purely action in personam.
So the case will not prosper, and it shall be
dismissed because there is no way that the court
can acquire jurisdiction over the defendant.
What is your remedy? Usa ra gyud imong
remedy ana. Kung nag bilin siya ug either
personal or real property here in the Philippines.
Kung duna siyay mountain bike nahabilin didto sa
iya court, you ask the court to attach the
mountain bike. The case now will be transferred
from purely action in personam to action quasi in
rem, because there is now a property attached.
So that is what you are going to do in order for
the court to acquire jurisdiction over the case or
over the person of the defendant.
After attachment, then you will now pray
for the publication of the summons, or any of the
means mentioned in Section 15. Ang pinaka
gamit sa Section 15 kay kanang publication.
Look at these cases:
1. Sahagun vs. CA 198 SCRA – This is about
service of summons. This is about extraterritorial
service.
2. Valmonte vs. CA 252 SCRA 92 – Checkpoint.
Iya ning asawa.
3. Cariaga vs. Malaya – citation above.
4. Citizens Insurance Surety vs. Melencio Herrera
38 SCRA 369
5. Santos Jr. vs. PNOC Exploration Corporation,
Sept. 23, 2008
Please read all those cases. Those are all about
service of summons under Section 14 and 15.
***
I would like to repeat. Section 14 is
applicable to any case. But take note that the
defendant is a resident in the Philippines, but his
identity is unknown or his whereabouts is
unknown.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
In the book of Regalado read the case
The Dial Corp vs. Soriano, Sahagun vs. CA,
Asiavest Limited vs. CA.
Sec. 16. Residents temporarily out of the
Philippines. – When any action is
commenced against a defendant who
ordinarily resides within the Philippines,
but who is temporarily out of it, service
may, by leave of court, be also effected out
of the Philippines, as under the preceding
section.
Section 16, this is about serving of
summons when the resident is temporarily out of
the Philippines. He is residing in the Philippines
but in the meantime he cannot be found in the
Philippines because he is out of country.
Example, tua pa sa Rome kay ni attend sa
canonization ni San Pedro. Pero wala pa gyud ni
balik. Wala pud nahibaw an kung kanus a ma
balik kay nag suroy2x paman naabot ug Europe.
So unsaon mana pag send sa summons? Read
Section 16.
Meaning to say, you can avail of those
modes of serving summons under Section 15.
In the case of Montefalcon vs.
Vasquez, June 17, 2008, substituted service is
the primary mode of service of summons to
residents temporarily out of the country. So
pwede ra substituted service of summons.
Sec. 17. Leave of court. – Any application to
the court under this Rule for leave to effect
service in any manner for which leave of
court is necessary shall be made by motion
in writing, supported by affidavit of the
plaintiff or some person on his behalf,
setting forth the grounds for the
application.
So if you want to avail service of
summons by publication, you have to file a
motion. You want to serve summons outside the
country, you have to file a motion.
Naay kaso diha sa kang Regalado basin
ma mislead mo. Pantaleon vs. Asuncion, that
is already obsolete. Because at present, under
Section 14 Rule 14, when the defendant cannot
be found in the Philippines but he is a resident of
the Philippines, service of summons could be
done by publication.
Sec. 18. Proof of service. – The proof of
service of a summons shall be made in
writing by the server and shall set forth the
manner, place and date of service; shall
specify any papers which have been served
with the process and the name of the
person who received the same; and shall be
sworn to when made by a person other than
a sheriff or his deputy.
We have discussed this already. The
officer serving the summons is required by the
rules to make a RETURN, the term is return. But
to make you understand better we call it report.
In his return or report, he should state who or to
whom the summons was served, meaning who
received it, the date, and the manner by which it
was served, especially when it is substituted.
Because when it is substituted, there must be
justifiable reasons to be stated in the return or
report why substituted service of summons was
resorted. If there is no such explanation, and the
efforts exerted, the service of summons is
considered invalid.
What about in service of summons by
publication? Then the publisher of the newspaper
who published the summons is required to
execute an affidavit.
What about the complimentary service of
summons? That is service by registered mail
whenever service of summons by publication is
allowed. Katong service of summons by
publication, ang mu execute sa affidavit ang
katong publisher, ang editor, kinsa mansad ang
mu execute ug affidavit bahin sa complimentary
service of summons? Aw, katong ni mail.
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Sec. 19. Proof of service by publication. – If
the service has been made by publication,
service may be proved by the affidavit of
the printer, his foreman or principal clerk,
or of the editor, business or advertising
manager, to which affidavit a copy of the
publication shall be attached, and by an
affidavit showing the deposit of a copy of
the summons and order for publication in
the post office, postage prepaid, directed to
the defendant by registered mail to his last
known address.
Sec. 20. Voluntary appearance. - The
defendant's voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the
defendant shall not be deemed a voluntary
appearance.
Voluntary appearance, we have
discussed this already. Service of summons
especially in an action in personam, this is a way
of acquiring jurisdiction over the person of the
defendant.
Service of summons or summons has two
functions:
1. for the court to acquire jurisdiction
over the person of the defendant.
2. to notify the defendant that he has a
pending case.
Under Section 20, the voluntary
appearance of the defendant is equivalent to
service of summons. Voluntary appearance is not
limited only to personal appearance in court. It
also includes filing motions, such as motions for
extension of time to file answer, motion for bill of
particulars, or filing answer. So those are
considered as voluntary appearance.
What about if he filed a motion? But the
motion is a motion to dismiss on the ground of
lack of jurisdiction over his person because there
was improper service of summons? Could it be
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
considered as voluntary appearance? NO. That
is the only exception. So if the defendant was
not served with summons, or if he was served
with summons but improper, he can file a motion
on that ground and the filing of that motion will
not be considered as voluntary appearance,
provided that the ground is lack of jurisdiction
over his person. And if ever he includes other
grounds aside from improper service of
summons, the same would still be allowed.
Pwede ra gihapon. The motion will not be
considered by voluntary appearance.
Lahi sa criminal case kay sa criminal
case, mu file gani ka ug motion to quash on the
ground of lack of jurisdiction over your person
because of improper issuance of warrant of arrest
or illegal arrest, you should file a motion to quash
on that ground alone. Because if you include
other grounds, example you include prescription,
then that ground to question the jurisdiction of
the court over your person is waived. Lahi diri sa
civil procedure. Lahi diri sa criminal cases. Kay
diri sa civil cases, bisan ug sagolan pa nimo ug
lain grounds, your motion to dismiss on the
ground of lack of jurisdiction over the person
cannot be considered as voluntary appearance,
or a waiver of your right to question the
jurisdiction of the court over your person.
Those are all about service of summons.
Rule 14 is very very important. This is one of the
rules that you should master.
RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Adto ta balik sa Rule 13. U-Turn ta
kadiyot. Ato mani gi sal-angan. Katong Rule 14
ato tong gi una kay Rule 14 is about service of
summons. Kana man gud inig file nimo sa kaso,
ang sunod action ana summons dayon. Now,
after service of summons mao nana siya. Mag
pusot2x nana ang mga motions. Sagad mu file sa
motions kay ang defendant man. Ang pirmyero e
file kay motion for extension of time to file
answer. Human ana, motion to dismiss.
Example, if mu file siya ug answer,
unsaon man pag serve sa iyang answer? Pareha
bas a pag serve sa summons? Rule 13 tells us
how to serve pleadings OTHER THAN complaint,
summons, pleadings and other papers, OTHER
THAN summons. Katong summons ang lisod2x.
Strict kaayo ang rules. Pero kani dili kaayo. Strict
pud but if you compare it with summons delikado
gyud ang summons kay mu apektar manto sa
jurisdiction sa court.
Sa ato pa, kani atong hisgutan karon kay
kato ning mga pleadings OTHER THAN the
complaint. Kay katong sa complaint mao naman
to ang sa summons. Ang atong hisgutan diri
unsaon pag serve sa motions, unsaon pag serve
sa judgment or order sa court. Naa ni siya sa Rule
13. Kanus a ni siya mahitabo? After serving
summons. Diba angay gyud unahon ang Rule 14?
Sec 1. Coverage. - This Rule shall govern
the filing of all pleadings and other papers,
as well as the service thereof, except those
for which a different mode of service is
prescribed.
The word “pleadings” here refer to
Answer, Reply, etcetera.
Sec. 2. Filing and service, defined. - Filing is
the act of presenting the pleading or other
paper to the clerk of court.
Service is the act of providing a
party with a copy of the pleading or paper
concerned. If any party has appeared by
counsel, service upon him shall be made
upon his counsel or one of them, unless
service upon the party himself is ordered
by the court. Where one counsel appears
for several parties, he shall only be entitled
to one copy of any paper served upon him
by the opposite side.
Page | 70

What do you mean by “filing”? How does
it differ from “service”? When you say filing, you
are not talking about the court. How are you
going to give your pleading or motion to the
court. So filing is the act of presenting the
pleading or other paper to the clerk of court.
Then what about service? Mu ingon gani ka ug
service ang kato ning sa parties. Service is the
act of providing the party with the copy of the
pleading or paper concerned.
When you say service, you refer it to the
other party.
Example, mu file ka ug motion sa korte,
motion for extension or motion to dismiss. Kana
imong motion gi file sa korte dili na dawaton
kung wala kay proof in your motion na gitagaan
nimo ug copy ang pikas. Kanang pag hatag nimo
ug copy sa imong motion didto sa pikas mao na
ang gitawag na service. Kanang pag file nimo sa
imong motion didto sa court, mao na ang
gitawag na filing. Dili ka mu ingon ug service.
When we say pleading you EXCLUDE
complaint. Because when you file a complaint
you do not serve the other party. It is the job of
the court, upon the issuance of summons. The
pleading that we are talking about is a pleading
OTHER THAN the complaint.
When you serve a pleading to the other
party, you serve a copy of the pleading to that
party through his lawyer. Example, you are the
defendant unya nu file ka ug Answer, kanang
copya sa imong Answer kinahanglan hatagan
nimo ang pikas, ang plaintiff. It should be through
his counsel. Dili nimo e deritso niya ug padala.
For example, C vs. D. Si D ni file ug
Answer. Kinahanglan ang copy sa iyang answer
adto niya ipadala sa lawyer ni C. Kung e deritso
niya ni C, that service of pleading is invalid. And
because that service is invalid he could be
declared in default. Because under Section 2, if a
party is represented by a counsel, the copy of the
motion or of the pleading should be served on
the counsel, not on the party. Ngano man?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Tungod ka yang client wala kahibaw kung unsa
na. look at that case of Inocando vs. Inocando
in your book. Daghan kaayo na siya. Notes
number 2.
Sec.3. Manner of filing.- The filing of
pleadings, appearances, motions, notices,
orders, judgments and all other papers
shall be made by presenting the original
copies thereof, plainly indicated as such,
personally to the clerk of court or by
sending them by registered mail. In the
first case, the clerk of court shall endorse
on the pleading the date and hour of filing.
In the second case, the date of the mailing
of motions, pleadings, or any other papers
or payments or deposits, as shown by the
post office stamp on the envelope or the
registry receipt, shall be considered as the
date of their filing, payment, or deposit in
court. The envelope shall be attached to
the record of the case.
Unsa gani nang filing? Litigant to court.
Filing could be made personal, or by
registered mail, or by ordinary mail. So filing by
personal, meaning you bring your motion or
pleading to the clerk of court. By presenting your
pleading to the clerk of court personally. Unsa
man imong ihatag sa court? Ang original. Dili
nimo hatagan ug duplicate original. Kato gyung
original.
What about if you cannot file it
personally? Example, the defendant is from the
Mindanao. Gi serve siya ug summons didto sa
Mindanao. Gasto kaayo if mu anhi pa siya diri.
Unsa man ang other mode of filing? By registered
mail. Pwede na iya ra e mail didto. Ngano man
diay kung ordinary mail ra? Or e private courier
sa LBC. Take note that when it is a registered
mail, the date of mailing is considered the date of
filing. When it is other mode of mailing (ordinary
mail or private courier) the date of actual receipt
of court will be considered as the actual filing.
Sa ato pa kung last day karon sa pag file,
unya imo gi mail registered naa ka didto sa
Mindanao, aw that is the date of filing. Bisan ug
wala pa na cya nadawat. Bisan ug sunod bulan
pana maabot diri sa siyudad dili na siya late. And
if it is by registered mail, it is required that the
envelope should be attached to the record.
Ngano man? Obvious! Because the date of
mailing is the date of filing. Kung duna unyay lalis
kung na file ba na on time or wala, then
importante to ang envelope.
Sec. 4. Papers required to be filed and
served.- Every judgment, resolution, order,
pleading subsequent to the complaint,
written motion, notice, appearance,
demand, offer of judgment or similar
papers shall be filed with the court, and
served upon the parties affected.
When we say judgment, this now comes
from the court.
Kana ba diay judgment e file pa diay na
sa court? YES! Example, ako nag buhat ko ug
decision, kana akong decision ako na patatakan
sa clerk of court. Kanang pag received sa clerk of
court that is very important because it is
considered as the promulgation of judgment. And
that is very important, the date of promulgation.
After that, padad an ang mga parties.
So judgment, resolution, order, so with
the pleading subsequent to the complaint,
written motion, etcetera. Sa dili paka mu file
didto sa korte imo usa e furnish ang mga parties.
So reverse. Kung gikan sa korte, unahon usa ang
clerk of court usa ang parties. Kung mu file ka sa
court, unahon ang adverse party usa ka mu file
sa court. Because the court will not accept your
motion without proof that you have furnished a
copy to the adverse party.
Unsa may proof? Either the signature of
the counsel of the adverse party or the registry
receipt.
Sec. 5. Modes of service.- Service of
pleadings, motions, notices, orders,
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judgments and other papers shall be made
either personally or by mail.
Sec. 6. Personal service.- Service of the
papers may be made by delivering
personally a copy to the party or his
counsel, or by leaving it in his office with
his clerk or with a person having charge
thereof. If no person is found in his office,
or his office is not known, or he has no
office, then by leaving the copy, between
the hours of eight in the morning and six in
the evening, at the party's or counsel's
residence, if known, with a person of
sufficient age and discretion then residing
therein.
Timan-e ha, lahi ang SERVICE IN PERSON
ug PERSONAL SERVICE. When you say service in
person, summons. Unya ang service in person,
ang defendant gyud mismo maoy padawaton. Dili
pwede ang secretary. Pero diri sa Section 6,
personal service, pwede ra sa secretary.
So that is why your office address or
residence is very important. When you file a
complaint, the address of the counsel should be
specifically stated. It should not be a P.O. Box.
Look at Section 3, Rule 7.
Personal mode of service is the preferred
mode of service. How is personal service done?
Lahi ni siya sa service in person. Service of the
papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it
in his office... So (3) tulo diri. It could be delivered
to the counsel or a party, or a copy of the motion
is left in the office of the lawyer with his clerk or
with a person having charge thereof. And if he
has no office, or if nobody is found in his office,
the copy will be served at the party’s or counsel’s
residence. So with the decision, personal service
is the preferred mode of service.
In PLDT vs. NLRC 128 SCRA 402, the
office of the lawyer is located at the 9 th floor of
the building. Didto gi bilin sa process server or
sheriff sa security guard. Take note ang office tua
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sa 9th floor. Ang problima ani kay decision to cya.
When the document is a decision that is very
important. Why? Because the date of receipt of
the decision is the reckoning date for the
counting of the 15th day period to appeal. Wala
naka file ug appeal on time ang counsel.
Question: Was there a proper service of the
decision upon the counsel?
NO. Because the copy of the decision
should be served at the office of the counsel at
the 9th floor. There was improper service of the
decision. PLDT vs. NLRC is in your book. I think
page 227.
Sec. 7. Service by mail.- Service by
registered mail shall be made by depositing
the copy in the post office, in a sealed
envelope, plainly addressed to the party or
his counsel at his office, if known,
otherwise at his residence, if known, with
postage fully pre-paid, and with
instructions to the postmaster to return the
mail to the sender after ten (l0) days if
undelivered. If no registry service is
available in the locality of either the sender
or the addressee, service may be done by
ordinary mail.
When we say mail, it should be by
registered mail.
Sec. 8. Substituted service.- If service of
pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the office
and place of residence of the party or his
counsel being unknown, service may be
made by delivering the copy to the clerk of
court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery.
Aside from personal service and service
by mail there is also the so-called substituted
service. But the concept of substituted service is
different from the concept of substituted service
in summons. Look at how substituted service is
done as far as other pleadings and motions are
concerned.
So if dili nimo ma serve didto sa iyang
office or sa residence kay walay address, now the
service could be made by substituted service.
How is it done? By delivering or giving a copy to
the clerk of court, with proof of failure of both
personal service and service by mail. Murag kani
siya ni gawas ni siya karon na bar. I have not
come across this kind of service. Sagad gyud
kung dili man personal service, service by mail.
Sec. 9. Service of judgments, final orders or
resolutions.- Judgments, final orders or
resolutions shall be served either
personally or by registered mail. When a
party summoned by publication has failed
to appear in the action, judgments, final
orders or resolutions against him shall be
served upon him also by publication at the
expense of the prevailing party.
Service of judgments, final orders, or
resolutions of the court. This is from the court.
Judgments, final orders or resolutions shall be
served either personally or by registered mail.
Earlier, we talked about summons by
publication. What will happen if there is already a
decision? The decision will be serve by
publication.
Double mo ug gasto. Duha moy
gastohan…mag serve pa ka sa summons…sa
complaint, publish, ug duna nay decision ipa
publish na sad nimo. Unsa may ipiblish nimo?
Ang dicision.
Ang Rule wala nag sulti nga kung ang
entire dicision ba or kadto rang dispositive
portion. But according to Regalado, it would be
still be valid if only the dispositive portion or the
falio of the decision be published.
Unsa man unsa man nang dispositive
portion? Kadto bitaw dunay “WHEREFORE
judgment is hereby rendered ordering the
defendant of etc.” Mao nay gitawag ug
dispositive portion. Pero pwede pod kung ang
entire dicision.
Page | 72

Sec. 10: COMPLETENESS OF SERVICE
Section 10. Completeness of service. —
Personal service is complete upon actual
delivery. Service by ordinary mail is
complete upon the expiration of ten (10)
days after mailing, unless the court
otherwise provides. Service by registered
mail is complete upon actual receipt by the
addressee, or after five (5) days from the
date he received the first notice of the
postmaster, whichever date is earlier.
Q: When is personal service
complete?
A: Personal service is complete
upon actual delivery.
Q: When is service by ordinary mail
is complete?
A: Service by ordinary mail is
complete upon expiration or 10 days.
Q: When service by registered mail
is complete?
A: Service by registered mail is
complete upon receipt of the addressee or after 5
days from the date he receive the first notice of
the post master whichever date is earlier.
Kanang registered mail kasagaran ana
ang post master mo padala lang ug notice didto
sa addressee. Unya ang addressee mao jud mo
adto ditto sa post office. Dili na daladala-on sa
postman unlike sa ordinary mail. Unya
pananglitan ug dili na nimo e-claim kay naghuna
huna na ka nga mao lagi toy decision, well it
would be useless because service is considered
complete after 5 days from first notice. Kuhaon ni
ug sa dili, complete na na…deemed served.
Now, in circumstances wherein the
counsel will change his address or will transfer to
a new office, it is his duty to inform the Court.
Because if it happens that the processes or
orders or judgment of the court are sent to his
old address and therefore the lawyer wasn’t able
to accept it, then that will considered as served.
And negligence of the lawyer will be considered
as the negligence of the client. Or na return to
sender na siya.
So, counsel must inform the court of his
new address otherwise the service to his old
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
address is still valid. Ville Transport Services
vs. CA 193 SCRA 25.
Sec. 11: PRIORITIES IN MODES OF SERVICE
AND FILING
Section 11. Priorities in modes of service
and filing. — Whenever practicable, the
service and filing of pleadings and other
papers shall be done personally. Except
with respect to papers emanating from the
court, a resort to other modes must be
accompanied by a written explanation why
the service or filing was not done
personally. A violation of this Rule may be
cause to consider the paper as not filed.
We discussed it already that the priority
mode of service is personal service. So whenever
practicable, service and filing of pleadings and
other papers shall be done personally except
papers emanating from the court.
Timan-e ni. Sec. 11 is important. If ever
personal service is not made or not done for
whatever reason for any justifiable cause, there
must be an explanation in the motion. At the
bottom…last or in the pleading that is being
serve why is it personal service is not resorted to.
There MUST be an explanation.
Q: What will happen if you furnish
the other party by registered mail but you did not
add an explanation? You did not write an
expalination whay it is donby registered mail.
A: your motion or your pleading
shall be considered as not filed.
Look at the last sentence. A violation of
this Rule may be cause to consider the paper as
not filed. Simple ra kaayo. Saato pa kung naa kay
answer unya imong gi send by mail ang copy sa
pikas pero walay explanation nganong imong gi
send by mail you are considered as not have filed
any answer. And therefore what will happen
because you have not filed any answer although
you have filed? You can be considered in default.
So, ing-ana ka importante.
What could be the justifiable reasons for
resorting to registered mail (examples)?
Kasagaran sa mga abogado mo ingon nga:
 Due to distance service to the adverse
party is done through registered mail.
 Due to lack of messenger service is done
by registered mail.
Ing-ana ra. Simple. Unsa ra ka sentence.
Pero kung kanang usa ka sentence dili jud na
nimo masuwat…imo rang i-mail didto, ang
imohang motion will be considered as not filed.
Ing-ana ra ka simple. Then sa kadaghang simple
nga imohang tan-awonon.
Unya kinsa toy furnish-an didto sa pikas?
Ang Counsel gyud. Kana kung duna siyay
counsel. Pero sagad jud nay counsel. Tagsa ra
nang maghinabog nga dili mo kuha ug abogado.
Sec. 12: PROOF OF FILING
Section 12. Proof of filing. — The filing of
a pleading or paper shall be proved by its
existence in the record of the case. If it is
not in the record, but is claimed to have
been filed personally, the filing shall be
proved by the written or stamped
acknowledgment of its filing by the clerk of
court on a copy of the same; if filed by
registered mail, by the registry receipt and
by the affidavit of the person who did the
mailing, containing a full statement of the
date and place of depositing the mail in the
post office in a sealed envelope addressed
to the court, with postage fully prepaid,
and with instructions to the postmaster to
return the mail to the sender after ten (10)
days if not delivered.
Unsaon man nimo pag prove nga naka
file na ka ana? So for example, the plaintiff now
has file a motion for execution or the plaintiff now
filed a motion to declared you in default because
you did not file an answer. Then you will argue:
“oh we filed an answer”. Where is your proof that
you have filed an answer? Then ipakita tong
proweba nimo nga gitatakan sa court. “received”
naa man na usahay sa korte.
Page | 73

Tungod sa kadaghan sa mga kaso, inig
file nimo ang imong motion mawani. Nana labi na
kung daghan kaayo ang kaso. Linibo ang kaso.
Inig file sa motion kay daghan mang nang file
ngadto labi na nang Friday sa hapon kay usa sad
ning mga pulis pod inig hapon usa pa pod nila i-
file ang mga kaso. So mag pusot2x didto ang
mga kaso. Usahay mawani.
Unsa may proweba nimo nga naka file
ka? Then you show your copy. Tatak
oh…”received”.
What about if it is done by registered
mail? Then your registry receipt and affidavit of
the person who mailed.
Kita diri sa lower court (RTC and MTC) dili
kaayo strikto anang affidavit. Basta magpakita
lang ka anang registry receipt ok na. pero didto
sa CA us sa SC, strikto kaayo na sila ang affidavit.
Kinsay kita ug registry receipt? Gamay ra
kaayo na nga resibo gud. Resibo ra gud na nga
naka mail ka, nga kinsay addressee unya pitsa.
Unya mao na siyay imong ipatapot didto sa
imong motion. Mao nay proof nimo nga fifurnish-
an nimo ug copy ang pikas. Without this very
small slip, your motion will not be accepted. Unya
unsa may naa diri? Ang addresse u gang pitsa sa
pag mail. Kay ang pitsa sa pag mail mao nay
proof of filing.
Sec. 13: PROOF OF SERVICE
Section 13. Proof of Service. — Proof of
personal service shall consist of a written
admission of the party served, or the
official return of the server, or the affidavit
of the party serving, containing a full
statement of the date, place and manner of
service. If the service is by ordinary mail,
proof thereof shall consist of an affidavit of
the person mailing of facts showing
compliance with section 7 of this Rule. If
service is made by registered mail, proof
shall be made by such affidavit and the
registry receipt issued by the mailing office.
The registry return card shall be filed
immediately upon its receipt by the sender,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
or in lieu thereof the unclaimed letter
together with the certified or sworn copy of
the notice given by the postmaster to the
addressee.
When we say service, adto na ni sa pikas
party. Sa proof of filing – court; service – adverse
party.
So what is your proof that you have
furnished a copy of your motion, a copy of your
answer to the adverse party?
 If by personal service – the
signature of the person who
received. Either the counsel
himself or his secretary. That
would still be considered as
personal service as far as other
pleadings are concerned.
 If by registered mail – the registry
receipt and the affidavit of the
person who mailed. Mao nay
gitawag ug Affidavit of Mailing.
Usbon nako, diri sa lower court dili kaayo
strikto. Pero didto sa CA, mo file ka yg cerciorari
didto or petition for review they are very strict.
Kanang imong petition for review without ht e
affidavit of mailing…ang imo rang gipatapot didto
kadto rang registry receipt, that would be
dismissed. Mao man nay ilang trabaho didto.
Mangita man na sila ug unsay ilang ma-dismiss.
So ayaw jud tagai ug hinungdan nga ma dismiss.
Sec. 14: NOTICE OF LIS PENDENS
Section 14. Notice of lis pendens. — In an
action affecting the title or the right of
possession of real property, the plaintiff
and the defendant, when affirmative relief
is claimed in his answer, may record in the
office of the registry of deeds of the
province in which the property is situated
notice of the pendency of the action. Said
notice shall contain the names of the
parties and the object of the action or
defense, and a description of the property
in that province affected thereby. Only from
the time of filing such notice for record
shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to
have constructive notice of the pendency of
the action, and only of its pendency against
the parties designated by their real names.
Importate ni siya kung ikaw ang kihante
unya ang imong kiha nag involve ug yuta.
You must annotate at the back of the title
or at the back of the tax declaration that that
parcel of land is subject to litigation or subject to
a case. Mao nay gitawag ug Notice of lis
pendens.
Notice of lis pendens - it is simple a
request addressed to the Registry of Deeds to
annotate at the back of the title that that
particular lot is subject to a case.
Imong gi-attach sa imong request ang
imohang kaso of course also the case number.
For example, recovery of ownership…aw imo
nang ipa-attach didto.
Kanang Notice of lis pendens lahi na siya
sa Notice of adverse claims.
Notice of Adverse Claim that is before
the filing of the case. Pananglitan you are still in
the process of securing the necessary documents
to support your case. Gusto ka mo file ug kaso
pero nanguha pa ka ug mga document unya
nahadlok man ka nga ibaligya unya ug dali2x. so
unsa may imong buhaton? Mo file ka ug notice of
Adverse Claim. But notice of adverse claim is
only good for 30 days. It will automatically lapse
without the court order after the lapse of 30
days.
What does it mean? Meaning, within the
period of 30 days, you should file a case. Unya
inig human nimo ug file sa kaso, imo na siyang
sundan ug Notice of lis pendens. Kadtong Notice
of lis pendens mao na toy ___2:16:20__ hangtod
mahuman ang kaso. Kadtong notice of lis
pendens cannot be erased unless there is order
from the court.
When does the court will grant the order
to erase the annotation? After the termination of
the case.
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You might ask, why is the notice of lis
pendens is important? Because it will give notice
to the whole world that that percel of lot or that
property is subjected to litigation. Kung dili na
nimo siya ipa annotate, your case will not affect
other persons because notice of lis pendens is
notice to the whole world that this property is
subject to a case.
Sa ato pa, king mo palit ka ug yuta,
siguroa gyud ug tan-aw didto kadtong title nga
tua didto sa Register of Deeds. Tan-awon nimo
kung aduna bay annotation or encumbrance. Kay
kung naa nay anootation nga aduna nay pending
case, then inig palit nimo anang yuta nay
pakapin…apil ang kaso. Pwede man nimo paliton
kung adunay kaso but to a lower price because
you are taking a risk…coz you’ll be stepping on
the shoes of the seller.
Kung magpa annotate ka, no need of
court order. Just a letter request addressed to the
Registry of Deeds.
Pero ug magpa cancel ka, duna nay court
order. You have filed a motion.
RULE 15
Sec. 1 MOTION DEFINED
Section 1. Motion defined. — A motion is
an application for relief other than by a
pleading.
What is a Motion?
Motion - is an application for relief other
than by a pleading.
Sa ato pa kanang motion ug kanang
pleading lahi na siya. Although pareho na sila
kung mangayo ug relief or remedy, pero kanang
motion lahi kaysa sa pleading. Kanang pleading
usually adunay claim.
Pleading – is a written statement of a
party’s claim or defences.
Sec.2: MOTION MUST BE IN WRITINGS
Section 2. Motions must be in writings.
— All motions shall be in writing except
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
those made in open court or in the course
of a hearing or trial.
Generally, a motion must be in writing.
Aron ba mo mahal ang imong bayad.
Pero kung inato gud nga pagka istorya, request
ra gud na. mao nang motion. Actually request ra
man na pero ayaw…ug mo adto ka sa korte unya
mo file ka ug request for extension of time ah
kataw-an ka ana oi. Motion man na…motion for
extension of time.
But there are also motions that can be
made in open court and we call it Oral Motion.
Daghan kaayo ning kalse sa motion.
Basta tanang request nimo. Unsay mga
kinahanglan nimo you write it in the form of
motion. Usahay wala na gani ka kahibalo unsay i-
title ani…motion for extension of time, motion to
admit amended complaint. Usahay wala na ka
kabalo…”unsay e-title ani? Ahhh motion nalang.
Pareho anang affidavit, wala na man ka kabalo
unsay title ani? Ahh affidavit.
Sec.3: CONTENTS
Section 3. Contents. — A motion shall
state the relief sought to be obtained and
the grounds upon which it is based, and if
required by these Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers.
Q: Can you make motions in open
court?
A: YES. Especially those motions
that are not litigious. Kana bang dili kinahanglan
ug halawom nga study. Example, you want the
schedule of hearing to be cancelled.
Then a motion shall state the relief
sought to be obtained and the grounds upon
which it is based, and if required by these Rules
or necessary to prove facts alleged therein, shall
be accompanied by supporting affidavits and
other papers.
So, aduna kay request…aduna kay
motion then you accompanied your motion with
evidence. For example, you want to file a motion
to dismiss on the ground or res judicata then you
allege that there has been a decision decided in
another court involving the same issue and the
same parties. Then you attach (kay wala man
kabalo kanang korteha) a copy of the decision
and entry of judgement to show that there has
been a case and it has been decided and the
decision has already became final.
Sec.4: HEARING OF MOTION
Section 4. Hearing of motion. — Except
for motions which the court may act upon
without prejudicing the rights of the
adverse party, every written motion shall
be set for hearing by the applicant.
Every written motion required to be heard
and the notice of the hearing thereof shall
be served in such a manner as to ensure its
receipt by the other party at least three (3)
days before the date of hearing, unless the
court for good cause sets the hearing on
shorter notice.
Kani importante jud ni kaayo. Section 4
and section 5 very important!!!
A copy of your motion should be
furnished to the other party and aside from that,
it must contain a Notice of Hearing. Ako na ning
gisulti ninyo sa imaging meeting. Your motion
must contain an Notice of Hearing and aside
from that, a copy of such motion should be serve
to the other party.
So, except for motions which the court
may act upon without prejudicing the rights of
the adverse party, every written motion shall be
set for hearing by the applicant.
Ikaw ra gud. Ikaw ray magbuot kung
kanus-a nimo ipa heard gud…butang butangan ra
gud na nimo. Pero pananglitan karon ka mo file,
ang pitsa nimo ayaw ugma. Distasyahan jud na
nimo.
In motion you should observe the so
called 3 Day Notice Rule. You set the hearing at
least 3 days after a copy of your motion is
received by adverse party. Sa imong huna2x, ang
pikas maka receive sa imong motion next week…
mga one week gikan karon so 25. So, 25 niya ma
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receive sa imo ra nang huna2x/estimate ba. Then
the hearing should be at least 3 days after the
receipt. And usually, it should be a Friday ang
date sa imohang hearing.
Ang ubang abogado, general kaayo.
Simple ra kaayo. Ibutang ra didto: atty. so and so.
Plz take notice that the foregoing motion shall be
submitted before the court on (unsa nga pitsa)
with or without the appearance of the under
signed. Simple a gyud. Usa ra ka sentence. Pero
if wala nang usa ka sentence, your motion shall
be considered as just a mere scrap of paper.
Unsay tawag ana? Notice of hearing.
Every written motion required to be
heard and the notice of the hearing thereof shall
be served in such a manner as to ensure its
receipt by the other party at least three (3) days
before the date of hearing. Mao nay gitawag nga
3 day Notice Rule.
Meaning, 3 days it should be set for
hearing at least 3 days after receipt. So kung
imong gi personal service, so pananglitan ugma
ma receive so pwede karong Friday kay at least 3
days man. Ibutang nimo didto: pleace take notice
that the foregoing motion shall besubmitted to
the court for its consideration on (unsang pitsaha
karong Friday) at 2:00 O’clock in the afternoon
with or without the undersigned counsel.
Then, that is for litigious motion. Unsa
man nang litigious motion?
Litigious Motion or Litigated Motion
– is a motion where if the remedy that you are
asking if granted will prejudice the right of the
adverse party.
Pananglitan ug mo file ka ug motion to
dismiss. You are now the defendant who files a
motion to dismiss. Is your motion to dismiss a
litigious motion? YES, because if the remedy that
you are asking is granted by the court then that
will prejudice the adverse party.
And so, what is required?
Because that is litigious motion than
there must be a Notice of Hearing and aside from
notice of hearing, the adverse party must be
served with a copy of your motion.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec.5: NOTICE OF HEARING
Section 5. Notice of hearing. — The
notice of hearing shall be addressed to all
parties concerned, and shall specify the
time and date of the hearing which must
not be later than ten (10) days after the
filing of the motion.
The notice of hearing shall be addressed
to all parties concerned, and shall specify the
time and date of the hearing which must not be
later than ten (10) days after the filing of the
motion.
Kadtong 3 day, pagdawat to sa pikas.
Ang kaning 10 days, kadto ning pag file. Gikan sa
imong pag file, it must not be later than 10 days
after the filing.
Sec. 6: PROOF OF SERVICE
Section 6. Proof of service necessary. —
No written motion set for hearing shall be
acted upon by the court without proof of
service thereof.
Unsaon nimo pag prove nga gitagaan
nimo ug copy ang pikas?
 If personal service – the signature; or
 If mailed – the receipt
Q: So what will happen? For
example, you receive a decision. Napildi ka.
Pananglitan counsel ka for the plaintiff and you
file a case against the defendant. Na dismissed
ang imong kaso and you receive a decision. Now,
you intend to contest the decision of the court.
You ask for reconsideration. You file a motion for
reconsideration. However, your motion for
reconsideration did not contain a Notice of
Hearing. Nakalimtan nimo ang notice of hearing
pag sulat. What will happen no to your motion?
What will happen now to the decision?
A: The decision will now become
final and executor. Why should it become final
and executor when in fact you filed a motion for
reconsideration? It became final and executor
because your motion for reconsideration is
nothing. It is considered as a mere scrap of
paper. What makes it a mere scrap of paper?
Because it did not contain a notice of hearing.
Q: Suppose your motion for
reconsideration contains a notice of hearing and
the copy of motion is served upon the adverse
counsel through registered mail but there was no
explaination why it is that it was served through
registered mail. What will happen to the
decision?
A: That decision will become final
and executor. Why? Because there was no
explanation why registered mail was resorted to.
If there was no explanation, your motion is
considered as not filed. Mga simple kaayo ning
mga butanga pero mga importante kaayo.
Q: Suppose you file a motion
without a notice of hearing. Ngbasabasa na ka sa
motion pag human na ug file. Imong gi review.
“ah mayo ning pagka agrue nako oi. The court
has no opion but to grant this motion.” Pag tan-
aw nimo sa last page…”oi hastang buanga. Wala
man diay notice of hearing.” You filed an
amended motion for reconsideration this time
with notice of hearing. Will it cure the original
motion?
A: NO. look at this case of National
Commercial Bank of Saudi Arabia vs. CA,
January 31, 2003. The absence of notice of
hearing is fatal and in cases of motions to
reconsider a decision, the running of the period
to appeal is not tolled by their filing of pendency.
It cannot be cured by a belated filing of a notice
of hearing.
Q: Are all motions required to
contain a notice of hearing?
A: NO. Only litigated or litigious
motions. A litigious motion is a motion where if
the relief you are asking is granted would
prejudice the adverse party. If the relief you are
asking will not prejudice the rights of the adverse
party then that is not a litigious motion and
therefore, notice of hearing is not required.
Unsa man na for example kanang NOT
litigious motion? For example kanang you ask for
time to extend/ motion for extension of time to
file an answer that is a non-litigious motion
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because if granted, that will not affect the rights
of the adverse party and therefore you can file
your motion even without a notice of hearing.
Sec. 7: MOTION DAY
Section 7. Motion day. — Except for
motions requiring immediate action, all
motions shall be scheduled for hearing on
Friday afternoons, or if Friday is a non-
working day, in the afternoon of the next
working day.
General rule, Friday. But sometime,
dunay mga korte nga dili Friday especially didto
sa probensya. Kay panaglitan penal case ang
fiscal didto usa ra ka adlaw…Lunes unya ipa set
jud na nimo didto ug Friday nga wala may fiscal
ana? Pero just the same, mao man ingon sa Rules
nga ipa set nalang ug Friday. It is up to the court
to reset.
Q: Unsa may rationale ana nganung
kinahanglan man ug notice of Hearing?
A: kay aron makahibalo ang pikas
nga aduna kay motion kay maka apiktar man na
niya ang imong gipangayo. Just imagine motion
to dismiss unya walay notice of hearing.
Sec. 8: OMNIBUS MOTION
Section 8. Omnibus motion. — Subject
to the provisions of section 1 of Rule 9, a
motion attacking a pleading, order,
judgment, or proceeding shall include all
objections then available, and all objections
not so included shall be deemed waived.
Omnibus motion – a motion wherein
you include all grounds in attacking a pleading.
Tanan. Mura ni siya ug shot gun. All your
objections all your grounds. For example you
want to dismiss the claim so unsa may mga
grounds nimo? All your grounds will be included
in that motion.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Otherwise, those grounds not included
are deemed waived.
Sec. 9: MOTION FOR LEAVE
Section 9. Motion for leave. — A motion
for leave to file a pleading or motion shall
be accompanied by the pleading or motion
sought to be admitted.
There are instance that, before filing a
motion, you ask first leave. What do you mean by
leave? Leave means permission.
So for example, you want to file an
amended complaint after service of responsive
pleading, we have learned that you must ask for
leave of court first.
So when you file a motion of leave of
court, you may attach the pleading that you want
to file.
Sec. 10: FORM
Section 10. Form. — The Rules applicable
to pleadings shall apply to written motions
so far as concerns caption, designation,
signature, and other matters of form.
Unya form sa motion, the requirement for
the form of a pleading are the same. The motion
should be signed by the counsel. Because a
motion with the signature produce no effect.
Hinumdumi nga dili lang nga perma sa counsel.
Ibutang pod nimo ang imong address.
Hinumdumi nga dili lang address ibutang pod
nimo ang imohang Roll No.
You know roll no.? inig ka abogado na
gyud nimo…simbako ug maabogado ka, mo
perma ka adtong daku kaayo nga libro. Pwerteng
dakua adtong libro sa SC sa roll of attorneys.
Daku gud kaayo. Inig ukab gud ani usa gud ka
lamesa. Unya perma ka didto. Tua na imong
pangan ditto gisuwat.
… didto sa imuhang a motion should be signed
by the counsel, because a motion w/o a signature
does not produce any effect. Hinumdumi nga dle
lng pirma sa counsel, ibutang nimu ang imung
address, hinumdumi nga dle lng address ibutang
pd nimu ang imuhang role #.
You know what is role #? Inig ka abogado n jd
nimu mupirma ka atong dako na libro sa SC
mupirma kadidto sa imung usual signature mao
na e.attach didto, kung mag.usab gani ka kai
naminyo ka, hala mahbw.a ang SC nga mao na
imung signature, mao sab nah dka pahbw
disciplinahon ka sa SC. Kanang imung # didto
mao na imung timan.an because that is your role
#. Unya mao nay e.attach or e.butang.. (way
sumpay judge nagjoke na cya).
Unya aside from role #, ibutang pd nimu your IBP
#. IBP # is simply your receipt. Because every
year you are required to pay you annual dues.
And if you are a private practitioner, PTR #.
Ibutang pa na nimu ang #.
Karn naay bag.o MCLE compliance. Every 3 years
lawyer should attend an MCLE seminar. I think it
is 6 units. A lawyer should attend an MCLE
seminar, Mandatory Continuing Legal Education.
Every 3 years. Inig kapasar nimu ayaw kblaka kai
exempt pa ka. If ebutang nimu sa imu MCLE
exempt dunay risgo, inig receive sa imu pleading
ah bag.o way problema ni.
So unsa ibutang nimu?
 Name and signature
 Address
 Role #
 IBP #
 PTR
 MCLE Certificate #
RULE 16
MOTION TO DISMISS
This is very important. You have no other option
but to memorize all the grounds this is very
important.
What are the grounds for a motion to dismiss and
where are you going to file a motion to dismiss?
Section 1.Within the time for but before
filing the answer to the complaint or
pleading asserting a claim, a motion to
dismiss may be made on any of the
following grounds.
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So when are you going to file a motion to
dismiss? Within the period to file an answer,
within the 15 day period, or 30 day period or 60
day period.
Question: Can a plaintiff file a motion to dismiss?
Is there an instance where a plaintiff can file a
motion to dismiss? Or is filing a motion to dismiss
exclusive to the defendant? Filing a motion to
dismiss although it is usually done by the
defendant it is not exclusive for the defendant.
There are instances where in the plaintiff may file
a motion to dismiss. On what regard? As regards
to the counter claim of the defendant. Because it
says before filing to the answer of the complaint
or pleading asserting a claim. Sa ato pa, even a
co defendant can file a motion to dismiss against
the complaint or against the cross-claim. A 3 rd
party defendant can file a motion to dismiss as
regards to the 3rd party complaint.
Ok so what are the grounds?
(a) That the court has no jurisdiction
over the person of the defending
party;
 We have discussed this already.
How can the court acquire
jurisdiction over the person of the
defendant? By serving summons
or by voluntary appearance. By
serving summons or proper
service of summons. The
defendant who is not served with
summons or improperly served
with summons can file a motion
to dismiss on the ground that the
court has no jurisdiction over the
person of the defendant.
(b) That the court has no jurisdiction
over the subject matter of the claim;
 Jurisdiction over the subject matter as what
we have learned is conferred by law and it
is determined in the allegations in the
complaint. In other words jurisdiction over
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the subject matter is conferred by law and
allegations in the complaint. So look at the
law and look at the allegations in the
complaint, whether the court has
jurisdiction or not.
 Jurisdiction of the court over the subject
matter is determined by the allegations of
the complaint and does not depend on the
allegations on the answer or in the motion
to dismiss. For example ako na ni gsulti
ninyo, a collection of sum of money is file
before RTC, in order to collect from the
defendant the amount of shall we say of
500,000 the defendant file an answer w/
affirmative defense of lack of jurisdiction he
argued that he has already paid the
plaintiff the amount of 300,000 and so he is
asking the court to dismiss the case
because the remaining collectible amount
is 200,000. He argued that the court has no
jurisdiction over the case. Q: should the
court be dismissed? Answer: No, to
determine whether the court has
jurisdiction over the action the court has to
look at the allegations in the complaint, not
in the answer or in a motion to dismiss
otherwise according to the SC the
jurisdiction of the court would just depend
on the will and caprices of the defendant.
Question: Should the case be disimissed? No.
Because to determine whether the court has
jurisdiction over the action, the court has to look
at the allegations of the complaint not in the
answer or in the motion to dismiss. Otherwise,
according to the Supreme Court, the jurisdiction
of the court would just depend on the whims and
caprices of the defendant.
(c) That the venue is improperly laid;
You have learned this that as regards real action
or where the subject of the case is the real
property or any interest in the real property the
case should be filed in the place where the real
property is located. As regards personal actions
it depends upon the residence of the parties at
the option of the plaintiff.
(d) That the plaintiff has no legal capacity
to sue;
Legal capacity refers to the question whether or
not the plaintiff is in the exercise of his civil
rights. For example what is your ground for a
motion to dismiss if the case is filed by a minor
without the assistance of his father. Lack of legal
capacity to sue. What about if the case is filed
by an incompetent? Lack of legal capacity to
sue. What about if the case is filed by a crew
who claimed to be a corporation but unregistered
corporation? Lack of legal capacity to sue
because an unregistered corporation cannot sue.
It can be sued but it cannot sue. What would be
the ground to dismiss the case? Lack of legal
capacity to sue.
What about if a person files a case for and in
behalf of another? For example the father filed a
case for sum of money on behalf of his son who
is abroad because the son is working as a nurse
but however the father is not equipped with a
special power of attorney. What would be the
ground for the dismissal of the case? The ground
for the dismissal of the case is NOT lack of legal
capacity to sue because the father is adult. The
ground is FAILURE TO STATE A CAUSE OF ACTION
because the father has no cause of action against
the defendant.
Although dunay uban mga author nga ni cite ug
kaso nga kanang unauthorized agent lack of legal
capacity kuno ang ground. Pero most of the legal
experts state that the ground is failure to state a
cause of action. I (JD) think that is correct.
(e) That there is another action pending
between the same parties for the same
cause;
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You call this LITIS PENDENTIA. Litis pendentia as
a ground will also relate to forum shopping
because if there is litis pendentia therefore you
violated the rule on forum shopping. Now look at
the requisites for litis pendentia kinahanglan nga
tan awun nimu anus-a ang litis pendentia. Diay
latest kaayu nga litis pendentia aye. You read
this case of Umali vs. Canuga Park Development
Association, July 20, 2011.
What are the requisites for litis pendentia?
i. The parties to the action are the same.
 Or at least such parties represent the same
interest in both actions. You know
complete identity of parties, plaintiff and
defendant is not really required. Because it
could be that there is an additional party.
 For example dunay pending case between
C and D. Unya si C ni file ug another case
involving the same cause of action. Now
this time he impleaded E as an additional
defendant. Is there litis pendentia despite
the fact that there is an additional party?
YES. Because it is not necessary that the
parties are totally the same. It is enough
that there is substantial identity of parties.
Look at the case of Villarica Pawnshop Inc.
vs. Spouses Gernale, et al., March 20,
2009.
ii. Substantial identity in the cause of action
and the relief sought.
 The relief being founded on the
same fact.
iii. The identity in the two cases should be
that any judgment that may be had in
one case regardless of which party is
successful would amount to res judicata
in the other case.
 Sa ato pa duha ka kaso gi file. Unsaun
man na pag-ila nga pareho ra sila? Basta
kung kinsay mu daog sa bisag unsang
kaso, ari ba ka sa wa or ari ba ka sa tua
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
there will be res judicata. For example
here is a case involving a real state
mortgage between C and D. D obtained a
loan in the amount of 500,000 from C
secured by a real estate mortgage. D filed
a case for annulment of the real estate
mortgage against the mortgagee. Naka
una si D ug file ug kaso, D vs. C,
annulment of real estate mortgage. While
the case is pending, C filed a case against
D for foreclosure of mortgage. Do you get
the facts?
 Pirmero si D ni file ug kaso batok ni C ug
annulment of real estate mortgage then
later on C filed a case for foreclosure of
mortgage against D. D in this case,
foreclosure of mortgage, in his answer
raised the defense of litis pendentia.
According to him there is another pending
case involving the same parties or
involving the same cause of action and so
he asked that this case be dismissed.
Should the case be dismissed on the
ground of litis pendentia?
 Unsa to ang ato gi ingun ganina? Dunay
litis pendentia kung bisag asa nila
mudaug, whichever party wins will create
res judicata as to the other case. So is
there litis pendentia? According the
Supreme, NO. Because in this case if C
wins (sa ato pa ma dismiss ning kasoha)
so this will be foreclosed. There is no litis
pendentia because if C wins then this will
be foreclosed.
 Way problema kung si D ang mudaug.
Kung mudaug si D then wala ni (walay
foreclosure). Ang problema kung si C ang
mu daog (so e dismiss nimu ang kaso)
then maka foreclose si C. Mu prosper ang
foreclosure kay gi dismiss man ang iyang
kaso pag question sa validity so there is
no litis pendentia because one requisite of
litis pendentia is that if either party will
win in either case will create res judicata
as to the other. So there is no litis
pendentia.
 That is the ruling of the Supreme Court in
Tambunting vs. Ong, August 11, 1950.
 Unsa toy usa sa mga requisites?
Regardless of who wins in the case will
create res judicata on the other case. And
in our example, whoever wins in the first
case would create a res judicata in the
other case. Duna ray res judicata kung si
D ang mu daog pero ug si C ang mudaog
no res judicata and therefore no litis
pendentia.
 Another case, recovery of a parcel of land.
 (PLEASE REFER SA INYO NOTES KAY
GALIBOG KO ASA NGA HERE UG HERE
UG HERE ANG PASABOT NI JD OUR
LOVE)
 P dunay yuta and nag actual occupant ani
si D unya gi claim ni ni P. Gusto man
kuhaon ni P gusto niya papahawaun si D
so ni file siya ug kaso batok ni D. Dili
ejectment tungod kay nangangkon man si
D nga tag-iya siya. He filed a case for
recovery of ownership and possession
against D. While the case is pending D
filed another kaso against P over the same
property this time the action is for
quieting of title. P in his answer raised
litis pendentia. Is there litis pendentia?
YES. Because whoever wins here
(recovery of ownership and possession)
will create a res judicata here (quieting of
title). Kung pananglitan mu daog si P aw
wa na dismissed pud ni siya(quieting of
title). Dili na maka recover si D kay daog
man si P diri (recovery of ownership and
possession). So dili maka recover si D.
 Kung pananglitan si D pud ang mudaog
diri (quieting of title) unsa puy mahitabu
diri (recovery of possession and
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ownership)? Mao ra gihapon. So whoever
wins here will create a res judicata here.
 In res judicata there is the same parties,
identity of parties, identity of issues. Tan-
awa lahi ang iyahan title but the issue is
the same, the issue of ownership.
Recovery of ownership and possession
involves issue on ownership and
possession, quieting of title involves
ownership and possession. So there is litis
pendentia. Actually, litis pendentia ug
kanang res judicata mu pareho ra na sila.
Ang litis pendentia pending ra ang duha or
tulo pero ang res judicata terminated ang
usa. And necessarily either there is litis
pendentia or res judicata there could also
be violation of forum shopping. In other
words kung mu discuss ka ug forum
shopping it would be necessary for you
also to touch on litis pendentia and res
judicata. This is the case of Francisco
vs. Vda. De Blas, 93 Phil 1.
In litis pendetia is it necessary that the motion to
dismiss be filed in the second case? Kinahanglan
ba gyud nga ang litis pendentia ang kaso nga ma
dismiss ang second case? NO. The motion to
dismiss can be filed in either case. So in our
second example where there is litis pendentia,
the litis pendentia could be filed in the first case.
Sagad ari sa second case.
(f) That the cause of action is barred by a
prior judgment or by the statute of
limitations;
(g) That the pleading asserting the claim
states no cause of action;
Or failure to state a cause of action. Here when
can you say that the pleading fails to state the
cause of action? Meaning there is insufficiency in
the allegations. For example naay nakahuwam
nimu sabot mu nga bayran ka anang petsaha,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
wala mubayad. Imu paninglan padad-an nimu ug
deman letter, written. Hinog na jud ang imu
cause of action, ma file na jud nimu sa Korte.
Karun pag buhat nimu sa imuhang complaint
nakalimut man ka ug butang nga nakapadala ka
ug demand. Nakapadala gud ka ug deman
nakalimut lang jud ka ug state didto sa imuhang
complaint. What will happen now to your
complaint? Your complaint could be dismissed
for failure to state a cause of action. You have a
cause of action but you failed to state it in your
complaint.
Failure to state a cause of action. There is
insufficiency in the allegations.
Kanang pag allege nimu nga na kay demand part
na siya sa imu cause of action. You cannot file a
collection of sum of money without making first
the demand.
Another, file ka ug ejectment. Nay nangabang sa
imung balay walay abang abang lima na ka
buwan. Imu na gipadad-an ug demand letter,
imu nang gipanginglan. Wala jud. File-an nimu
ug ejectment case. Unsa may e allege nimu
didto sa imu complaint for ejectment? Allege nga
tag-iya ka, gi abangan ni siya, unya wala maka
abang, unya gipadad-an nimu ug demand, wa
gihapon mu abang wa gihapon mu hawa. Timan-
e ha nga ejectment demand to pay AND to
vacate. Kay kung nagpadala ra kag demand to
pay wala demand to vacate way ejectment y our
cause of action is sum of money. So wala nimu
ma state nga duna kay demand to vacate and
pay the rent unsa may mahitabu sa imung
complaint? Nganung ma dismiss man nga naa
man kay cause of action. Naa lagi kay cause of
action pero wa man nimu gi state. Unsa may
ground nimu? Failure to state a cause of action.
Pananglitan na state jud ni nimu nga nakahuwam
ni due, gipaninglan wa jud kabayad. Kana tanan
na state jud nimu, na attach pa gani nimu ang
promissory note, na attach pa gani ang demand
letter. Can your complaint be dismissed for
failure to state a cause of action? Aw DILI. Kay
completo man.
Nia na ta sa hearing, trial na, nakalimut man kag
present sa demand letter. Unsa may mahitabu
run sa imung kaso? Nakalimut sad kag
pangutana sa witness if you had demand. Aw ma
dismiss. Unsa may ground? Aw dili failure to
state a cause of action kay sa complaint ra man
to. Ang imung ground kay LACK OF CAUSE OF
ACTION. Meaning you failed to present evidence
to prove your claim.
Arang arang na lang na. Ang problema ang
failure to state a cause of action kay wa gyud
nimu ma state.
Another example. What is the ground if the case
is filed by a person who is not duly authorized by
the real party in interest? Failure to state the
cause of action.
(h) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished;
Kaning sa (h) daghan ni siya ug grounds, Paid
meaning fully paid. Waived or abandoned or
extinguished. What do you mean by
extinguished? Meaning prescribed.
Nahinumdum mu sa inyung civil law nga duna
ma nay mga prescriptions ang mga actions. Pila
may prescriptive period sa ejectment? 1 year.
Pila may prescriptive period sa collection of sum
of money without any written contract? Kanang
oral ra nga pang huwam. 4 years. If bounded on
a written contract, 10 years.
Kung pananglitan nay naka utang nimu oral
walay kasuwatan kay amigo ra. Nag-away man
mu run sa facebook imung gipaninglan.
Nangaway ka nako. Tan-aw nimu aye 5 years na
man unsa may depensa sa pikas inig paninglan
na nimu? Prescribed.
(i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
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There are contracts that need to be reduced into
writing in order to be enforceable, take aning
mga contracts under the Statute of Frauds. Not
necessarily nga kaning contracts which have to
be reduced in writing to be enforceable, the
written contract need no be notarized. It is
enough that the same be in writing to be
enforceable.
(j) That a condition precedent for filing the
claim has not been complied with.
Now there are cases wherein before filing in court
there are conditions sine qua non that must be
complied first. On of these is those cases that
require referral to the baranggay. So kung mu
file kag kaso unya kanang kasoha required be the
Local Governement Code to be referred to the
baranggay but you did not refer it so the
baranggay prior to the filing of the case in court
then the defendant could ask for the dismissal of
the same.
Another when the case requires earnest efforts
for compromise agreement or settlement before
filing in court. Unsa ma ning mga kasoha? Those
cases wherein the parties belong to the same
family members. Unya naa diha sa libro ni
Regalado unsa ma nang the same family
members inyo sad na tan.awun. Take note that
this rule will not apply when there is a stranger.
Another is exhaustion of administrative remedies.
There are cases the subject of which is
cognizable by administrative bodies. Mao niy
gitawag nga doctrine of exhaustion of
administrative remedies. Unya dunay related
doctrine ana, Doctrine of Primary Jurisdiction that
the court will no take cognizance over the case
which should be referred first before the
administrative bodies.
Now there are other grounds for dismissal but
which are not mentioned here. Try to go back to
Rule 6 Sec. 5. Constitutionality, illegality of the
subject, that the contract is void. But although
grounds for dismissal cannot be grounds for a
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
motion to dismiss. They are not grounds for a
motion to dismiss.
When a party files a motion to dismiss, for
example the defendant, he is hypothetically
admitting the allegations in the complaint. There
is a hypothetical admission of the truth of the
facts alleged in the complaint. Hypothetical
admission meaning assuming they are true. By
filing a motion to dismiss the defendant is just
assuming that the allegations are true.
Pananglitan mu file ka ug motion to dismiss on
the ground of improper venue you are
hypothetically admitting that the facts alleged in
the complaint are true. Sa ato pa mu ingun
tugutan nato nga tinuod ni. Ibutang nato nga
tinuod ni. Kani imung kaso kay ma dismiss ni kay
prescribed na. So there is a hypothetical
admission assuming that the facts alleged are
true.
Can the court motu proprio disimiss a case
such as on the ground of improper venue?
GENERAL RULE: The court cannot dismiss the
case motu proprio.
However, there are EXCEPTIONS:
1. Grounds mentioned in Sec. 1 Rule 9
 Lack of jurisdiction
 Litis pendentia
 Res judicata
PROVIDED that these matters are
apparent on the face of the complaint.
2. Grounds mentioned in Sec. 3 Rule 17
 Non-compliance of an order of
the court
 For example in our previous meetings we
discussed about motion for bill of
particulars. If there is motion for bill of
particulars filed by the adverse party and
the court ordered the plaintiff to state
particular facts but the plaintiff did not
comply then the court could motu proprio
dismiss the case pursuant to Sec. 3 Rule 17.
3. Under the Rules on Summary Procedure
 You know under the Rules on
Summary Procedure motion to
dismiss is a prohibited pleading
but the court can motu proprio
dismiss the case on any of the
grounds for dismissal.
4. Under the Rule on Small Claims
The grounds for a motion to dismiss must be
raised in a motion to dismiss or in the answer as
affirmative defenses. If not raised in a motion to
dismiss or in the answer the same could be
considered waived.
GENERAL RULE:
Grounds not raised in a motion to dismiss
or in an answer, waived.
EXCEPTIONS:
1) Jurisdiction over the subject-matter
2) Litis pendentia
3) .Res judicata
When a motion to dismiss is filed on the
ground that the complaint states no cause
of action the court is not allowed to receive
evidence alliunde or outside evidence but
should rule on the motion based on the
allegations of the complaint itself. Mi ingun
man ka nga ipadismiss nimu kay failure to state a
cause of action then the court will only examine
the four corners of the complaint whether it failed
to state a cause of action. The court is not
allowed to recieve evidence or evidence alliunde
to prove that the complaint states no cause of
action.
Talking about lack of jurisdiction remember
amendment. Amendment to confer jurisdiction
before the filing of a responsive pleading is
allowed. But amendment to confer jurisdiction
upon the court after the filing of a responsive
pleading is not allowed because when the court
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does not have jurisdiction over the subject it has
only one power and the power is to dismiss the
complaint.
Kaniadto kanang dili nimu e agi sa baranggay
ang kaso ang ground ni ana prematurity pero
karun gi specify na sa rules. Non-compliance
of condition precedent.
SEC. 2. Hearing of motion. – At the hearing
of the motion, the parties shall submit their
arguments on the questions of law and
their evidence on the questions of fact
involved except those not available at that
time. Should the case go to trial, the
evidence presented during the hearing
shall automatically be part of the evidence
of the party presenting the same.
Now hearing of a motion just like litiguous motion
should contain notice of hearing and a copy
thereof must be furnished the adverse party and
it must be set for hearing. And during the
hearing of the motion the parties may be allowed
to present evidence on the questions of fact
involved or to raise their arguments in the
questions of law and any evidence produced
during the trial of the motion shall automatically
be party of the evidence of the party presenting
the same.
SEC. 3. Resolution of motion. – After the
hearing, the court may dismiss the action
or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the
resolution of the motion for the reason that
the ground relied upon is not indubitable.
In every case, the resolution shall
state clearly and distinctly the reasons
therefor.
So tulo ang iyang option, grant, deny or order the
amendment.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Upon the filing of the motion to dismiss can the
plaintiff still amend his complaint? Yes. Because
motion to dismiss is not a responsive pleading.
Ato gyud na balik balikun arun mu tuhop sa utok.
BAR QUESTION: Can there be a motion to
dismiss with counter-claim? Can you file a
motion to dismiss with counter-claim? You ask
for the dismissal of the case on the ground that
the obligation is already fully paid. Di ba full
payment is a ground for dismissal and you ask
now for counter-claim. Can there be a motion to
dismiss with counter-claim? NO. Because motion
to dismiss is not a responsive pleading. A
counter-claim should beraised in a responsive
pleading.
Now what is the remedy of the defendant if the
motion to dismiss is denied? If the motion to
dismiss is denied then ang iyang remedy ana is
to file an answer. When? Pila na man lang ang
remaining time niya? Look at Sec. 4.
SEC. 4. Time to plead. – If the motion is
denied, the movant shall file his answer
within the balance of the period prescribed
by Rule 11 to which he was entitled at the
time of serving his motion, but not less
than five (5) days in any event, computed
from his receipt of the notice of the denial.
If the pleading is ordered to be amended,
he shall file his answer within the period
prescribed by Rule 11 counted from service
of the amended pleading, unless the court
provides a longer period.
Ayaw mu ka confuse ato sa Neypes vs. Neypes
ha nga duna siyay fresh period. Kato sa motion
for reconsideration to after the decision. Kani wa
pay decision.
The defendant aside from filing his answer, what
will be his other remedy. Nagtuo man gyud siya
nga way jurisdiction ang court. Gi file for
example sa MTC and he believes that the action
is not capable of pecuniary estimation and
therefore should be filed in the RTC. Nag tuo
man gyud siya. He is really convinced. What
shoud he do. Now if he really believes that the
order of the court denying his motion to dismiss
is erroneous then he can file a petition for
certiorari and or prohibition arguing that the
court acted in grave abuse of discretion. He is
not allowed to file an appeal because an order
denying a motion to dismiss is an interlocutory
order.
So first remedy niya, unsa toy first remedy niya?
Inyu gyud na sag-uhon ha. Kung gi deny ang
motion to dismiss unsa ang iyang first remedy?
FILE AN ANSWER AND IF YOU BELIEVE THAT THE
COURT IS WRONG IN ITS DENIAL OF YOUR
MOTION TO DISMISS, YOU REITERATE YOUR
GROUND YOU RELIED ON OF YOUR MOTION TO
DISMISS.
For example you filed a motion on the ground of
improper venue but the court denied it. Then
you file an answer and you incorporate, you
allege it, you make it as one of your defenses the
ground of improper venue. You reiterate. Why is
there a need for you to reiterate? Could the
court still change its mind and after the trial
dismiss the case? YES.
For example you alleged that there is res
judicata. The court denied your motion. You
incorporate that ground in your answer as one of
your affirmative defenses. Later on after trial the
court is convinced that indeed there is res
judicata can the court dismiss the case on such
ground despite the fact that earlier it denied your
motion to dismiss? YES. Because the court can
still change its interlocutory order.De la sala, et
al., vs. Sarnate Anpelyido, 110 SCRA 255
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What about on the part of the plaintiff? Unsa
man sad ang remedy sa plaintiff? The first
remedy is to REFILE the case if the same can be
refiled. For example lack of jurisdiction. File it in
the proper court. If improper venue, refile it on
the proper venue. Is there res judicata? NO. BUT
if the order of dismissal will not allow the refiling
of the case then your remedy is APPEAL.
Because the order now is considered a final
order.
Unsa ma ning grounds nga dili na gyud nimu ma
refile ang your remedy is appeal? Look at Sec. 5.
SEC. 5. Effect of Dismissal. – Subject to the
right of appeal, an order granting a motion
to dismiss based on paragraphs (f), (h), and
(i) of section 1 hereof shall bar the refiling
of the same action or claim.
Par. (f) – Res Judicata dili na nimu pwede ma
refile.
Par. (h) – Extinguishment, Prescription
Par. (i) – Barred by the Statute of Frauds
You cannot refile it so your remedy is appeal.
Kung pananglitan dili ka mu file ug motion to
dismiss duna ba kay lain remedy nga pareho ra
pud kag naka file ug motion to dismiss? Yes.
And this is the best. This is much better than
filing a motion to dismiss. What is it? Instead of
filing a motion to dismiss you file an answer and
allege the grounds for your motion to dismiss
that you intend to file as affirmative defense.
SEC. 6. Pleading grounds as affirmative
defenses. – If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as
an affirmative defense in the answer and, in
the discretion of the court, a preliminary
hearing may be had thereon as if a motion
to dismiss had been filed.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The dismissal of the complaint under
this section shall be without prejudice to
the prosecution in the same or separate
action of a counterclaim pleaded in the
answer.
Unsa may buhaton sa court kung wala motion to
dismiss pero dunay answer pero sa iyang answer
dunay mga grounds sa iyang kaso nga gi allege
as affirmative defenses? The court may conduct
a hearing as regards the grounds to dismiss the
case as if there was a motion to dismiss. But
take note that it is upon the discretion of the
court. The court may or may not conduct the
hearing on such ground. If the court will conduct
a hearing the good. If the court will not conduct
a hearing you cannot file a petition for certiorari
against the court for not conducting a hearing
because it is the discretion of the court.
What will happen to the counterclaim if the case
is dismissed? Since there is now an answer and
the answer may raise counterclaim the dismissal
of the complaint under this section shall be
without prejudice to the prosecution in the same
or separate action of a counterclaim pleaded in
the answer.
So mao nay naka nindut kung imu nang e allege
sa imu answer ang imung grounds. Nganu man?
Kay maka raise na ka ug counterclaim. Didto sa
motion to dismiss you cannot raise counterclaim.
Ug ma dismiss ang kaso because of your answer,
then the court may proceed to hear your
counterclaim or may require you to prosecute
your counterclaim in a separate action.
Rule 17
DISMISSAL OF ACTIONS
SECTION 1. Dismissal upon notice by
plaintiff. – A complaint may be dismissed by
the plaintiff by filing a notice of dismissal at
any time before service of the answer or of
a motion for summary judgment. Upon
such notice being filed, the court shall issue
an order confirming the dismissal. Unless
otherwise stated in the notice, the
dismissal is withut prejudice, except that a
notice operates as an adjudication upon the
merits when filed by a plaintiff who has
once dismissed in a competent court an
action based on or inluding the same claim.
Can the plaintiff dismiss his own case? Yes. And
he can do it by mere notice before a motion for
summary judgment is filed. So pananglitan si C
ni file ug kaso batok ni D for sum of money unya
pag human niya ug file summons, si D tawn didto
man ni C nagluhod luhod in tawn, “Pwede ba
nimu e dismiss ang kaso mubayad man ko tagae
lang ko ug usa ka bulan.” Naluoy si C kay gikan
pa gyud in tawn to siya sa Rome. Unsa may
buhaton nya? C can file a MERE NOTICE to the
court that he is dismissing the case. With that
notice the court has no option but to dismiss the
case. Dili na pwede nga e deny sa Court. The
work of the court here is merely to confirm the
dismissal.
And the dismissal is without prejudice. He can
refile it.
So pananglitan nilapas na sa isa kabuwan
hangtud na duha ka bulan wala gihapon mu
bayad si D so iya gi file ug usab ang kaso. Pwede
ba? Yes. Because the dismissal is without
prejudice. Uy, nibalik na man sad si D
nagpakiluoy na sad. Naluoy na sad si C. Mao to
nga iyaha na sad nga gi dismiss. Gitagaan na
sad nya ug usa ka bulan. Pag labay sa usa ka
bulan wa man gihapon mutuman. Can C refile
the case? No more. Mao niy gitawag nga TWO-
DISMISSAL RULE. Why? Because the 2nd
dismissal is already dismissal on the merits.
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In the second case when the case is refiled
because of the previous dismissal, in the filing of
the 2nd case there is NO need to include
certification against forum shopping.Roxas vs.
CA, August 16, 2001.
Now regarding the notice of dismissal, kato sa 1st
notice of dismissal the court has no option but to
confirm the dismissal. Dili pwede dugay dugayun
nya because that is a matter of right on the part
of the plaintiff regardless of the grounds.
SEC. 2. Dismissal upon motion of plaintiff. –
Except as provided in the preceding
section, a complaint shall not be dismissed
at the plaintiff’s instance save upon
approval of the court and upon such terms
and conditions as the court deems proper.
If a counterclaim has been pleaded by a
defendant prior to the service upon him of
the plaintiff’s motion for dismissal, the
dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to
the right of the defendant to prosecute his
counterclaim in a separate action unles
within fifteen (15) days from notice of the
motion he manifests his preference to have
his counterclaim resolved in the same
action. Unless otherwise specified in the
order, a dismissal under this paragraph
shall be without prejudice. A class suit
shall not be dismissed or compromised
without the approval of the court.
Kato sa mi agi notice man to, pahibaw-un ra
nimu. You can file notice of dismissal before
answer is being filed or motion for summary
judgment is filed.
A complaint shall not be dismissed at the
plaintiff’s instance save upon approval of the
court and upon such terms and conditions as the
court deems proper. So there must be a motion
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
when an answer or motion for summary
judgment is filed.
What about if there is counterclaim and the
motion is dismissed upon the motion of the
plaintiff? If a counterclaim has been pleaded by
a defendant prior to the service upon him of the
plaintiff’s motion for dismissal, the dismissal shall
be limited to the complaint. The dismissal shall
be without prejudice to the right of the defendant
to prosecute his counterclaim in a separate
action unles within fifteen (15) days from notice
of the motion he manifests his preference to
have his counterclaim resolved in the same
action. Duna na man guy answer unya kung
dunay answer there could be a counterclaim. If
the plaintiff now is asking the dismissal of his
complaint the same cannot be dismissed by mere
notice, he has to file a motion. And the motion
shall be acted by the court. If the court grants
the motion then what will happen to the
counterclaim of the defendant? The same shall
continue either in the same case of in a separate
action.
The dismissal here is without prejudice.
A class suit shall not be dismissed or
compromised without the approval of the
court.Because it is filed also in behalf of the other
persons who might be prejudiced by the
dismissal that is why it needs approval by the
court.
Now, Sec. 3 is very important as far as dismissal
of the complaint due to the fault of the plaintiff is
concerned.
SEC. 3. Dismissal due to fault of plaintiff. –
If, for no justifiable cause, the plaintiff fails
to appear on the date of the presentation
of his evidence in chief on the complaint, or
to prosecute his action for an unreasonable
length of time, or to comply with these
Rules or any order of the court, the
complaint may be dismissed upon motion of
the defendant or upon the court’s own
motion, without prejudice to the right of
the defendant to prosecute his
counterclaim in the same or separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court.
Unsa ma nang evidence in chief? Kana btaw
pirmero pa gyud niyang present sa iyang
evidence dili rebuttal. If he fails to appear during
the presentation of his evidence in chief then his
case shall be dismissed. Pero kung pananglitan
wa siya mutunga diri na sa pag present sa
evidence of defendant, then that cannot be a
ground for the dismissal of the case because the
rules say that it is his absence during the
presentation of his evidence in chief that
warrants the dismissal of the case.
Another ground is failure to prosecute his action
for unreasonable length of time. For example he
keeps on asking postponements. The hearings
are postponed at his instance. The case could be
dismissed for failure to prosecute.
Another is failure of the plaintiff to comply with
this rules or any order of the court. Di ba mu
ingun ta ganina nga if the court orders him to
particularize by reasons of bill of particulars filed
by the defendant but the plaintiff did not comply
with that order the case can be dismissed under
Sec. 3 for failure to comply with any order of the
court. Or for example the court orders him to
implead an indispensable party, we have learned
that an indispensable party should be impleaded,
but he did not amend his complaint therefore the
case now could be dismissed.
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Take note that these grounds for dismissal can be
made by the court motu proprio in other words
even without a motion from the adverse party.
And when the case is dismissed on any of these
grounds take note that dismissal is with
prejudice meaning it cannot be refiled unless the
court expressly states in the order that the
dismissal is without prejudice. But if the court
simply states in its order that the case is
dismissed that dismissal is with prejudice.
November 19, 2012 (Monday)
Are we done with rule 17?
Section 3. Dismissal due to fault of plaintiff.
— If, for no justifiable cause, the plaintiff
fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply
with these Rules or any order of the court,
the complaint may be dismissed upon
motion of the defendant or upon the court's
own motion, without prejudice to the right
of the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court.
DISMISSAL DUE TO THE CAUSE OF
PLAINTIFF.
So, if for no justifiable cause the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the compliant or to
prosecute his action for unreasonable length of
time... Okey, so for failure to appear on the
date of presentation of his evidence is simple.
Meaning he failed to present for the first time,
kanang evidence gitawag na naton evidence in
chief. Sa presentation of evidence primero, diba
kasagaran ana kay ang plaintiff man ang mauna,
human ang katong defendant. Kahuman ana,
mubalik nasad ug presenta ug ebidensiya ang
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
plaintiff. Kanang iya pagbalik ug presentar ug
ebidensiya mao nang gi-tawag na rebuttal.
Anang iya pagpresentar ug ebidensiya ang
purpose ana is to refute the evidence presented
by the defendant. Kaning primiro niya pagpresent
kai to prove his claim mao ning gitawag na
evidence in cheif.
Usa pud na buhaton ninyo arong musod sa inyo
utok kanang sabtod pud niyo ang words, kay
kung naa pud tay words na dili masabtan lisud
jud na ipasok sa inyong utok. Panimuha jud na
masabtan nimu, for example pereho nang
evidence in chief. Arong inig-answer na nimu,
makabalo naka ana kung unsay evidence in chief.
Failure to prosecute his action for an
unreasonable length of time.
For example he is keep on asking for
postponement then that would tantamount to
failure to prosecute his action for an
unreasonable length of time. Pero kung kausa pa
siya nangayo ug postponement, unya mu-move
ka for dismissal, ah that would not be proper
because the rules say “unreasonable length of
time”. So, if it is for the first time that the plaintiff
asks for resetting then that can still be allowed
and that would be improper for the court to
dismiss the case.
Failure to comply with these Rules or any
order of the court.
There are provisions here under the rules that
obligation is imposed upon the plaintiff. For
example Sec.1, Rule 18, the rule require that
after the filing of the last pleading the
prosecution is require to file a motion to set the
case for pre-trial. So that obligation is imposed by
the rule upon the plaintiff, so there if he could not
file a motion the case could be dismiss on the
ground for failure to comply with these Rules or
any order of the court . Example upon motion,
the court will require the plaintiff to give
particulars on certain allegation in his complaint
but he failed to comply said order of the court
then the case can be dismiss by the court for
failure to comply with the order. Now the
dismissal here is upon motion of the defendant or
motu proprio, meaning upon the court’s own
motion. And another, the dismissal is with
prejudice unless the court expressly state in the
order that the dismissal is without prejudice. Sa
ato pa kung ang korte sa iya order gi-butang
didto, “for failure to comply order dated Jan, 5,
2012 this case is hereby dismissed, so order.” So,
wala gibutang na “with prejudice” ba to or”
without prejudice”, then that dismissal is
considered with prejudice.
Section 4. Dismissal of counterclaim, cross-
claim, or third-party complaint. — The
provisions of this Rule shall apply to the
dismissal of any counterclaim, cross-claim,
or third-party complaint. A voluntary
dismissal by the claimant by notice as in
section 1 of this Rule, shall be made before
a responsive pleading or a motion for
summary judgment is served or, if there is
none, before the introduction of evidence
at the trial or hearing.
Now, what about if the defendant has filed his
counter-claim. What will happend to his
counterclaim? His counter-claim shall be
prosecuted in the same case or in a
separate case. Now this dismissal as what we
have said shall give an effect on adjudication
upon the merits, meaning it is with prejudice
unless otherwise declared by the court.
And now, let’s go to Rule 18.
RULE 18
Pre-Trial
Section 1. When conducted. — After the last
pleading has been served and filed, if shall
be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-
trial (5a, R20)
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After the last pleading is served and filed, when
we say “served” that has something to do with
the giving of a copy of a pleading or motions to
the party. When we say “filed” it has something
to do with the filing with giving or presenting with
the copy of a pleading or of a motion to the
court. So, after the last pleading has been served
and filed, it shall be the duty of the plaintiff ( mao
ning ako gi-ingon ganiha that a rules may
imposed a duty upon a plaintiff, diba?) to
promptly move ex parte that the case will be set
for pre-trial.
That you might ask what would be the last
pleading before a pre-trial will be held? Now, if
the plaintiff did not file a reply or answer to the
claim, then the last pleading would be the
answer. But if after the defendant filed a reply,
then the last pleading would be the reply, kay
after sa reply dili naman makatubag ang
defendant , wa naman na gi-tawag na re-joinder.
So, reply would be the last pleading kung ni-file
but kung wala then answer would be the last
pleading.
So, kanus-a man ka makabalo kung dili
interesado mu reply ang plaintiff? After the
lapsed of period to file a reply. So, dire nasad ta
sa provision sa rules: kanus-a man ka mu-file ug
reply? That is 10 days after the receipt of an
answer. Katong ni-aging bar exam daghang
question mahintungod sa period. So panagana
nalang mo daan na ibalik na.
Under sec. 1 the plaintiff is mandated to file a
motion ex parte to set the case for pre-trial. So,
dunay recent Administrative circular (you read
this administrative circular):A.M. No 03-1-09-SC
dated August 16, 2004. Now, this circular
provides for the guidelines on how to conduct
pre-trial. Under this circular the Supreme Court
says, “If the plaintiff fails to file a motion to set
the case for pre-trial, the clerk of court shall issue
notice of pre-trial”. Sa ato pa after the filing of
last pleading dili mu-file ang plaintiff to set the
case for pre-trial, it would be the clerk of court
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
who will issue notice to the party setting the case
for pre-trial under this administrative circular.
Section 2. Nature and purpose. — The pre-
trial is mandatory. The court shall consider:
(a) The possibility of an amicable
settlement or of a submission to
alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of
amendments to the pleadings;
(d) The possibility of obtaining
stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of
witnesses;
(f) The advisability of a preliminary
reference of issues to a commissioner;
(g) The propriety of rendering judgment
on the pleadings, or summary judgment,
or of dismissing the action should a valid
ground therefor be found to exist;
(h) The advisability or necessity of
suspending the proceedings; and
(i) Such other matters as may aid in the
prompt disposition of the action.
NATURE AND PURPOSE OF PRE-TRIAL
Pre-trial is mandatory. Meaning the court
cannot just forego pre-trial. What are the
matters that should be considered during
pre-trial:
1. The possibility of an amicable settlement
or of a submission to alternative modes of
dispute resolution.
Actually this is the number one purpose of the
pre-trial for the parties to come up with an
amicable settlement. You know kanang Civil nga
kaso man gud hilabihan na kadugay ma-
terminate. Ang criminal man gani na naay
napriso dugay man gani ma-disposed unsa kaha
ning civil na ang naa man gani ani kay properties
ra. So, arong madali madisposed maong naay
pre-trial, unya ang purpose ana is for the parties
to arrived amicable settlement. Now, under the
administrative circular that I mentioned to you
earlier, Supreme Court in that circular mandated
that before the pre-trial proper the parties are
require to appear before the clerk of court. Unya
unsa may buhaton diha sa clerk of court? Mao
gihapon, ang kaning mga butang na di-a dri
(referring to the rule), the clerk of court will
persuade the parties to come up with amicable
settlement. Ang kanang maong proceedings
didto sa clerk of court gi-tawag na ug
preliminary conference.
Unya marking of exhibits, labhi na jud kung
voluminous ang mga exhibits, labhi na ning civil
usahay daghan kayo ug dokumento, so
markahan na na daan sa clerk of court. Unya,
kung wa gyud settlement, so walay marking of
exhibits, wai stipulation of facts... balik nasad na
na sa korte. Unya mag-unsa man sad mo sa
korte? Mao gihapon, the judge itself now will
have to persuade the parties to come up with
amicable settlement. Kung dili jud, then mu-
proceed ug other matters here.
So, unsa may other matters if amicable
settlement is not possible?
1. The simplification of the issues.
The issues should be identified. Unsa
man gyud ang ato lalisan dri? Unsa gyud ato i-
prove? Because the issues are taken upon during
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the trial will guide or will limit the presentation of
evidence.
General rule: you are not allowed to
present evidence that will prove an issue that are
not mentioned in the pre-trial.
But in the course of the trial, a party
present evidence that is not an issue in the pre-
trial, that will be considered as a waiver. So, unsa
mai mahitabo ana. Ang mahitabo ana? There will
be a pleading that will be amended to conform
to the evidence presented. Mao nang ako gi-
mention before na there is such thing that
amendment of pleadings to conform to evidence.
Asa man na kuhaon ang mga issues? Ari
na kuhaon sa complaint ug answer, ug sa reply
kung dunay reply. Usually ana gikan sa complaint
ug answer. So, those allegation admitted by the
defendant in his answer will no longer be
considered as an issue. Unsa gani nang bisaya sa
issue? Lalisan! Kung imu na gani na gi-angkon
nganong lalisan paman na?
So, for example sum of money: kung ang
iya paghuwan gi-angkon, nganong lalisan paman
na? Kung wala niya gi-angkon then that would be
the issue, whether or not he obtained a loan.
2. Simpification of an issues
3. Then another is the necessity or desirability of
amendments to the pleadings.
If there is a possibility to amend the pleadings, in
the course of trial it was found out that there is
an indispensable party then the court will order
to amend the pleading in order to implead
indispensable party.
4. The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
It could be that there are allegation in the
complaint that nga deri sa answer gi-deny. Pero
possible ba na na during trial the defendant
changed his mind, instead of denying the
defendant will admit?
Unsa man nay stipulation of facts? Kanang
stipulation of facts mu-raise ka ug proposal for
admission.
For example, allegation didto sa complaint: That
sometime on December 15, 2010 the defendant
obtained a loan from the plaintiff in the amount
of shall we say 200,000. In his answer it was
denied. Now, during pre-trial, puede na nimu na
usbon pagpa-admit. I-propose na nimu na ipa-
admit na. So, unsaon man nimu? Ing-aniun nimu
pagsulti (how to make a proposal):
Proposal for admission
1. Will the defendant admits that on Dec.
15, 2010 he obtained a loan from the
plaintiff?
Imu ni gi-propose kay didto sa iya
answer wala man ni niya gi-admit na
allegation. Dili ka mu-propose kung gi-
admit na. Now what would be the answer
of the defendant? Now, the defendant
may through his counsel admit or deny.
So possible na mu-ingon siya, “we deny
your honor” or puede sad siya mu-ingon
na, “yes, we admit your honor”.
So possible na iya na gi-deny sa
iya answer but during pre-trial iya nang
gi-admit. Nganong ga-change man siya
ug huna-huna? Kay tingale didto sa
complaint wala sya kakita sa original,
usually machine copy raman ang i-
attached na dokumento sa promissory
note, unya karon gipakita siya sa original.
Ingon sya, “tinuod man gud ni”. Iya
gikunsulta ang defendant, “ unsa ba ni,
tinuod ba ni na nakahuwam ka?” “Bitaw
attorney tinuod na, attorney.” “okey, that
is admitted your honor.”
2. Will the defendant admit that the
amount of his loan obtained from the
plaintiff is 200,000?
Imu gud, gagmay-gagmayon gud, murag
nagpakaon ug bata. Ayaw didtsuha.
Primero imu ipa-admit kung naka-
obtained ba ug loan, kaduha ang amount
sa loan, sunod ani...
3. Will the defendant admit that upon due
he failed to pay the loan despite
demands?
4. That before filing the case in court the
matter was report to the office of
baranggay captain in barranggay where
the parties are residence.
Then muingon, “admitted!”. Ah kung
admitted ni tanan, then there will be no
hearing. What will happend? There will be
judgement based on the pleadings or the
court will now render decision. And most
probably it will be in favour of the
plaintiff.
Now, what is the effect if some of these
proposals are admitted and some are
not?
a. obtained a loan from
the plaintiff= ADMITTED
b. obtained from the
plaintiff is 200,000= ADMITTED
c. failed to pay the loan
despite demands= Only demand is
admitted
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c. matter was reported to
the office of baranggay captain=
ADMITTED
*Since it is admitted that he obtained a
loan, it is not necessary to present the
promissory note.
*Let say, that it was admitted that he
failed to pay the loan despite demands, it
is not necessary to present the demand
letter. Gi-admit naman nga wa siya
kabayad, nganong i-present paman nimu
ang demand letter?
*Of course kung gi-admit na ang pag-
obtain sa loan, ang lalisan nlang ang
pagbayad. Kung nakabayad ba or wala.
*So, if muingon ka nga that, “your honor
we received a demand but the defendant
just ignored it because he had already
paid his obligation.” So, receiving a
demand letter has been admitted but he
reason out that he had fully paid the
loan.
*Unya kani (pertaining to matter was
reported to the office of baranggay
captain), since it is admitted the
certification from Brgy. Captain is not
necessary to be presented.
*So, kung maayo ang imong kapresent sa
proposal, ang imong trabaho will be
lessen. And if you are the counsel of the
plaintiff mas sayun-sayon sa pagprove sa
imong cause of action, sa imong kaso. On
the other hand kung ikay ang defendant
unya nindot sad imu depensa mas
masayun-sayon pud, mas dako ug
chansa na mudaog ka with your
proposals.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
*So that’s the importance of proposal for
stipulation of facts. Stipulation meaning
agreed, sabuton ninyo.
We are now going to make stipulation or
admission of a document. Pananglitan di
sya mu-admit sa loan, ipakita ang
promissory note when the defendant
agreed on the genuiness of his
promissory note which contains the
signature of the defendant. Aw kun dili
siya mu-admit then i-offer nlang ni
afterwards. So, maminus nlang imu
trabaho during trial.
Then, another kung ikaw sa defendant,
nya ang imo depensa kai payment then
you will let the plaintiff admit the receipt.
5. Limitation of number of witnesses.
So for example the court ask, “plaintiff how many
witnesses will you present?” Miingon dayon ang
abogado, “ten witnesses, your honor”. “Nganong
ten witnesses man, nganong ni-abot man ug 10
ang imu witness?” Usahay man gud kaning
abogado tuyuon man niya ug daghan kai arong
magbalik-balik siya sa korte kai kada balik sa
korte mura man ug taxi.
“So, why are you going to present ten witnesses?
Who are you witnesses by the way?” “What will
they testify?” So, pananglitan si A mu-testify ani,
then si B mu-testify ani. So if the testimony of
C,D and E are just similar to that of A or B, then
you can dispense the three other witnesses. The
witnesses now are reduced to two.
Remember evidence? You learned that testimony
of witnesses are not numbered but weighed (dili
numeruhan kung pila kabuok imu witness but
timbangon).
The Court said that no witnesses can take the
witness stand in the course of the trial if the
witness is not mentioned in the pre-trial. Sa ato
pa during pre-trial your cards are already laid on
the table. Kinsa man imu witnesses? Unsa mai
dokumento nimu? Because documents that are
not marked are not also be allowed to be
presented during trial, unless there are valid
reasons why is it you wasn’t able to bring to the
court during pre-trial.
Nganong giing-ana manna, ang imong mga
witnesses, names, ang guise of the testimony,
ang imu mga dokumento gisulti na daan? In
order to encourage amicable settlement. Kai
kung kabalo naka na daan na kompleto na to
daan ang dokumento, nganong musukol paman
ka ug kaso, nganong diman ka makig-
compromise? So, for example nikiha ka for sum
of money,nganong musukol pa man? If I were you
compromise nlang unya kanang imung ibayad sa
abogado ipuno nlang ug bayad sa utang nimu.
Kanang singkwenta mil dako na na nga tabang
nimu, instead ibayad sa lawyer itigum nlang na.
6. The advisability of a preliminary reference of
issues to a commissioner
Sometimes there are matters subject to a
litigation which is beyond the expertise of the
court. For example, boundary dispute, a case of
recovery of ownership, a portion of the property
of the plaintiff is being encroached by the
defendant. So unsaon man na pagsettle sa court?
Gawas ra kung ang judge geodetic engineer. Pero
kung dili ,the court then will resort the matter to
the geodetic engineer for the settlement.
7. The propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist.
8. The advisability or necessity of suspending the
proceedings.
For example the party will say that they are still
on the process of working on the compromise
agreement, labhi na kung mag-inigsuonay ra
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unya ang giawayan kai ang katigayuanan na
gibilin sa ilang ginikanan, murag naas silay
puhunan. So, if the parties are still working out
for the terms and condition of the compromise
agreement that could be ground for suspension
of the proceeding.
“How long will it takes for you in order to come
up with the terms of your compromise
agreement?” Ingon dayon ang party,“Your honor
we will need may be two months because one of
our siblings will be coming.
9. Such other matters as may aid in the prompt
disposition of the action.
Such as marking of exhibits.
Then the trial dates sabutan daan. “Plaintiff, how
many witnesses do you have, 2 witnesses?” okey
i will give you 2 days. “How about you defendant,
how many witnesses do you have, 2 witnesses
also? Okey I will also give you two days”. So 4
days all in all, after that rebuttal if the plaintiff
want to present rebuttal.
Nganong sabutan man daan ang date? Kai ang
mga abogado busy kaayo.
Section 3. Notice of pre-trial. — The notice
of pre-trial shall be served on counsel, or
on the party who has no counsel. The
counsel served with such notice is charged
with the duty of notifying the party
represented by him.
NOTICE OF PRE-TRIAL
An siguruon pagserve sa notice kai ang mga
abogado. And it shall be the duty of counsel to
inform the same to their client. But usually ang
pamaagi sa korte ang duha, ang abogado ug ang
parties. Pero ang rules nagrequire na ang notice
adto lang sa counsel.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 4. Appearance of parties. — It shall
be the duty of the parties and their counsel
to appear at the pre-trial. The non-
appearance of a party may be excused only
if a valid cause is shown therefor or if a
representative shall appear in his behalf
fully authorized in writing to enter into an
amicable settlement, to submit to
alternative modes of dispute resolution,
and to enter into stipulations or admissions
of facts and of documents.
It shall be mandatory for the parties and their
counsel to appear in the pre-trial. The non-
appearance of a party may be excused only if a
valid cause is shown therefor or if a
representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations
or admissions of facts and of documents.
If a party fail to appear, for example the plaintiff,
he should set a representative. And take note
that it should be for a valid reason. If naay
representative but no valid reason, then his
absence will cause the dismissal of the case.
Thus your non- appearance must be for valid
reason and your representative must be fully
equipped with special power of Attorney and in
that SP this three must be present:
1. To enter into a
compromise agreement
2. To submit the case to
alternative mode of resolution
3. To enter stipulation of
facts.
Kung naay SP but the power is limited to enter
into compromise agreement, the 2 others are not
included then the case will be dismissed. And if a
party is a corporation the representative must be
duly equipped by a SP signed and authorized by
the Board of Directors.
Section 5. Effect of failure to appear. — The
failure of the plaintiff to appear when so
required pursuant to the next preceding
section shall be cause for dismissal of the
action. The dismissal shall be with
prejudice, unless other-wise ordered by the
court. A similar failure on the part of the
defendant shall be cause to allow the
plaintiff to present his evidence ex parte
and the court to render judgment on the
basis thereof.
So, what will happened if the plaintiff failed to
appear during Pre-trial? The case may be
dismissed, without prejudice to the prosecution
of the counter claim of the defendant. The
dismissal shall be with prejudice on the part of
the plaintiff, unless other-wise ordered by the
court.
How about if it is the defendant who fails to
appear? The plaintiff will present the evidence
ex parte and the court will render the judgement
on the basis thereof. He will not be consider in
default because he already filed an answer. So,
there would be ex parte hearing for the decision
of the evidence of the plaintiff and based on the
evidence presented the court will render
judgement.
Q: If the defendant fails to file an answer what
will happen?
A: he will be declared in default.
Q: Would that make the plaintiff automatically
win the case? Is he 100% sure that he will win
the case?
A: No. Because what will happened if the
allegation in the compliant are insufficient, will
still the court render decision in favour of the
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plaintiff even the allegations in the complaint is
insufficient? The answer is NO
The same story with the defendant who fails to
appear during trial. Although the court will allow
you to present evident ex parte, it doesn’t mean
that you are a sure winner because the court will
render decision based on the evidence
presented. If your evidence is presented is not
sufficient to support the findings that would
render the defendant liable, the case should be
dismissed.
Section 6. Pre-trial brief. — The parties shall
file with the court and serve on the adverse
party, in such manner as shall ensure their
receipt thereof at least three (3) days
before the date of the pre-trial, their
respective pre-trial briefs which shall
contain, among others:
(a) A statement of their willingness
to enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof;
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or
resolved;
(d) The documents or exhibits to be
presented stating the purpose
thereof;
(e) A manifestation of their having
availed or their intention to avail
themselves of discovery procedures
or referral to commissioners; and
(f) The number and names of the
witnesses, and the substance of
their respective testimonies.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Failure to file the pre-trial brief shall have
the same effect as failure to appear at the
pre-trial.
PRE-TRIAL BRIEF
What is require to be submitted by the parties
before the pare trial?
At least three days before the pre-trial, the
parties are require to serve the adverse party
and filed with the court a copy of their respective
pre-trial brief. Ang kaning pre-trial brief, outline ni
sa mga matters to be taken up during pre-trial.
What does the pre-trial brief contain?
1. A statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof.
Pila kaadlaw before i-submit ang pre-trial? Three
days.
2. A summary of admitted facts
proposed stipulation of facts.
Didto sa imong pre-trial brief ilisan na nimu daan
na kung unsa ang imu proposal . Ang imong i-
propose for admission kai ang katong mga facts
na gi-deny.
3. The issues to be tried or resolved.
Have you seen a pre-trial brief? Kung gusto mo
maging abogado, arong ma-encourage mo dunay
mga amigo na nagtrbaho na nagtrabaho sa law
firm, pangayo mo ug machine copy sa pre-trial
brief. Mao nang usa sa maka-encourage nimu na
maabogado ka.
4. The documents or exhibits to
presented stating the purpose thereof.
Ilista pud nimu kung unsay mga dockumento to
be present. Ilista nimu ang mga dokumento na
mu-prove sa imu case.
5. A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
6. The number and names of the witnesses,
and the substance of their respective
testimonies.
Mao na sa usa sa maka encourage nimu nga mag
abogado ka.
Then, documents and exhibits to be presented
stating the purpose, ilista pud nimu unsa ang
mga dokumento to be presented. Ilista nimu ang
mga dokumento nga mo prove sa imung kaso.
Sec 6: contiunation
(e) The manifestation of their having availed or
their intention to avail themselves of discovery
procedures or referral to commissioners.
and (f) The number and names of the witnesses and
the substance of their respective testimonies.
Ilista na nimu na daan. Look at the last
paragraph.
Failure to file pre trial brief shall have the same
effect as failure to appear at the pre trial. Sato pa
kung wala gane ka pre trial brief ayaw na lang
adto sa pre trial kay pareho ra nga wala ka
mitunga.
Q: So what happen if you appear during the pre
trial and you don’t have a pre trial brief?
A: If you are the plaintiff your case would be
dismissed. If you are the defendant then the
court will allow the presentation of the evidence
ex parte.
Unya sa kining pre trial sa mission sa pre trial
brief, this is principally the obligation of the
be counsel. So it means, pulpul najud kaau kang
abogadoha kung madismiss ang kaso kay wala ka
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ka submit ug pre trial brief. You can also expect a
disbarment case. That is gross neglect of duty.
Although mi ingun ko ninyo nga adunay korte
nga liberal kayo mosabot sa pre trial brief nga
pwde ra on the day of the trial do not follow it.
Follow the Rules. Bahala nag ikaw liberal ka sa
imung kontra mi file ka at least 3 days unya
imung kontra wala mi file, its up to you kung mo
strikto pud ka niya. I am just warning you to
follow what the law requires to avoid trouble later
on esp if you are the plaintiff.
SEC 7: RECORD OF PRE TRIAL
After the pre trial the court shall issue an order
stating what transpired during the pre trial
conference. The court now will summarize the
matters taken during the pre trial.
 What are the facts stipulated
 What are the documents marked by the
plaintiffs by the defendants
 The witnesses to be presented by the
plaintiff by the defendant
 What are the issues to be resolved
 The trial dates agreed by the counsel
These shall be stated in the so called pre trial
order which should be issued by the court after
pre trial conference.
Q: Suppose during pre trial, the counsels move to
defer (suspend/postponed) or just forgo with the
pre trial conference because according to them
they could not reach an amicable settlement. Is it
proper for the court to grant the motion because
they agreed that it would be just a waste of time
to conduct pre trial conference because the party
already exerted efforts Your Honor to arrive with
amicable settlement but we believe your honor
that compromise agreement is impossible? We
move that the pre trial conference be cancelled
and forgo and we’ll proceed to trial proper. Is it
proper for the court to grant the motion?
A: NO, pre trial is mandatory.
Q: What will happen if the Court grants the
Motion of the parties and there would be no pre
trail, would it nullify the proceeding because
there was no pre trial?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: Well, there is no case yet in that situation but
if there is the court proceeding will not be
nullified because of ESTOPPEL. But there is a
danger that the judge be subjected to disciplinary
action for ignoring the provisions of the Rules of
Court.
To summarize what are the instances that the
complaint be dismissed as penalty to the
plaintiff?
1. Sec. 3, Rule 17
2. Failure to appear at the pre trial
3. Failure to file pre trial brief
So, those are the very important rules of the Civil
Procedure. First 18 rules.
RULE 19
INTERVENTION
SEC 1: So, WHO MAY INTERVENE?
A person who has legal interest in the matter of
litigation or in the success of either of the parties
or an interest against both or is so situated as to
be adversely affected by a distribution or other
disposition of the property in the custody of the
court or the court officer thereof may with leave
of court be allowed to intervene in the action. So
those are the grounds for intervention. There are
for grounds for intervention. Kining intervention
is related to 3rd party complaint, kahinundum ba
mo sa 3rd party complaint? Kung ang plaintiff mi
file ug kaso ngadto sa defendant. Unya gatuo
siya nga di siya sad an kay ang sad an katong
lahing tawo nga wala gi apil sa kiha. Unsa man
iyang himuon? Mo file siyag leave to file a 3 rd part
complaint kay arun katong party nga para jud
niya maoy liable arun maapil sa kadtong kaso.
Ex:
Mibaligya kag sakyanan unya di man dali ma
transfer ang rehistro unya makadawat na ka
natural ang buyer kwaon na ang sakyanan. Ang
ebdensiya nga di na siyay tag iya ang Deed of
Sale. Ang problema ang rehistro sa LTO kay
imuha pang ngalan (seller). It will take 2 months
or 1 month. Now, nakadisgrasya imung awto nga
gibaligya. Who will be sued by the injured party?
A: YOU. Why man? You are still the registered
owner.
Q: Since you believe that you are no longer liable
because you already sold your car and you
believe you are not liable for the accident. So,
what are you going to do?
A: You are going to file leave to allow you to file a
3rd party complaint.
Now, this intervention is related to the 3 rd party
complaint. Pananglitan wala ka gi apil jud, walay
3rd party complaint and you believe that
apektado imung property. You are interested on
the subject matter of the litigation. Gusto ka
moapil, unsa imung buhaton?
Ex:
P filed a case for recovery of ownership over a
parcel of land against D. Gi ilugan nilang duha ay.
P vs. D. Now, si S who claimed to be the real
owner of the property, S: nganu gud tawng gailog
mo anang yuta-a ako may tinud anayng tag iya.
S learned nga adunay kaso, so, unsa iyang
buhaton? Wala may 3rd party complaint, alangan
man pud mo file ug 3rd party complaint si D. S’s
interest is at stake on the said property. What
should he do?
A: He will now file a Motion to Intervene. If
thereafter such is granted he will file either a
complaint in intervention or answer in
intervention. Kana kung ang iyahang interest
pabor niya. Kay kung siyay liable ay di siya uy,
mag hilum2x na lng siya. Pananglitan uroy ikaw
nakapalit sa sakyanan nga nakadasmag unya
ang gikiha ka yang registered owner unya
moingun d ai kag APIL KO BI.
If you say that you will intervene, your interest is
at stake and you want to litigate your interest to
include your interest in the action.
In what instances that one may file intervention?
1. When he has interest on the
subject matter of litigation
Ex:
Your parents died and left properties. In your
special proceeding, unsa to inyong nakat unan
unsay mahitabo kung mamatay inyong ginikanan
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unya naa silay mga kabtangan? Adunay i-appoint
nga ADMINISTRATOR or EXECUTOR. Dili na sila
ang mga anak usually laing tawo na. What will
happen if the heirs believe that wala tarunga pag
handle sa (ex. adunay probate sa will ngadto sa
korte, adunay money claims nga gi file ngadto sa
korte pero wala tarunga pagadala sa exec. Or
admin.)
The heirs now may intervene. They can file a
motion for intervention.
2. Success of either parties,
3. His interest against both
So inyon huna huna-on aning intervention a
starnger whose intereset is affected would like to
intereven. Just like third part complaint would
require leave of court.
What is the remedy of the movant if his motion
will be denied? His remedy is to file a separate
action. Or if he believes that his motion was
acted with grave abuse of discretion he may file
mandamus. To compel the court to admit his
motion or to allow him to interevene.
Intervention Interpleader
The party filing the No Interest over the
motion is interested property. Gusto lng
over the subject matter mahi bal-an
of the case interpleader kung kinsa
gyud nila ang tag-iya
Ancilliary action, An orginal action
meaning this
presupposes that there
is a pending case
Grounds for intervention:
1. Interevenor has a legal interest on
the matter under litigation.
2. The interevenor has a legal interest
in the success of EITHER parties;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
3. The intervenor has a legal interest
against both
4. The intervenor is so situated as to
be adversely affected by a by law.
distribution or other disposition of
property in the custody of the court
or of an officer
Sec. 2. Time to intervene.
The motion to intervene may be filed at any
time before rendition of judgment by the
trial court. A copy of the pleading-in-
intervention shall be attached to the
motion and served on the original parties.
What are the pleadings to be filed?
Sec. 3. Pleadings-in-intervention.
The intervenor shall file a complaint-in-
intervention if he asserts a claim against
either or all of the original parties, or an
answer-in-intervention if he unites with the
defending party in resisting a claim against
the latter.
Sec. 4. Answer to complaint-in-intervention.
The answer to the complaint-in
-intervention shall be filed within fifteen
(15) days from notice of the order admitting
sa
the same, unless a different period is fixed
by the court.
RULE 20
CALENDAR OF CASES
Section 1. Calendar of cases.
The clerk of court, under the direct
supervision of the judge, shall keep
a calendar of cases for pre-trial, for
trial, those whose trials were
adjourned or postponed, and those
with motions to set for hearing.
Preference shall be given to habeas
corpus cases, election cases, special
civil actions, and those so required
This is prepared by the clerk of court. Preference
shall be given to Habeas Corpus Cases. Unya
karon naa naman mga writ of amparo etc. pero
unahon ang Habeas Corpus.
Sec. 2. Assignment of cases.
The assignment of cases to the
different branches of a court shall be
done exclusively by raffle. The
assignment shall be done in open
session of which adequate notice
shall be given so as to afford
interested parties the opportunity to
be present.
Of course kung usa ra ka korte, single sala,
walay raffle.
RULE 21
SUBPOENA
What is a subpoena?
Section 1. Subpoena and subpoena
ducestecum.
Subpoena is a process directed to a
person requiring him to attend and
to testify at the hearing or the trial
of an action, or at any investigation
conducted by competent authority,
or for the taking of his deposition. It
may also require him to bring with
him any books, documents, or other
things under his control, in which
case it is called a subpoena
ducestecum.
There are 2 kinds of subpoena:
1. Subpoena ad testificandum- which is
an ordinary subpoena
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
2. Subpoena duces tecum- This is issued
when a person is required to bring with
him documents or object evidence to be
presented in court.
Sec. 2. By whom issued.
The subpoena may be issued by:
Sec. 4. Quashing a subpoena.
a) the court before whom the witness is
required to attend;
b) the court of the place where the
deposition is to be taken;
c) the officer or body authorized by law to
do so in connection with investigations
conducted by said officer or body; or
It could be conducted by competent authority-
example, NBI or administrative bodies.
d) any Justice of the Supreme Court or of
the Court of Appeals in any case or
investigation pending within the
Philippines.
When application for a subpoena to a
prisoner is made, the judge or officer shall
examine and study carefully such
application to determine whether the same
is made for a valid purpose.
No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
confined in any penal institution shall be
brought outside the said penal institution
for appearance or attendance in any court
unless authorized by the Supreme Court.
If the prisoner is sentenced to death, reclusion
perpetua or life imprisonment there must be an
authorization by the Supreme Court.
Sec. 3. Form and contents.
A subpoena shall state the name of
the court and the title of the action
or investigation, shall be directed to
the person whose attendance is
required, and in the case of a
subpoena ducestecum, it shall also
contain a reasonable description of
the books, documents or things
demanded which must appear to the
court prima facie relevant.
The court may quash a subpoena
ducestecum upon motion promptly
made and, in any event, at or before
the time specified therein if it is
unreasonable and oppressive, or the
relevancy of the books, documents
or things does not appear, or if the
person in whose behalf the
subpoena is issued fails to advance
the reasonable cost of the
production thereof.
Reason:
1. if it unreasonable
2. oppressive
3. relevancy of the books
4. documents or things does not appear
5. fils to advance the reasonable costs.
–So tagaannimogplete. Or pang
gastosapag pa reproduce
The court may quash a subpoena ad
testificandum on the ground that the
witness is not bound thereby. In
either case, the subpoena may be
quashed on the ground that the
witness fees and kilometrage
allowed by these Rules were not
tendered when the subpoena was
served.
Limitations in the effects of a subpoena
ad testificandum:
Pwedeka mu balibad if you are residing
more than 100 kilometers from the court.
This is called Viatory Right of
thewitness. This is only applicable in
a civil case. This cannot be invoked in a
criminal case. So if this is a criminal case
you cannot invoke this right or you
cannot refuse to testitify, you have to
testify even if you are living more than
100 kilometers away.
Sec. 5. Subpoena for depositions.
Proof of service of a notice to take a
deposition, as provided in sections
15 and 25 of Rule 23, shall
constitute sufficient authorization
for the issuance of subpoenas for
the persons named in said notice by
the clerk of the court of the place in
which the deposition is to be taken.
The clerk shall not, however, issue a
subpoena ducestecum to any such
person without an order of the
court.
Parehoranisiyasa other subpoena.
Sec. 6. Service.
Service of a subpoena shall be made
in the same manner as personal or
substituted service of summons. The
original shall be exhibited and a
copy thereof delivered to the person
on whom it is served, tendering to
him the fees for one day’s
attendance and the kilometrage
allowed by these Rules, except that,
when a subpoena is issued by or on
behalf of the Republic of the
Philippines or an officer or agency
thereof, the tender need not be
made. The service must be made so
as to allow the witness a reasonable
time for preparation and travel to
the place of attendance. If the
subpoena is ducestecum, the
reasonable cost of producing the
books, documents or things
demanded shall also be tendered.
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It shall be served the same as personal
and substituted service of summons. So
strictojudkaayu. So in other words it
cannot be served by mail.
Sec. 7. Personal appearance in court.
A person present in court before a
judicial officer may be required to
testify as if he were in attendance
upon a subpoena issued by such
court or officer.
What about if the person supposed to be
present is already present in court
kinahanglan pa basiyasubpoenahan? You
look at section 7. As if he were in
attendance of a subpoena issued by
such court.
Sec. 8. Compelling attendance.
In case of failure of a witness to
attend, the court or judge issuing
the subpoena, upon proof of the
service thereof and of the failure of
the witness, may issue a warrant to
the sheriff of the province, or his
deputy, to arrest the witness and
bring him before the court or officer
where his attendance is required,
and the cost of such warrant and
seizure of such witness shall be paid
by the witness if the court issuing it
shall determine that his failure to
answer the subpoena was willful and
without just excuse.
Kung diliganisiyamutunga despite the
issuance of the subpoena he can be
arrested.
Sec. 9. Contempt.
Failure by any person without
adequate cause to obey a subpoena
served upon him shall be deemed a
contempt of the court from which
the subpoena is issued. If the
subpoena was not issued by a court,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the disobedience thereto shall be
punished in accordance with the
applicable law or Rule.
Labinagyudngamakatumongkag judge
ngastricto. You will be kept in jail until the
time that you agree to testify. Failure by
any person without adequate cause to
obey to a subpoena is one of the grounds
to be held in indirect contempt. Look at
Rule 71 sec. 3f.
Sec. 10. Exceptions.
The provisions of sections 8 and 9 of
this Rule shall not apply to a witness
who resides more than one hundred
(100) kilometers from his residence
to the place where he is to testify by
the ordinary course of travel, or to a
detention prisoner if no permission
of the court in which his case is
pending was obtained.
Mao niatonggiingonganiha. (Look at
discussion in sec 4). Supreme
judangmuhatagug authority if the
prisoner has been sentenced to life
sentence, reclusion perpetua or death.
RULE 22
COMPUTATION OF TIME
Section 1. How to compute time.
In computing any period of time
prescribed or allowed by these
Rules, or by order of the court, or by
any applicable statute, the day of
the act or event from which the
designated period of time begins to
run is to be excluded and the date of
performance included. If the last day
of the period, as thus computed,
falls on a Saturday, a Sunday, or a
legal holiday in the place where the
court sits, the time shall not run
until the next working day.
Exclude the first. Include the last. And if
the last day falls on a holiday there will
be an automatic extension to the next
working day.
Sec. 2. Effect of interruption.
Should an act be done which
effectively interrupts the running of
the period, the allowable period
after such interruption shall start to
run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the
interruption shall be excluded in the
computation of the period.
Filing of motion such as motion to dismiss
the reglementary period to file answer
would be interrupted and would start to
run again after the denial of the moton
but the remaining time should not be less
than 5 days.
RULE 23
DEPOSITIONS PENDING ACTIONS
Section 1. Depositions pending action,
when may be taken.
By leave of court after jurisdiction
has been obtained over any
defendant or over property which is
the subject of the action, or without
such leave after an answer has been
served, the testimony of any person,
whether a party or not, may be
taken, at the instance of any party,
by deposition upon oral examination
or written interrogatories. The
attendance of witnesses may be
compelled by the use of a subpoena
as provided in Rule 21. Depositions
shall be taken only in accordance
with these Rules. The deposition of a
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person confined in prison may be
taken only by leave of court on such
terms as the court prescribes.
Rule 23 up to rule 28 are modes of
discovery. These are all about Modes of
Discovery. So Section 1 this is all about
Deposition pending action, meaning
there is already a case filed.
Now there are 2 kinds of deposition.
Deposition could be oral examination or
written interrogatories but the usual
depositionis oral examination. You know
kaning deposition simple ran a xa. Aron
ma sayonninyoug sabot, this is a
presentation of the testimony of witness
in advance. Ngano man? Kay nanagana n
aka daankay basin angimong witness dili
nan a ka-abot during trial kay basin
inigtawagnyasakasoinig trial 6 feet below
the ground nasiya ay
usanalangkawatiwalamupirma,
amoylupana and you believe that his
testimony is important. So mag pa
abotpaka?Dilinakay basin dilinanimosiya
ma abtan.
It is not necessary that the court acquires
jurisdiction over all defendants it is
sufficient that the court acquires
jurisdiction over any of the defendants
orover the property. You file leave of
court if the defendant to which the court
has acquired jurisdictionhas not yet filed
an answer. Kung wa pa maka file ug
answer. Sa ato pa kungna summons
naperowla pa nka file ug answer so you
file leave of court. Kung naka file naug
answer and you want deposition to be
taken leave of court is not necessary.
Ang subject saimong deposition could be
a party himself to the case or any person
who could be your witness to the case.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Naapudnicross examination. Mura
pudnixagga presenter kag witness sa
trial. If the adverse party minds to
conduct cross examination.
If human naang pre-trial can the party be
still allowed to secured deposition of the
witness? YES. Pajarillaga vs. Ca
October 31, 2008. There is no
prohibition exsit against the taking of the
deposition after pre-trial .in another case
of San Luis vs. Roxas. March 3, 2008.
A non-resident corporation can be
allowed to have ALL its witnesses all of
whom are foreigners to have a deposition
upon written interrogatories taken
outside of the Philippines to prove an oral
contract in order to avoid further delay.
Taking of deposition is not
mandatory. But it is encourage by the
court.
What are the benefits in having depositon? The
taking of deposition is useful asserting the truth
and preventing perjury.Fortune Corp vs. CA
January 19, 1994.Republic
vsSandiganBayan Nov. 21, 1991.
Sec. 2. Scope of examination.
Unless otherwise ordered by the
court as provided by section 16 or
18 of this Rule, the deponent may be
examined regarding any matter, not
privileged, which is relevant to the
subject of the pending action,
whether relating to the claim or
defense of any other party, including
the existence, description, nature,
custody, condition, and location of
any books, documents, or other
tangible things and the identity and
location of persons having
knowledge of relevant facts.
Any matter as long as they are not privilege and
as long as they are relevant to the subject matter
and not prohibited by the court.
As we have sadiang deposition is an advance
testimony just in case the witness will not be
available at the tme the case is called to trail.
Question: What will happen if the case is called
for trial and the witness is available?
Unsaonnaman to iyang testimony nganakuha
during the taking of the deposition?
Answer: when the witness is available for trial he
should testify. If he is not allowed to testify and
the party would just present his deposition, it
shall be considered as HEARSEY and
INADMISSIBLE in evidence.
Question: does it mean that his deposition would
have no use at all?
Answer is sec 4
Sec. 4. Use of depositions.
At the trial or upon the hearing of a
motion or an interlocutory
proceeding, any part or all of a
deposition, so far as admissible
under the rules of evidence, may be
used against any party who was
present or represented at the taking
of the deposition or who had due
notice thereof, in accordance with
any one of the following provisions:
(a) Any deposition may be used by
any party for the purpose of
contradicting or impeaching the
testimony of deponent as a
witness;
If a deponent will eventually testify his deposition
will be used to impeach his testimony. so if
lahiganiangiyanggisultisa deposition saiyang
actual testimony najud during trial. Katon
deposition gamiton to so that the court will not
believe him anymore.So if inconsistent gani
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possible to ngagamitonang deposition in order to
impeach him as a witness.Ngano possible man?
Because when he made the deposition he was
under oath.
(b) The deposition of a party or of
any one who at the time of
taking the deposition was an
officer, director, or managing
agent of a public or private
corporation, partnership, or
association which is a party may
be used by an adverse party for
any purpose;
Kung siya party mismoanggikuhaanug deposition.
His deposition could not only be used to impeach
his testimony but could also be used by the other
party as evidence for his case. You can call to the
witness stand your opponent as your witness.
Although you are taking a risk because he is an
adverse party you cannot expect that his
testimony will be favorable to you. Under the
rules of evidence you may ask leading questions.
Pero if ordinary witness ragani just like letter (a)
you can only impeach him as a witness. But
kungkini under letter (b) you can impeach him
and at the same time use him as your witness.
(c) The deposition of a witness,
whether or not a party, may be
used by any party for any
purpose if the court finds: (1)
that the witness is dead; or (2)
that the witness resides at a
distance more than one
hundred (100) kilometers from
the place of trial or hearing, or
is out of the Philippines, unless
it appears that his absence was
procured by the party offering
the deposition; or (3) that the
witness is unable to attend or
testify because of age,
sickness, infirmity, or
imprisonment; or (4) that the
party offering the deposition
has been unable to procure the
attendance of the witness by
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
subpoena; or (5) upon
application and notice, that
such exceptional circumstances
exist as to make it desirable, in
the interest of justice and with
due regard to the importance of
presenting the testimony of
witnesses orally in open court,
to allow the deposition to be
used; and
These are the reasons which necessitates the use
of deposition. But whne the witness is available
he should testify.
The testimony of the deposition can be used by
any party for any purpose.
Take note: (2) that the witness resides at a
distance more than one hundred (100)
kilometers from the place of trial or
hearing, or is out of the Philippines, unless
it appears that his absence was procured
by the party offering the deposition
If ang witness gikuhaansiyaug deposition kay mu
abroad na.nyawala man siyanadayonug abroad.
So ni-ingonkalakawnadayonnalanguglarga,
akoypletenimoaronlanggyud ma gamitangiyang
deposition. Pwede ban a?no because his absence
was procured by the party in bad faith.
(d) If only part of a deposition is
offered in evidence by a party, the
adverse party may require him to
introduce all of it which is relevant
to the part introduced, and any
party may introduce any other parts.
Take note:that deposition will not be only useful
during the trail but it could be also useful during
a hearing of a motion or an interlocutory
proceeding.
Sec. 5. Effect of substitution of parties.
Substitution of parties does not
affect the right to use depositions
previously taken; and, when an
action has been dismissed and
another action involving the same
subject is afterward brought
between the same parties or their
representatives or successors in
interest, all depositions lawfully
taken and duly filed in the former
action may be used in the latter as if
originally taken therefor.
Sec. 6. Objections to admissibility.
Subject to the provisions of section
29 of this Rule, objection may be
made at the trial or hearing to
receiving in evidence any deposition
or part thereof for any reason which
would require the exclusion of the
evidence if the witness were then
present and testifying.
During the taking of the deposition the adverse
party is notified and duting the actual taking of
deposition he could raise his objection but the
officer taking the deposition cannot rule on his
objection. The objections will just be noted and it
will be the court who will rule on the objections.
Sec. 7. Effect of taking depositions.
A party shall not be deemed to make
a person his own witness for any
purpose by taking his deposition.
If you take deposition upon this person it
does not mean that you really want him
to be your witness. It does not follow
Sec. 8. Effect of using depositions.
The introduction in evidence of the
deposition or any part thereof for
any purpose other than that of
contradicting or impeaching the
deponent makes the deponent the
witness of the party introducing the
deposition, but this shall not apply
Page | 96

to the use by an adverse party of a
deposition as described in
paragraph (b) of section 4 of this
Rule.
Mere use of depostition of the witness to
impeach his testimony does not make
him your witness.
Sec. 9. Rebutting deposition.
At the trial or hearing, any party
may rebut any relevant evidence
contained in a deposition whether
introduced by him or by any other
party.
Bisan pa kung ikay nag pakuha anang depostion
you are allowed to rebut. Lahi sa rules on
evidence kay ma bound man ka sa testimony sa
imong witness. Pero diri sa depostion kay you are
allowed to rebut.
Sec. 10. Persons before whom depositions
may be taken within the Philippines.
Within the Philippines, depositions
may be taken before any judge,
notary public, or the person referred
to in section 14 hereof.
Meaning any person who can administer oath as
agreed by the parties.
Sec. 11. Persons before whom depositions
may be taken in foreign countries.
In a foreign state or country,
depositions may be taken (a) on
notice before a secretary of embassy
or legation, consul general, consul,
vice-consul, or consular agent of the
Republic of the Philippines; (b)
before such person or officer as may
be appointed by commission or
under letters rogatory; or (c) the
person referred to in section 14
hereof.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What about if the deponent is in a foreign
country? Sec 11 ng answer.
What if walay consular office or embassy anang
lugara? The courts will be constrained to seek
assistance from the courts of that place. Mao ni
ang gitawag nga letters rogatory.
Sec. 12. Commission or letters rogatory.
A commission or letters rogatory
shall be issued only when necessary
or convenient, on application and
notice, and on such terms and with
such direction as are just and
appropriate. Officers may be
designated in notices or
commissions either by name or
descriptive title and letters rogatory
may be addressed to the appropriate
judicial authority in the foreign
country.
This is a mere request. Ang iyaha ra jud bayad
ani, is that there is a similar circumstance is ma
reciprocated ang request. If dili sila musugot
didto aw.. nah.. wala kay mahimo because this is
a mere request.
What is Commission- is authorized in a country to
take depostion. Mao ni siay ang authoority nga
ihatag sa consul or embassy to take depostion.
Sec. 13. Disqualification by interest.
No deposition shall be taken before
a person who is a relative within the
sixth degree of consanguinity or
affinity, or employee or counsel of
any of the parties; or who is a
relative within the same degree, or
employee of such counsel; or who is
financially interested in the action.
No just anybody can be a deposition officer. Look
at the disqualifications.
Sec. 14. Stipulations regarding taking of
depositions.
If the parties so stipulate in writing,
depositions may be taken before any
person authorized to administer
oaths, at any time or place, in
accordance with these Rules, and
when so taken may be used like
other depositions.
Aside from notary public authorized to take
oaths, the mayor is also auhtorized to take oaths.
If the parties agreed then it is allowed.
Sec. 15. Deposition upon oral examination;
notice; time and place.
A party desiring to take the
deposition of any person upon oral
examination shall give reasonable
notice in writing to every other party
to the action. The notice shall state
the time and place for taking the
deposition and the name and
address of each person to be
examined, if known, and if the name
is not known, a general description
sufficient to identify him or the
particular class or group to which he
belongs. On motion of any party
upon whom the notice is served, the
court may for cause shown enlarge
or shorten the time.
This is oral examination. Mura ranig nag conduct
og direct examination.
RULE 23
Depositions Pending Actions
Rule 23 Sec. 16 these are the limitations on
the conduct depositions
SEC. 16. Orders for the protection of parties
and deponents.—After notice is served for
taking a deposition by oral examination, upon
motion seasonably made by any party or by the
person to be examined and for good cause
shown, the court in which the action is pending
may make an order that the deposition shall not
be taken, or that it may be taken only at some
Page | 97

designated place other than that stated in the
notice, or that it may be taken only on written
interrogatories, or that certain matters shall not
be inquired into, or that the scope of the
examination shall be held with no one present
except the parties to the action and their officers
or counsel, or that after being sealed the
deposition shall b opened only by order of the
court, or that secret processes developments, or
research need not be disclosed, or that the
parties shall simultaneously filed specified
documents or information enclosed in sealed
envelope to be opened as directed by the court;
or the court may make any other order which
justice requires to protect the party or witness
from annoyance, embarrassment, or oppression.
Again these are the limitations that the court
may give upon motion by any party.
Sec. 17, the taking of the depositions shall be
recorded and the witness shall be put under oath.
Aron sayon raninyo pag huna2x, kanang
deposition pareho ra gyud na ug naa sa korte.
Deposition is the hearing in advance, that is the
taking of the testimony of the witness in advance
of the hearing. Mao ragyudna. The advserse
party shall be given the opportunity to cross
examine and the other party to object.
Parehoragyudnasa actual hearing, the only
difference is that the deposition officer
CANNOT RULE ON THE OBJECTION. The
deposition officer shall just note or shall just put
on record the objections. So for example
niingonang adverse counsel, “OBJECTION YOUR
HONOR, HEARSAY”,
kanangsakortemuingonmanang judge, okay
overruled or sustained, perodidtosadepositondili.
Muingon ran a siya, objection, noted.
Then who will rule on the objection. The objection
shall be ruled by the court later on when the
copy of the deposition shall be transmitted to the
court and it will be the judge who will rule in the
objection.
SEC. 17. Record of examination; oath;
objections.—The officer before whom the
deposition is to be taken shall put the witness or
oath and shall personally, or by some one acting
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
under his direction and in his presence, record
the testimony of the witness. The testimony shall
be taken stenographically unless the parties
agree otherwise. All objections made at the time
of the examination to the qualifications of the
officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the
conduct of any party, and any other objection to
the proceedings, shall be noted by the officer
upon the deposition. Evidence objected to shall
be taken subject to the objections. In lieu of
participating in the oral examination, parties
served with notice of taking a deposition may
transmit written interrogatories to the officers,
who shall propound them to the witness and
record the answersverbatim.
SEC. 18. Motion to terminate or limit
examination.—At any time during the taking of
the deposition, on motion or petition of any party
or of the deponent and upon a showing that the
examination is being conducted in bad faith or in
such manner, as unreasonably to annoy,
embarrass, or oppress the deponent or party, the
court in which the action is pending or the
Regional Trial Court of the place where the
deposition is being taken may order the officer
conducting the examination to cease forthwith
from taking the deposition, or may limit the
scope and manner of the taking of the
deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order
of the court in which the action is pending. Upon
demand of the objecting party or deponent, the
taking of the deposition shall be suspended for
the time necessary to make a notice for an order.
In granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as
the court may deem reasonable.
That is if the taking of depositions has
irregularity. Angnakadeperensiya man gudani,
kun didto pa nisakorte kung dunapani harass2x
pwedemanii-cite ug contempt sa court or sa
judge and problemaanikaydilimanisiya judge,
deposition officer ra man nisiya, if there is
irregularity, if the deponent believe that he is
being harassed it can seek remedy from the
court where the case is pending or from the rtc
where the case is pending. He can ask that the
taking of the deposition be stopped or the scope
of the taking of the deposition be limited, that
particular topic will not be taken up.
SEC. 19. Submission to witness; changes;
signing.—When the testimony is fully
transcribed, the deposition shall be submitted to
the witness for examination and shall be read to
or by him, unless such examination and reading
are waived by the witness and by the parties.
Any changes in form or substance which the
witness desires to make shall be entered upon
the deposition by the officer with a statement of
the reasons given by the witness for making
them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of
the illness or absence of the witness or the fact
of the refusal to sign together with the reason
given therefor, if any, and the deposition may
then be used as fully as though signed, unless on
a motion to suppress under section 29 (f) of this
Rule, the court holds that the reasons given for
the refusal to sign require rejection Of the
deposition in whole or in part.
After the taking of the deposition, the taking of
the notes shall be transcribe. Stenographic mana
so di ta kabasaana, so i.transcribe and the same
shall be submitted to the witness or read kung
tan.aw niya mao ba gyud na siya ang iyang
gipang-testigos, unless iyagi waive. Thereafter,
he shall sign the stenographic notes, by affixing
his signature to the stenographic notes, that
means he affirms, he certifies to the correctness
of the taking. If he wants to make changes, if he
thinks there are inaccuracies he can make
corrections or changes.
SEC. 20. Certification and filing by officer.—
The officer shall certify on the deposition that the
witness was duly sworn to by him and that the
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deposition is a true record of the testimony given
by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title
of the action and marked “Deposition of (here
insert the name of witness)” and shall promptly
file it with the court in which the action is
pending or send it by registered mail to the clerk
thereof for filing.
SEC. 21. Notice of filing.—The officer taking
the deposition shall give prompt notice of its
filing to all the parties.
The deposition officer shall give notice to the
parties that he has filed the transcript to the
court, then upon payment, the deposition officer
shall furnish any party or to the deponent… Sec
22 gisumpayniya
Sec. 22 Furnishing copies.--Upon payment of
reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
the deponent.
SEC. 23. Failure to attend of party giving
notice.—If the party giving the notice of the
taking of a deposition fails to attend and proceed
therewith and another attends in person or by
counsel pursuant to the notice, the court may
order the party giving the notice to pay such
other party the amount of the reasonable
expenses incurred by him and his counsel in so
attending including reasonable attorney’s fees.
Sec. 23, this is the section where katong person
ga.request for deposition dilimutungaunyakatong
adverse party mutunga. Nakagastogyud to
siyaugplete, unyakungnagdala to siyaugabugado,
nakagasto to siya, di man to
mu.andarangkotsesaabugado kun wa to
siyaybayad pang gasolina. So unsa may
buhatonana? The party requesting the deposition
maybe ordered by the court to
reimburse.Parehorapuddidtosakorte,
angimongkaso, gpaset for hearing
unyawamadayunang hearing tungodkay absent
ka, you maybe required to reimburse the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
expenses of the counsel. Just imagine
kungtoadidtosaprobinsiya, for example, Cebu
base unyapa.adtounkas Davao,
pa.reimbursonkasagasto, pila nana. So di
gyudnamaayongmagsigeug absent.
Ugkanangsagadsamgaabugadongacgeg absent,
kato sad
nangpala.absentsaklasenyanaswertehansa bar.
[hahaha]
If the party requested for the taking of the
deposition, failed to give notice to the
witness/deponent, iyanggipahibawangpikasna
nay taking sa deposition unyadiay to wadidtoang
witness kaywa man kahibaw, so dilimadayun,
maogihapon, penalty, the same sa Sec. 23.
SEC. 24. Failure of party giving notice to
serve subpoena.— If the party giving the
notice of the taking of a deposition of a witness
fails to serve a subpoena upon him and the
witness because of such failure does not attend,
and if another party attends in person or by
counsel because he expects the deposition of
that witness to be taken, the court may order the
party giving the notice to pay to such other party
the amount of the reasonable expenses incurred
by him and his counsel in so attending including
reasonable attorney’s fees.
This is the other kind of deposition. There are
two kinds of deposition; ORAL OR WRITTEN
INTERROGATORIES. Now, WRITTEN
INTERROGATORIES, by its name, the
interrogatories are in writing, unsa may
ipangutanasa witness in writing naunya the
answer also of the witness shall be in writing. By
the way nay bag.ong rule karunmu.take effect
karung January 2013, angmga witnesses,
kananggitawagug JUDICIAL AFFIDAVIT, angmga
witnesses dilinapatestigusondirisa MTC, first level
courts ug oral in the form of questions and
answers sa direct examination. Kani.adtogud,
ing.naon pa man “MR. WITNESS SOMETIME XXX
WHERE WERE YOU” answer sa witness “I WAS AT
XXX” “WHAT WERE YOU DOING AT THAT
TIME”?,karundilina. The counsel offering the
witness shall reduce the direct examination into
questions and answers into writing.
Mao rapudnasiyasa written interrogatories. So
the party who wants to take the deposition shall
prepare questions that would be asked to the
witness and the witness shall answer the
questions also in writing. Then what about the
adverse party, is it not a deprivation of the right
to confront the witness? The answer is NO bec he
is also given the chance to make a CROSS-
INTERROGATORIES. Mura rapudnasiyaug cross
examination so you cannot say you are deprived
of the right to confront the witness. That is the
ruling of the Supreme Court in the case of San
Luis vs. Rojas- 3/3/2008.
CASE SUMMARY :Bec the adverse party here
complained that he was deprived of his right to
cross examine. According to SC, No because you
are given the opportunity to make your cross-
interrogatories.
Now what is the advantage of written
interrogatories over oral deposition? Kaning
written interrogatories mas ekonomiyani, mas
makasavekag money anibec the parties asking
the questions need not go there angiya rang
buhaton, magpadalarasiya kung kinsa may
deposition officer, angiyang questions iya rang
ihatagsa deposition officer unyaang deposition
officer mao ray mangutana. Just imagine kung
angimong witness/deponent toasa abroad,
pananglitansa New York, Ikawna party muadtoka
and counsel muadtopud in order to conduct oral
deposition dako kayo kaggasto. Whereas
makapointlangkaug deposition officer
ngatagadidtounyaimongmga questions
ipadalalangniyaunyasiya nay mangutanadidtosa
deponent, dakong savings diba. Mao
nasiyaygamitsa written interrogatories. The
adverse party can also ask cross interrogatories
and the answer shall also be in writing.
Kaning deposition dili kayo ta familiar ani, nganu
man
kaytagsaramangabugadomugamitani.Nganutags
araman? Ganahan sad angabugado magbalik2x
didtosakorte, unya kana ganing us aka direct
examination ganahansiyana hasta
ka.upatbalik.balikon. Diliganahanmahumandayun
in one setting nganu man, parana pay kobra esp.
if good paying ang client [heehehe joke].
Page | 99

Whereas in deposition, kausara man na di
manani mu balikon, humanon man gydnanimo.
SEC. 25. Deposition upon written
interrogatories; service of notice and of
interrogatories.—A party desiring to take the
deposition of any person upon written
interrogatories shall serve them upon every
other party with a notice stating the name and
address of the person who is to answer them and
the name of descriptive title and address of the
officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so
served may serve cross-interrogatories upon the
party proposing to take the deposition. Within
five (5) days thereafter, the latter may serve re-
direct interrogatories upon a party who has
served cross-interrogatories. Within three (3)
days after being served with re-direct
interrogatories, a party may serve recross-
interrogatories upon the party proposing to take
the deposition.
SEC. 26. Officers to take responses and
prepare record.—A copy of the notice and
copies of all interrogatories served shall be
delivered by the party taking the deposition to
the officer designated in the notice, who shall
proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the
testimony of the witness in response to the
interrogatories and to prepare, certify, and filed
or mail the deposition, attaching thereto the
copy of the notice and the interrogatories
received by him.
Unyaunsa may coverage sa written
interrogatories. Aw parehorapudsa oral
deposition. Katongmga limitations under sec. 16
maoragihapontoh, the same limitations maybe
given by the court in the taking of written
interrogatories as well as the manner provided in
sec 17, 19 and 20
After the taking of the deposition, the deposition
officer shall file the answer of the deposition of
the witness in court and shall notify the parties
regarding the filing.
SEC. 27. Notice of filing and furnishing
copies.—When a deposition upon interrogatories
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
is filed, the officer taking it shall promptly give
notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment
of reasonable charges therefor.
SEC. 28. Orders for the protection of parties
and deponents.—After the service of the
interrogatories and prior to the taking of the
testimony of the deponent, the court in which the
action is pending, on motion promptly made by a
party or a deponent, and for good cause shown,
may make any order specified in sections 15, 16
and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken
before the officer designated in the notice or that
it shall not be taken except upon oral
examination.
Mao niakonggisultiganiha,mga limitations ni. Or
the court also, even if the party the requesting
party wanted the taking of written
interrogaroties, the court upon justifiable reasons
may order that it shall be by oral deposition. So
that is within the discretion of the court. O, you
look at the last phrase…Vice versa, maopudsa
oral deposition, if the requesting party wants the
taking of the deposition to be taken orally, for
justifiable reasons, the court may order that it
shall be through written interrogatories.
SEC. 29. Effect of errors and irregularities
in depositions.—
(a) As to notice.—All errors and
irregularities in the notice for taking a deposition
are waived unless written objection is promptly
served upon the party giving the notice.
(b) As to disqualification of officer.—
Objection to taking a deposition because of
disqualification of the officer before whom it is to
be taken is waived unless made before the
taking of the deposition begins or as soon
thereafter as the disqualification becomes known
or could be discovered with reasonable diligence.
(c) As to competency or relevancy of
evidence.—Objections to the competency of a
witness or the competency, relevancy, or
materiality of testimony are not waived by failure
to make them before or during the taking of the
deposition, unless the ground of the objection is
one which might have been obviated or removed
if presented at that time.
(d) As to oral examination and other
particulars.—Errors and irregularities occurring at
the oral examination in the manner of taking the
deposition, in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at the
taking of the deposition.
(e) As to form of written interrogatories.—
Objections to the form of written interrogatories
submitted under sections 25 and 26 of this Rule
are waived unless served in writing upon the
party propounding them within the time allowed
for serving succeeding cross or other
interrogatories and within three (3) days after
service of the last interrogatories authorized.
(f) As to manner of preparation.—Errors
and irregularities in the manner in which the
testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the
officer under sections 17, 19, 20 and 26 of this
Rule are waived unless a motion to suppress the
deposition or some part thereof is made with
reasonable promptness after such defect is, or
with due diligence might have been, ascert
If there are errors or irregularities in the taking of
the deposition, what will happen? Now if there
are errors and irregularities, if there are no
objections, most of these errors and irregularities
shall be deemed waived, okay look at
letter a…as to notice if there are errors and
irregularities for the taking of the notice and
there is no objections, waived; as to the
disqualification of the officer taking, waived if
there is no objection.
However, THERE IS NO WAIVER, if there is
objection as to the COMPETENCY OF THE
WITNESS, the same would not be
considered waived, as well as to the
relevancy and materiality of the testimony,
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even if there is no objection during the
taking, the same is not considered waived.
That is the only one that cannot be waived.
Regarding the errors and irregularities occurring
in the in the examination, in the manner of
taking, in the form of the questions, in the oath
or affirmation, in the conduct of the parties and
errors of any kind, which might be omitted,
removed or obscured, the same are waived.As to
the form of interrogatories, if there is no
objection, waived. As to the manner the
testimony is transcribed, subscribed, certified,
the same would also be waived.
So pananglitan, nay errors sapag transcribe sa
testimony sa witness mahitabo man
gyudnamusahay especially if dili kayo expert and
stenographer, dili kayo paspasang stenographer,
dunaysayopsapag transcribe, sapagrecordniya,
so if dilinimu I called up iya attention and you will
not ask for correction then it maybe considered
waived.
Mao pudnadidtosakorte, kinahanglanna, mag
tan.aw judka from time to time you look at the
TSN. For example magpresentkag witness,
dibakanang testimony sa witness,
itranscribemana. You should from time to time
look at the TSN and look at if the same are
faithful recording of the testimony of the witness
kay basin, dunaygisultididtosa witness material
kayo saimongkasoperowala ma record. You cant
complain that on appeal. So
imonanangtan.awondaanbec if not, waived. The
same also with deposition, if you do not ask for
corrections bec there are portions of the
testimony of the witness which are omitted, then
the same is considered waived.
RULE 24
Depositions Before Action or Pending
Appeal
What we have discussed, under Rule 23 is
Deposition Pending Action. Question, before a
case is filed, you are now intending to file a case,
and your witness is sick and he is already at a
pre-departure area and you believe that he could
no longer make it at the trial but the problem is
you have not yet filed any case, you are still
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
preparing, labina kung complicated and kaso,
diliramannasayunpagpanguhaugebidensiya, so
you are still in the process of securing the
document, and you are concern of the witness
especially if it is a vital witness, what are you
going to do. Now, RULE 24 is the remedy. You are
going to file a petition for the taking of the
deposition, PETITION HA, NOT A MOTION.
When you say a MOTION, timan.inininyo
elementary kayo ni, that presupposes that
there is already a case filed in court. So if
there is already a case filed in court, you
already file a MOTION FOR THE TAKING OF
ORAL DEPOSITION. But if there is no case
filed, you are going to file a PETITION FOR
DEPOSITION.
SECTION 1. Depositions before action;
petition.—A person who desires to perpetuate
his own testimony or that of another person
regarding any matter that may be cognizable in
any court of the Philippines, may filed a verified
petition in the court of the place of the residence
of any expected adverse party.
Look at the venue “court of the place of the
residence of any expected adverse party”.
Muragsa barangay, adtokamufilesa kung diin nag
puyoangimongkontra, umaabotnakontra.
By the way kaning deposition, RULE 23, 24,
THIS IS ONLY APPLICABLE TO CIVIL
CASES.Duna bay puparehosa deposition sa
criminal case? Duna pero toa didto sa CrimPro
somewhere in Rule 115, didtos a criminal cases
angtawagniyadili deposition kung dili
CONDITIONAL EXAMINATION pero ang iyang
epekto and iyanghitsurapupareharaug
deposition. Advance gihaponsiya, advance giving
of testimony but the procedures are more or less
different.
SEC. 2. Contents of petition.—The petition
shall be entitled in the name of the petitioner
and shall show: (a) that the petitioner expects to
be a party to an action in a court of the
Philippines but is presently unable to bring it or
cause it to be brought; (b) the subject matter of
the expected action and his interest therein; (c)
the facts which he desires to establish by the
proposed testimony and his reasons for desiring
to perpetuate it; (d) the names or a description
of the persons he expects will be adverse parties
and their addresses so far as known; and (e) the
names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take
the depositions of the persons to be examined
named in the petition for the purpose of
perpetuating their testimony.
SEC. 3. Notice and service.—The petitioner
shall serve a notice upon each person named in
the petition as an expected adverse party,
together with a copy of the petition, stating that
the petitioner will apply to the court, at a time
and place named therein, for the order described
in the petition. At least twenty (20) days before
the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided
for service of summons.
Lahi ni siya, petition naatong na.agi.an sa Rule
14. Kay sa Rule 14, katongsa Rule 14, pagservesa
summons, igorakamufilesaimong complaint, you
are not allowed by the Rules to furnish a copy to
your opponent, but here in Sec 24, if you file a
petition for the taking of the deposition, under
Sec 3 you are required to furnish a copy of the
petition and to give notice, to the expected
adverse party, together with a copy of the
petition.
Saato pa, there will be no summons, the court
will not issue any summons, but it will be the
duty of the petitioner to furnish a copy of his
petition to the adverse party. Then the court
upon examination of the petition and the court is
satisfied by the reasons given, then it shall issue
an order for the perpetuation of the testimony in
order prevent the failure or delay of justice.
SEC. 4. Order and examination.—If the court
is satisfied that the perpetuation of the
testimony may prevent a failure or delay of
justice, it shall make an order designating or
describing the persons whose deposition may be
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taken and specifying the subject matter of the
examination and whether the depositions shall
be taken upon oral examination or written
interrogatories. The depositions may then be
taken in accordance with Rule 23 before the
hearing.
SEC. 5. Reference to court.—For the purpose
of applying Rule 23 to depositions for
perpetuating testimony, each reference therein
to the court in which the action is pending shall
be deemed to refer to the court in which the
petition for such deposition was filed.
Then what would be the use of deposition, the
same, …
SEC. 6. Use of deposition.—If a deposition to
perpetuate testimony is taken under this Rule, or
if, although not so taken, it would be admissible
in evidence, it may be used in any action
involving the same subject matter subsequently
brought in accordance with the provisions of
sections 4 and 5 of Rule 23.
We just said that there could be deposition before
the filing of the case under Rule 24. Also under
Rule 24, this Rule also provides that we could
take deposition pending appeal. Even if the
proceedings in a case has already been
terminated, and that your case is already
pending appeal, you can ask that deposition be
taken, okay, napildinakaunyaimonggi.apilar,
while the case is pending, pwedekakapangayo,
ka file ug motion to take deposition.
The you might ask, in what instance for example
that the taking of deposition would find
importance? Nganumagkuha pa man ug
deposition nahumannaman, didtosa appeal
wanamay trial. Nganu man?Dia ay. For example,
you found a newly discovered evidence, such as
witness, you believe that the witness is dying or
would not be available because he is going
abroad, with no definite date of return.
Unsaonmananimo?If you ask for new trial,
unsaonmananimopag pa testigosniya? You find
the importance of Rule 24, you can file a motion,
to take deposition pending appeal.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
And the court if it founds that the taking of the
testimony, to avoid failure or delay of justice, it
may allow the taking of the deposition.
SEC. 7. Depositions pending appeal.—If an
appeal has been taken from a judgment of a
court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the
time therefor has not expired, the court in which
the judgment was rendered may allow the taking
of depositions of witnesses to perpetuate their
testimony for use in the event of further
proceedings in the said court. In such case the
party who desires to perpetuate the testimony
may make a motion in the said court for leave to
take the depositions, upon the same notice and
service thereof as if the action was pending
therein. The motion shall state (a) the names and
addresses of the persons to be examined and the
substance of the testimony which he expects to
elicit from each; and (b) the reason for
perpetuating their testimony. If the court finds
that the perpetuation of the testimony is proper
to avoid a failure or delay of justice, it may make
an order allowing the depositions to be taken,
and thereupon the depositions may be taken and
used in the same manner and under the same
conditions as are prescribed in these Rules for
depositions taken in pending actions.
RULE 25
Interrogatories to Parties
At one glace, you might say that this is a
repetition of what we have discussed.
Under Rule 25, the
interrogatories here ARE LIMITED TO THE
PARTIES. Katongsa Rule 23 ug 24, applicable to
siyasaparies and to any witness. Another, sa Rule
23 ugsa Rule 24, deposition officer is required,
dunay referee dunayhuwis, huwis. But under Rule
25, dretsogyudnimoang question dretsodidtosa
parties. So maoniang Sec. 1. So the written
interrogatories, shall be send directly to the
parties,mao nay usasamgakalainansa written
interrogatories naatonggidiscusssa Rule 23 ugsa
Rule 24.
SECTION 1. Interrogatories to parties;
service thereof.—Under the same conditions
specified in section 1 of Rule 23, any party
desiring to elicit material and relevant facts from
any adverse parties shall file and serve upon the
latter written interrogatories to be answered by
the party served or, if the party served is a public
or private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
So when are you going to file? The same rule in
the taking of oral deposition. If there is no answer
filed, then you have to ask for leave of court, if
answer has already been filed, no need to ask for
leave of court. [wa kayo
kokasabotunsaiyagi.mean, sowee]
SEC. 2. Answer to interrogatories.—The
interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person
making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen (15)
days after service thereof, unless the court, on
motion and for good cause shown, extends or
shortens the time.
Now, what is the effect to the defendant to whom
written interrogatories, are served and the
defendant will not answer them, will ignore it?
The defendant can be declared in default, or he
can be cited by the court for contempt.
Now what is the effect if the defendant who
submitted written interrogatories to the plaintiff
and the plaintiff will not answer the written
interrogatories submitted by the defendant. The
effect is that the complaint maybe dismissed by
the court or he can be cited for contempt.
Usbonnako ha, kaning written interrogatories,
dilipararanisa plaintiff, either parties.
SEC. 3. Objections to interrogatories.—
Objections to any interrogatories may be
presented to the court within ten (10) days after
service thereof, with notice as in case of a
motion; and answers shall be deferred until the
objections are resolved, which shall be at as
early a time as is practicable.
Page | 102

The other party may raise objections, against the
written interrogatories if there are questions
objectionable. And these objections shall be
presented to the court w/in 10 days after
receiving the interrogatories. Pending the ruling/
while waiting for the ruling of the court for his
objections, the submission for his answer to the
written interrogatories shall be held in abeyance
until the court shall resolve his objections.
A party can serve only 1 set of written
interrogatories, dilipwedeitagi-tagi or instalment,
usalang unless there is leave of court.
SEC. 4. Number of interrogatories.—No party
may, without leave of court, serve more than one
set of interrogatories to be answered by the
same party.
Then another question, can this mode of
discovery availed of by the party even if
has availed already of deposition under
Rule 23 & 24? YES bec the modes of
discoveries according to SC are cumulative
not alternative or mutually exclusive of
each other. Pwedenimoi-avail tanankung
gusto ka.
SEC. 5. Scope and use of interrogatories.—
Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23,
and the answers may be used for the same
purposes provided in section 4 of the same Rule.
So what could be the use of the written
interrogatories, ah the same… same with
deposition. Any matter so long as not privilege
or prohibited by court. Purpose same gihapon.
SEC. 6. Effect of failure to serve written
interrogatories.—Unless thereafter allowed by
the court for good cause shown and to prevent a
failure of justice, a party not served with written
interrogatories may not be compelled by the
adverse party to give testimony in open court, or
to give a deposition pending appeal.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What would be the effect if party failed to serve
written interrogatories “ a party not served with
written interrogatories may not be compelled by
the adverse party to give testimony in open court
or to give a deposition pending appeal.
Kini man gung sa civil case, lahi man gudnisa
criminal. Akoronmukihanimo, inig trial ana,
pwede ka nako pagson nga patestiguson para
nako, sa criminal case dilimana, mukihakonimoug
criminal, I cannot compel you to testify in my
favour . Of course sa civil case kaykontra man ta
I cannot expect that you favorable testimony
gikannimo, kontragud ta, peromakakuhako, kung
siguradokonamakakuhaug favorable testimony
gikannimo,
pwedekomagpapugposnimonapalingkuronsa
witness stand. Unya kung mamakak ka ana kay
ma contempt man ka. Lahisa criminal case bec
an accused has the right not to take the witness
stand bec of his right to remain silent.
Now connecting it dirisa Rule 25, a party not
served with written interrogatories may not be
compelled by the adverse party to give testimony
in open court or to give a deposition pending
appeal.- Sa ato pa kung ikaw akong gikiha civil,
wakoka serve nimoug written interrogatories, I
could not compel you to take the witness stand,
even if I could expect a favorable testimony from
you. That is the effect if I fail to serve written
interrogatories.
Nganuingon man ani, nganuduna may silotang us
aka party nadili mu serve ug written
interrogatories. In order to encourage the parties
to avail of this mode of discovery.Kani man
gudmga mode of discovery, para man gud ni
mapadali ang kaso, kung ang imong ebidensiya
na ana sa lamesa, kolokoy na jd ka kung musukol
pa kana klaro na kang pildi. So unsa may
buhatonnimoklaro man judnawakaydag.anan, for
example karun promissory note, naa jud ng pirma
nimo, unya notarized pa, musukol pa kagkaso?
Unsa may buhatonnimo, compromise nalang,
settle nalang. Mao pdnadirisa modes of discovery
that is the purpose of the rules.
Again, usbonnako, there is no deposition officer,
you raise directly your question to the party
RULE 26
Admission by Adverse Party
We have learned that a defendant after receiving
summons has to file his answer. Unya in his
answer he has to specifically deny the material
allegations in the complaint, and if the cause of
action of the complaint is based on actionable
document, the actionable document must be
denied under oath. If there is document in the
complaint for example that are denied by the
adverse party by the defendant, under Rule 26,
the plaintiff is given another opportunity to
request from the defendant, to admit that the
document is genuine.
SECTION 1. Request for admission.—At any
time after issues have been joined, a party may
file and serve upon any other party a written
request for the admission by the latter of the
genuineness of any material and relevant
document described in and exhibited with the
request or of the truth of any material and
relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with
the request unless copies have already been
furnished.
Gawaslang kung kanang document actionable
document because an actionable document must
be properly denied. So unsa may example
aninadokumentonadilisiya actionable document
pero gusto nimo, mu insist judka bah
naiadmitnaniya, for example demand letter.
Demand letter is not an actionable document,
perosaiyang answer gi deny man sa defendant.
Or another, certification to file action,
dilimanasiya actionable document, that is a proof
that the case has passed the
KatarungangPambarangay, unyagi deny man
sapikasunya gusto kanasa trial
dilinapa.presentunsaBrgy. Captain, etcetc etc. So
mu insistjudka, unsaonmananimo? Ah
maoniimong remedy under Rule 26. You file and
serve a written request for the admission of a
document which is not actionable document. Now
the copy of the documents shall be attached to
the request .
…addressed to the adverse party, But of course
those matters that have already admitted dle na
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e.admit pag.usab kadtong rang wla g.admit. unya
mag careful ka ane. Why? Because if you file any
request for admission the request for admission
shall be serve to the party himself not to the
counsel, exemption to the rule ni. Atong nhibw.an
nga kung dunay pleadings, motions nga imung
efile sa court imung mn furnishan ang counsel
kung imu efurinish dretso sa client niya that is
improper service pero dri exemption to the rule
ni. Adto jud didto sa party. If you serve it to the
lawyer, it is improper service for the request for
admission.
Asa mn ni nimu efile ang request for admission?
Adto ni nimu efile sa court unya furnishan nimu
ang pikas. When do file this? Under section 1.
At any time after issues have been joined.
Unya recal na sd ka. When can issues considered
joined? After the filing of the last pleading.
Section 2. Implied admission – Each of the
matters of which an admission is requested
shall be deemed admitted unless,
JD: unless the adverse party to whom the request
was served shall file and served a sworn
statement either denying specifically the matters
of which the admission is requested or setting
forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
So kinahanglan imu nang tubagon. Unsa mn ka
imu nang e.admit or kung wa kai tubag deened
admitted. Unya kung d nimu e.admit you shall
specifically deny the matters or if you do not
specifically deny you state the reasons why he
cannot truthfully either admit or deny those
matters.
within a period designated in the request,
which shall not be less than fifteen (15)
days after service thereof, or within such
further time as the court may allow on
motion, the party to whim the request is
directed files and serves upon the party
requesting the admission a sworn
statement either denying specifically the
matters of which an admission is requested
or setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Objections to any request for
admission shall be submitted to the court
by the party requested within the period for
and prior to the filing of the sworn
statement as contemplated in the
preceding paragraph and his compliance
therewith shall be deferred until such
objections are resolved, which resolution
shall be made as early as practicable.
JD: So any Objections to any request for
the request shall be filed in court and pending
resolutions for his objections the submission of
his answer of the request shall also be
suspended.
Then what would be the effect of the admission?
The effect of the admission shall be considered
as judicial admission as far as that pending
action is concerned. It should be considered as
admission by him for the purpose of that action.
Then an answer to a request for admission
properly served which was signed and sworn to
by the counsel of the parties who requested is
considered sufficient in compliance with the rule.
Naay decision gicite si Regalado. Kanang note #6
ug #5, where the copy of the request for the
admission was served only upon the counsel of
the party so requested, it was held that there is
insufficient compliance with the rule 26.
Section 3. Effect of the admission –Any
admission made by a party pursuant to
such request is for the purpose of the
pending action only and shall not constitute
an admission by him for any other purpose
nor may the same be used against him in
any other proceeding.
Section 4. Withdrawal. – The court may
allow the party making an admission under
this Rule, whether express or implied, to
withdraw or amend it upon such terms as
may be just.
What would be the effect of failure to served
request for admission? The same effect. Section
5 Example: kaso boundary dispute. Wa mn
Section 5. Effect of failure to file and serve
request for admission – Unless otherwise
allowed by the court for good cause shown
and to prevent a failure of justice, a party
who fails to file and serve a request for
admission on the adverse party of material
and relevant facts at issue which are, or
ought to be, within the personal knowledge
of the latter, shall not be permitted to
present evidence on such facts.
Lets go now to Rule 27
RULE 27
Production or Inspection of Documents or
Things
Section 1. Motion for production or
inspection; order – Upon motion of any
party showing good cause therefor, the
court in which an action is pending may (a)
order any party to produce and permit the
inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
contain evidence material to any matter
involved in the action and which are in his
possession, custody or control;
So you can ask for the production of
documents. Kung gusto ka nga… this is similar to
subpoena duces decum. If you believe that your
opponent is hiding documents, if you believe that
there are documents keep by your opponents
and this documents are favorable to you. You can
ask the court to issue an order directing him to
produce these documents.
Now as regards places or object
evidence, you can ask the court that these
evidence shall be inspected. As far as documents
is concerned you can ask that the same be
machine copy. Kung dunay mga pictures or
pananglitan letter or photographs nagtuo ka nga
naay mga letters, pictures or photographs nga
gi.tagoan sa imu kontra you can ask the court to
produce. You can also ask the court to enter into
a designated land or property in his possession or
control for the purpose of inspecting, measuring,
surveying, or taking picture of the property or
any designated.
laing solution anang boundary dispute sukdon ra
mn jd nah. So ikw kihante nagtuo jd ka nga
kanang imung kontra nka.encroach you may
avail of this rule. That you ask the court to allow
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a surveyor or geodetic engineer to conduct a
survey or relocation survey of the lot.
or (b) order any party to permit entry upon
designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon.
The order shall specify the time, place and
manner of making the inspection and
taking copies and photographs, and may
prescribe such terms and conditions as are
just.
We mention earlier that this mode of
discovery under Rule 27 is similar to subpoena
duces decum. Pero duna clay kalainan. This was
ask in the bar.
So what are these distinctions?
#1. Subpoena as what we have learned that is an
order to compelle the production of evidence
whereas Rule 27 is a mode of discovery.
Another, Rule 21 is addressed to any person,
whereas Rule 27 is addressed only to adverse
party not to any person.
Another distinction, Rule 21 can be applied ex
parte, while Rule 27 requires notice to adverse
party.
You can observe that this mode of
discovery under Rule 27 is more or less a fishing
expedition. Wa pa gd ka khblao unsa iyang mga
document dha imu ra to cyang sort of
speculation nga duna to cyang mga documents
nga gitagoan, so that is why you ask order of the
court to produce.
So for further explanation, you read this
case of Solid Bank Corp. vs Gateway
Electronics Corp (April 30, 2008). In this
decision the court gives the requisite for this
mode of discovery.
So what are the requisites?
1. There must be a motion for the
production.
2. Notice of the motion
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
3. The motion must designated the
documents, etc. to be produce or
inspected
4. And those documents etc. should not
be privileged.
5. Those documents constitute or
contains material to any matter
involved in the action
6. And those documents etc are in the
possession of the adverse party.
You read the decision.
Lets go now to Rule 28. Another mode of
discovery.
RULE 28
Physical and Mental Examination of Persons
This particular mode of discovery this can
be availed of if the physical or mental condition
of a person is involved in the controversy or in
the case.
You might ask, what particular case
where the physical or mental condition of a
person is involved in action.
So for example in a petition for
guardianship, you file a petition for
guardianship over the person of this ward kai
imuha kai tiguwang na cya kau, pero gani gd d
gd ka mufile uf petition for guardianship kung
kana pobre, gnahn ka mu.atiman niya kai duna
mn kwarta, kabtangan. Or for example
declaration for nullity of marriage, or annulment
of marriage I mean. For example g.grant on the
ground of impotency, d ba physical defect mn
nah or on the ground of psychological incapacity
it is something to do with the mental condition.
Section 1. When examination may be
ordered - In an action in which the physical
or mental condition of a person is in
controversy the court in which the action is
pending may in its discretion order him to
submit to a physical or mental examination
by a physician.
Another example is when you file a
petition for damages, because you were a
victim of a hit and run or you were a victim of a
vehicular accident, so the court may upon motion
that the person concerned be subjected to
physical examination.
So guardianship, ipa.examine nah cya
kung nagkunahanglan ba jd na cya kai d na cya
ka.atiman sa iyang ka.ugalingon.
Section 2, Order of examination. –
The order for examination may be made
only upon motion for the good cause shown
and upon notice to other party to be
examined and all other parties, specify the
time, place, manner, conditions and scope
of the examination and the person of
persons by whom it is to be made.
Now the order for examination may be
made only upon motion for the good cause
shown and upon notice to other party to be
examined and all other parties, specify the time,
place, manner, conditions and scope of the
examination and the person of persons by whom
it is to be made.
If the person or the party being examined
request for a result, katong g.examine mangau
gani to cya ug result, kanang pagpangau niya sa
result duna nay epekto. Unsay epekto ana? If the
party examined, whether physically or mentally
ask for the result of the examination that was
conducted he si therefore waiving or he can also
be compelled by the adverse party to produce
the previous examination that he underwent prior
to the examination ordered by the court. So that
is Section 3.
Section 3. Report of findings - If requested
by the party examined, the party causing
the examination to be made shall deliver to
him a copy of a detailed written report of
the examining physician setting out his
findings and conclusions. After such
request and delivery, (JD: mao ni cyay epekto)
the party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like
report of any examination, previously or
thereafter made, of the same mental or
physical condition.
So kung duna kai tago tagoon ayaw nlng
pangayo sa resulta sa imung exam kai kung
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mangau ka that would be a waiver of a
privileged. A privileged of physician – patient,
you can be directed by the court, the party who
ask for the examination can have also the right
to ask for the result for the previous examination
or the examination thereafter.
If the party examined refuses to deliver
such report, the court on motion and notice
may make an order requiring delivery on
such terms as are just, and if a physician
fails or refuses to make such a report the
court may exclude his testimony if offered
at the trial.
Section 4. Waiver of privilege. - By
requesting and obtaining a report of the
examination so ordered or by taking the
deposition of the examiner, the party
examined waives any privilege he may have
in that action or any other involving the
same controversy, regarding the testimony
of every other person who has examined or
may thereafter examine him in respect of
the same mental or physical examination.
This has something to do with the
physician-patient privileged.
RULE 29
Refusal to Comply with Modes of Discovery
These are the effects of refusal to comply
with the different modes of discovery. Ato nmn
2ng nadiscuss ang uban na mga epekto. Ang
uban gi.repeat lng dri.
Now Section 1 what would be the effect
of refusal to answer?
Section 1. Refusal to answer - If a party or
other deponent refuses to answer any
question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of
the question may prefer.
JD: d ba katong deposition officer dle mn
to cya ka rule sa objection.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The proponent may thereafter apply to the
proper court of the place where the
deposition is being taken, for an order to
compel an answer.
JD: kung dunay deposition nga dle
tubagon.
The same procedure may be availed of
when a party or a witness refuses to
answer any interrogatory submitted under
Rules 23 or 25.
JD: he can be compelled by the
compelled by the court
If the application is granted, the
court shall require the refusing party or
deponent to answer the question or
interrogatory and if it also finds that the
refusal to answer was without substantial
justification, it may require the refusing
party or deponent or the counsel advising
the refusal, or both of them, to pay the
proponent the amount of the reasonable
expenses incurred in obtaining the order,
including attorney’s fees. (JD: or he can also
be cited for contempt).
If the application is denied and the
court finds that it was filed without
substantial justification, the court may
require the proponent or the counsel
advising the filing of the application, or
both of them, to pay to the refusing party
or deponent the amount of the reasonable
expenses incurred in opposing the
application, including attorney’s fees.
If the application is denied, bali pd. If the
application to compel the witness or deponent is
denied the it would be the movant will also pay
the refusing party.
Section 2. Contempt of court. - If a party or
other witness refuses to be sworn or
refuses to answer any question after being
directed to do so by the court of the place
in which the deposition is being taken, the
refusal may be considered a contempt of
that court.
If he is directed to do so or to answer he
refuse despite order of the court he can be cited
for contempt of that court.
Sec. 3. Other consequences. - If any party
or an officer or managing agent of a party
refuses to obey an order made under
section 1 of this Rule requiring him to
answer designated questions, or an order
under Rule 27 to produce any document or
other thing for inspection, copying, or
photographing or to permit it to be done, or
to permit entry upon land or other
property, or an order made under Rule 28
requiring him to submit to a physical or
mental examination, the court may make
such orders in regard to the refusal as are
just, and among others the following:
JD: These are the other sanctions:
(a) 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
the claim of the party obtaining
the order;
Sa ato pa if there is other request for
admission and you did answer the same is
considered admitted or established.
(b) An order refusing to allow the
disobedient party to support or
oppose designated claims or
defenses or prohibiting him from
introducing in evidence
designated documents or things
or items of testimony, or from
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introducing evidence of physical
or mental condition;
Kato ni cyang refusal to comply order of the
court to undergo physical and mental
condition. Kaning prohibiting him from
introducing evidence kato ni cyang order to
produce certain documents but he did not
produce. Aside from the possible contempt
another consequence is that if that document
is presented in court the same shall be
refuse.
Ok look at letter c. mao ni cya sa usa ka
grabeh nga epekto for refusal of the modes
of discovery.
(c) 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
For example: we have discussed
interrogatories to parties. If the plaintiff makes
interrogatories to party to the defendant, the
party defendant refuse to answer it can be
declared in default and his answer may be
stricken or deleted or excluded to the record and
judgment can be rendered against him. If it is the
plaintiff who refuse the case could be dismiss.
(d) 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.
He can be cited for contempt and the court can
order his arrest, except to an order to submit to
a physical or mental examination.
Section 4. Expenses on refusal to admit. - If
a party after being served with a request
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under Rule 26 to admit the genuineness of
any document or the truth of any matter of
fact, serves a sworn denial thereof
JD: meaning the request for admission being
denied but the party requesting was able to
prove thereafter despite denial he was able to
prove that the document is genuine the party
denying shall be required to pay or to reimburse
reasonable expenses incurred in making such
proof, including attorney’s fees
and if the party requesting the admissions
thereafter proves the genuineness of such
document or the truth of any such matter of
fact, he may apply to the court for an order
requiring the other party to pay him the
reasonable expenses incurred in making
such proof, including attorney’s fees.
Unless the court finds that there were good
reasons for the denial or that admissions
sought were of no substantial importance,
such order shall be issued.
Sec. 5. Failure of party to attend or serve
answers. - If a party or an officer or
managing agent of a party willfully fails to
appear before the officer who is to take his
deposition, after being served with a
proper notice, or fails to serve answers to
interrogatories submitted under Rule 25
after proper service of such interrogatories,
the court on motion and notice, may strike
out all or any part of any pleading of that
party, or dismiss the action or proceeding
or any part thereof, or enter a judgment by
default against that party, and in its
discretion, order him to pay reasonable
expenses incurred by the other, including
attorney’s fees.
Section 6. Expenses against the Republic of
the Philippines. - Expenses and attorney’s
fees are not to be imposed upon the
Republic of the Philippines under this Rule.
Okay, those are the different modes of discovery
and the consequences of not complying of those
modes.
RULE 30
Trial
Section 1. Notice of trial. - Upon entry of a
case in the trial calendar, the clerk shall
notify the parties of the date of its trial in
such manner as shall ensure his receipt of
that notice at least five (5) days before
such date.
Sec. 2. Adjournments and postponements. -
A court may adjourn a trial from day to day,
and to any stated time, as the expeditious
and convenient transaction of business may
require, but shall have no power to adjourn
a trial for a longer period than one month
for each adjournment, nor more than three
months in all, except when authorized in
writing by the Court Administrator,
Supreme Court.
(Guys section 3 na lage drtso ang naa sko
recording kindly check nlng your notes)
Sec. 3. Requisites of motion to postpone
trial for absence of evidence. - A motion to
postpone a trial on the ground of absence
of evidence can be granted only upon
affidavit showing the materiality or
relevancy of such evidence, and that due
diligence has been used to procure it. But if
the adverse party admits the facts to be
given in evidence, even if he objects or
reserves the right to their admissibility, the
trial shall not be postponed.
Although sa practice na gyd, usually the
court will not require you to submit an affidavit
kung murequest ka ug postponement, you just
give you reason why you ask for postponement
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and if the court finds that the same is justifiable
the court will grant your postponement.
Dunay uban na magpataka ra ug
pangayo ug resetting. Ang uban mangayo ug
resetting kai nagconflict an gang scheds. So if
the court finds that the reason for postponement
is unjustifiable then the court will deny the
motion for postponement, and of course if it is
your time to present evidence the same shall be
considered waived.
Kung pananglitan ang imung ground is
illness sagab ana sakit tiyan ug labad ulo, some
courts would require a medical cert., unya ang
uban mu produce mn pd ug medical cert kai
dunay clay amigo nga doctor, mao nang Section
4 makes a sworn certification, meaning it shall be
under oath, or bsan dle under oath mu.submit
lng ghapon bsan unsa ray buhaton nga reason.
There are some courts that you have to pay 100
pesos if you ask for a resetting if the sched
hearing has agreed upon you have to pay 100.
Section 4. Requisites of motion to postpone
trial for illness of party or counsel. - A
motion to postpone a trial on the ground of
illness of a party or counsel may be granted
if it appears upon affidavit or sworn
certification that the presence of such party
or counsel at the trial is indispensable and
that the character of his illness is such as
to render his non-attendance excusable.
Section 5. Order of trial.
During pre-trial we have learned that the
issues are agreed upon and the conduct of the
trial shall limit to the issues agreed upon. And
what would be the order of the trial? Who will
present evidence first? Now usually mao jd ni cya
order the trial; plaintiff, defendant, plaintiff
rebuttal, defendant sur-rebuttal. So the plaintiff
first should present his evidence, ug kanang first
time nimu ug present sa imung evidence mao na
cya ang gitawag nga evidence in chief. Unya
after the presentation of evidence in chief of the
plaintiff, it follows the defendant mao pd daun
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nag gitawag ug evidence in chief for the
defendant. After the presentation of evidence for
the defendant the plaintiff may present rebuttal.
Ang focus sa rebuttal is to refute the evidence
presented by the defense. So dle cya allowed
present new evidence to established or an
evidence that will established his cause of action.
So katong evidence to established his cause of
action adto sa evidence in chief, during rebuttal
the purpose to present evidence is to refute the
testimony or the evidence of the defense. Then
after that the defendant may present sur-
rebuttal. Ang kanang rebuttal evidence pwd ra pd
nah nga the same witnesses nga imung gpresent
during the evidence in chief.
For example sum of money, so knsa mn
ang witness ane? Ang plaintiff, mu.ingon cya nga
kani cya nka.utang unya wa kabayad. Unya ang
witness defendant mu.ingon pd, tinuod nka.utang
ko pro nakabayad nako dia ang resibo. So balik n
pd sa plaintiff, pangutan.on to cya sa counsel,
when the defendant testify last hearing he told
the court that he had already paid the loan, what
can you say about that? Mu.ingon na sd ang
plaintiff that is not true. Then what is the truth?
The truth is he has not paid any amount for his
loan. What can you say about those documents
purportedly receipts? So he has to explain
nganung d to cya ma.consider nga bayad. So you
may say that those receipts the defendant
presented where refer to his payments to his
previous loans not to his loan which is the subject
to this case. So humana ang plaintiff ug testigos,
iya nang narefute, pwd pd mubalik tong
defendant. It could be ang defendant mismo or
pwd pd another witness to refute the testimony
or evidence presented during rebuttal. Thereafter
the case is now submitted for decision.
Now, you notice that the parties
presented conflicting evidence. It is somehow, it
is now the up to the court to weight which side
the court will favor.
Now, in case dunay third party complaint
or counterclaim, okay plaintiff unya defendant
e.include nlng pd to niya ug testify ang
counterclaim, mupresent na pd cya ug evidence
sa iyang counter claim. Kung dunay cyay 3 rd part
complaint, iya na pd to cyang e.include ang iyang
3rd party complaint. Then after that mu.entra ang
3rd party defendant, dle sa mubalik sa plaintiff.
Paminawon sa ang defendant kai wa p mn cya
nga present sa iyang evidence in chief.
Or ni present ug counterclaim. So
plaintiff, defendant denial nya duna pa jd cya
counterclaim. Unya mutubag or mupresent to cya
ug evidence sa counterclaim.
Then the case shall be submitted for
decision.
Before the case is submitted for decision
after the parties presented their evidence the
court may require them to submit memoranda.
You will argue your case, for example you are the
counsel for the plaintiff you argue your case why
you should win the case over the defendant. You
cite the facts favorable to you or the law
favorable to you and also the defendant will cite
the facts or the law favorable to him. And the
court will render decision.
Dunay uban na court although tagsa ra
na mahitabo that the party will be require to
argue orally. Pareha btw atong sa impeachment,
after the parties presented their evidence there is
closing argument.
Then there could also be a reversed trial.
Pareho ra pd ni sa criminal cases. Kahinumdum
mu sa inyung criminal procedure that if the
accused will raised self-defense instead of the
prosecution having presented their evidence first,
it would be in reverse. It will be the accused who
will present first. Why? Because by raising self-
defense or other justifying circumstance or
exempting circumstance, the accuse has deemed
admitted or he has admitted committing the act
of killing for example. Iya na nang gi.angkon na
cya nkapatay although matud pa niya justified,
mao nang cyay mu.una ug present ug evidence
to prove that the act is justified unya mubalos
ang prosecution, reverse. It could happen also in
civil cases. For example the defendant raise the
defense of payment so he has admitted the
allegation that he has obtained although
according him the same has already paid. That’s
why there could be a reverse trial. But seldom ra
na cya mhitabo kai sometimes bsan naa defense,
ni raise ug affirmative defense ang defendant
sagad sa mga corte mu.follow jud sa usual the
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procedure, plaintiff then defendant, because
reverse trial is discretionary on the part of the
court. Even if in criminal cases, it is not
mandatory nga ang accused j dang mag.una.
That is still discretionary on the part of the court.
Why? Because the accuse is presumed innocent
regardless of his defense, be it justifying or
exempting he is presumed innocent.
- Subject to the provisions of section 2 of
Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be
limited to the issues stated in the pre-trial
order and shall proceed as follows:
(a) The plaintiff shall adduce
evidence in support of his complaint;
(b) The defendant shall then
adduce evidence in support of his defense,
counterclaim, cross-claim and third-party
complaint;
(c) The third-party defendant, if
any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
complaint;
(d) The fourth-party, and so forth,
if any, shall adduce evidence of the
material facts pleaded by them;
(e) The parties against whom any
counterclaim or cross-claim has been
pleaded, shall adduce evidence in support
of their defense, in the order to be
prescribed by the court;
(f) The parties may then
respectively adduce rebutting evidence
only, unless the court, for good reasons and
in the furtherance of justice, permits them
to adduce evidence upon their original
case; and
(g) Upon admission of the
evidence, the case shall be deemed
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
submitted for decision, unless the court
directs the parties to argue or to submit
their respective memoranda or any further
pleadings.
If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence.
Sec. 6. Agreed statement of facts. - The
parties to any action may agree, in writing,
upon the facts involved in the litigation,
and submit the case for judgment on the
facts agreed upon, without the introduction
of evidence.
Mao ni gtawag nato ug stipulation of
facts. Stipulation of facts could happen during
pre-trial. It could also happen even during the
trial, they could agree, they could stipulate on
this certain facts, and if there is no more issues
because of the stipulation of the parties then the
court now can rendered judgment based on this
facts admitted.
Permiro ari sa answer. Complaint then
answer, kung ang answer gani gi.admit niya
kadtong material allegations didto sa plaintiff sa
complaint, ah wa nla judgment of the pleading na
daun, decision na daun. Unya unsa mn ang
basihan sa court sa pag render sa decision?
Kadtong allegation sa pleading. Allegation sa
complaint, allegation sa answer. Mao nang
gitawag cya ug judgment on the pleading kai
magbase ra mn sa pleadings. Nganung
mag.hearing p mn nga gi.admit nmn, unsa p mn
issues nga e.resolved.
Another, for example the material
allegations in the complaint are denied, dunay
mga material allegations nga deny sa answer. So
there are issues, there could be no judgment on
the pleading because there are issues. Now,
during pre-trial and one of the items during pre-
trial as what you have learned is stipulation of
facts mn, now those allegations in a complaint
that are denied by the defendant could be raise
again or the plaintiff can request again the
defendant during pre-trial to admit, d ba ako ta
mu gtaga.an ug sample unsaon, will the
defendant admit that he obtain a loan from the
plaintiff? Because this is denied in the answer for
example, now this time during pre-trial if this is
admitted ah wa na that is resolved.
Unya another, unsa pa nang mga
allegations nga gdenied. If all the material
allegations are admitted or stipulated by the
parties during pre-trial, then the court now can
rendered judgment. There is no need of hearing,
kai kanang reception of evidence ipahigayon lng
na kung duna pa mga issues to be resolved,
factual issues, im referring to the factual issues.
If the parties agree only on some of
the facts in issue, the trial shall be held as
to the disputed facts in such order as the
court shall prescribe.
Unya magsabot ta daan ha, maghisgot
gani ta ug evidence ang e.established ana facts
gyd. There is no need to present evidence as
regards the on the law or laws applicable to the
case, because the court can take judicial notice
on the laws. Instead of presenting evidence if the
issues involved kung ang lalisan mao nlng ang
applicable laws possible mn na nga anha
maglalis sa balaod, unsang balaora ang mu.apply
kai naa mn usahay laglom mn ang provisions sa
balaod. Now, aron matabangan ang corte so mao
nang the court may require to submit
memorandum. You argue that why is it that this
particular law shall be applicable. You argue that
why is it that that particular provision shall not be
applicable but the other provision. Dle ka
mupresent ug laing evidencya kung dle
memorandum of arguments.
So kung mu.ingon ka ug evidence, facts.
Unsa mn ning mga facts? Whether nka.utang ba
o wa, that is a facts to be established. Nabayran
ba o wa. Unsa nah question of law nah or
question of facts? Question of facts, So ikw
plaintiff present ka ug evidence nga wa ka
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mabayri. Unsa mn ka evidence imu e.present nga
wa ka mabayre? Testimony, testimonial evidence.
Ikw defendant present ka ug evidence nga
nabayran. Unsa mn evidence imung e.present?
testimonial evidence or receipts kung way
receipts then testimonial evidence, you testify as
to the date when you make a payment, who
made the payment, who receive the payment. So
these are facts. Dle ni cya balaod, facts.
So kung way issues sa facts, if there are
no questions, way issues as to the facts, there
are no factual issues, then there is no need for
trial.
Reception of evidence is only required if
there is the so called factual issue.
Sec. 7. Statement of judge. - During the
hearing or trial of a case any statement
made by the judge with reference to the
case, or to any of the parties, witnesses or
counsel, shall be made of record in the
stenographic notes.
Sec. 8. Suspension of actions. - The
suspension of actions shall be governed by
the provisions of the Civil Code.
Sec. 9. Judge to receive evidence;
delegation to clerk of court. - The judge of
the court where the case is pending shall
personally receive the evidence to be
adduced by the parties. However, in default
or ex parte hearings, and in any case where
the parties agree in writing, the court may
delegate the reception of evidence to its
clerk of court who is a member of the bar.
The clerk of court shall have no power to
rule on objections to any question or to the
admission of exhibits, which objections
shall be resolved by the court upon
submission of his report and the transcripts
within ten (10) days from termination of the
hearing.
Usually it should be the judge who
receives evidence. Meaning to say he is the one
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
who will preside the hearing. However by way of
exception there are cases that reception of
evidence may be delegated to the clerk of court.
Gi.ingnan ta mu sauna nga kanang clerk of court
dle na ka2ng tig.type. dako kau na ug rank ang
clerk of court. Sunod na cya sa huwes gani ang
uban mas hawud pa sa huwes. So the reception
of evidence may be delegated to then clerk of
court who should be a lawyer, because if you are
not a lawyer you are disqualified to receive
evidence.
In what instances that the reception of
evidence may be delegated to the clerk of court?
For example judgment on the pleading, there is
default, if the defendant fails to answer the court
will renders judgment based on the allegations of
the complaint or allowed the plaintiff to present
the evidence ex parte. If the court requires the
plaintiff to present evidence ex parte, kai wa mn
kontra kai ex parte mn the reception of evidence
may be delegated to the clerk of court who must
be a lawyer.
Even if the parties have filed their
answer, full blown trial gyud. It could be also
under Section 9, upon the agreement of the party
the reception of evidence be delegated to the
clerk of court. Pananglitan tan.aw nila mas bright
neng clerk of court, o cge sabutan nila adto nlng
ta sa clerk of court kai kung anhe ta diri sa huwes
agui malangan mn ta, mag cge ra mn tah ug lalis
dri, dle mn mu rule, adto ta sa clerk of court be.
Pro ang problema lng the clerk of court under this
rule, section 9 cannot rule on the objection he
will only note the objection and it will be the
judge who will rule on the objection so with the
admission of exhibits it would be the court. Igo ra
cyang mu note.
For example mu object ka. Objection your
honor, leading clerk of court noted if judge
sustain.
The power of the clerk of court is similar
to deposition officer. Remember deposition officer
does not have also the power to rule over
objections but merely note the objection.
RULE 31
Consolidation or Severance
Do you remember when we discuss
joinder of causes of action, that joinder of causes
of action is merely permissive, it’s not mandatory.
So if the party for example the plaintiff have
several causes of action, 2 or more causes of
action he joint this 2 causes of action just in one
complaint provided that the requisites are
present. Now, if the plaintiff chooses to file
separate complaints for these different causes of
action then that would be allowed because
joinder of causes of action is merely permissive.
But there is another remedy, ang kana mn gud
joinder of causes of action g.encourage na cya sa
g.allow na cya sa rules of court in order to avoid
multiplicity if suits, aron d na madghan ang kaso.
Now, there is another solution if ever the
plaintiff chooses to file separate complaints to his
different causes of action, there is another
remedy provided by rule 31 and that is
CONSOLIDATION OF HEARING. So bsan ug lain2
na ug file ang kaso pwd na cya dunganon ug
hearing, e.consolidate. for example the file ni cya
sa diffent courts, 2ay branch 1, branch 2, branch
3, branch 4, branch 5, taga branches 2a cyay
kaso pwd ra nga adto cya sa branch 1 for
example, unya malipay mn pd nang uban judges
didto, o cge adto ra nah didto. So mananghid s
usa ka ca court sa judge dri, your honor there has
several case involving the same parties we would
like to ask permission your honor that these
cases will just be consolidated before this
branch…
You ask permission for consolidation of cases.
Although there is no rule, asa man i-consolidate?
Usually, kato lower docket number.
Beacsue when you file duna nah siyay assigened
docket number. If the dicjet number is lower, that
emans mao nah siya ang first na-file. BUT, there
is no rule for that that. It could be in any
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branches.
It is also available in criminal cases, especially if
the cases involve the same parties.
Advantage?
Pwede ra ka-usa ra ang mag testigos mu-
appear. Dili magbalik-balik.
The court also saves a lot f time.
If these cases are consolidated, there could only
be one decision. I-joint ra pud sa court. Ang court
mu-render pud decision kada kaso, pero usa ra
na decision. So, taas-taas pud imong decision.
“Section 1. Consolidation.
← When actions involving a
common question of law or fact are
pending before the court, it may
order a joint hearing or trial of any
or all the matters in issue in the
actions; it may order all the actions
consolidated; and it may make such
orders concerning proceedings
therein as may tend to avoid
unnecessary costs or delay.”
“Sec. 2. Separate trials.
← The court, in furtherance of
convenience or to avoid prejudice,
may order a separate trial of any
claim, cross-claim, counterclaim, or
third-party complaint, or of any
separate issue or of any number of
claims, cross-claims, counterclaims,
third-party complaints or issues.”
There could also be opposite to consolidation,
that is separate trial. Causes of action are joint,
and if the court believes that there is need to
separate, pwede sad. Pero tagsa ra ni mahitabo.
Ang daghan, consolidation.
There could also only one case filed pero dunay
counterclaim. It could be the trial for
counterclaim be separated.
RULE 32
Trial by Commissioner
There are instances in certain case nga there are
factual issue to be resolved that are beyond the
expertise of the court.
Example:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Boundary dispute – ask assistance and to be
determined by Geodetic Engineer.
Parties will agree for the payment. Either parties
equally share expenses or shall be paid by one
party only.
“Section 1. Reference by consent.
← By written consent of both
parties, the court may order any or
all of the issues in a case to be
referred to a commissioner to be
agreed upon by the parties or to be
appointed by the court. As used in
these Rules, the word
"commissioner" includes a referee,
an auditor and an examiner.”
“Sec. 2. Reference ordered on motion.
← When the parties do not
consent, the court may, upon the
application of either or of its own
motion, direct a reference to a
commissioner in the following cases:
← partition? If a special civil action of partition is
← (a) When the trial of an issue
of fact requires the examination of a
long account on either side, in which
case the commissioner may be
directed to hear and report upon the
whole issue or any specific question
involved therein;
← the clerk shall forthwith furnish the
← (b) When the taking of an
account is necessary for the
information of the court before
judgment, or for carrying a judgment
or order into effect;
← or to do or perform particular acts,
← (c) When a question of fact,
other than upon the pleadings,
arises upon motion or otherwise, in
any stage of a case, or for carrying a
judgment or order into effect.”
Another example: Partition. And others (other
heirs) will ask for accounting as to the income,
etc. Ask assistance or hire from an Accountant.
The court will issue an order to refer that the
case be tried by commissioner.
Kani mga commissioner dili ra ni siya necessary
kung trial ra. The referral of the case to the
commissioner, this could also occurred even after
the court has rendered decision. If there is
problem on the execution if the decision of the
court.
For example, in the case of partition, ingon court
in the decision, “The Court hereby rendered
judgment that these parcels of land shall be
divided among the 9 heirs equally.” Wa man sa
decision if pila kadak-on kada usa. Ang hagnyo sa
plaintiffs kay bahinon raman ni. After the decision
has become final and in order to come out of the
decision to divide the properties equally and the
court now may refer the subdivision of the
properties to a Geodetic Engineer. For carrying
judgment or order.
You notice that under Rule 32, the appointment
of commissioner here is discretionary in the part
of the court. Pero duna jud kaso na appointment
of commissioner(/s) is(/are) mandatory:
(1) Do you remember special civil action of
filed, under rule 69, appointment of
commissioner is mandatory.
(2) Another, mandatory, in case of
expropriation, under Rule 67.
“Sec. 3. Order of reference; powers of the
commissioner.
← When a reference is made,
commissioner with a copy of the
order of reference. The order may
specify or limit the powers of the
commissioner, and may direct him to
report only upon particular issues,
or to receive and report evidence
only, and may fix the date for
beginning and closing the hearings
and for the filing of his report.
Subject to the specifications and
limitations stated in the order, the
commissioner has and shall exercise
the power to regulate the
proceedings in every hearing before
him and to do all acts and take all
measures necessary or proper for
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the efficient performance of his
duties under the order. He may issue
subpoenas and subpoenas duces
tecum, swear witnesses, and unless
otherwise provided in the order of
reference, he may rule upon the
admissibility of evidence. The trial or
hearing before him shall proceed in
all respects as it would if held before
the court.”
The order for the appointment of commissioner,
the court may give limits to the powers of the
commissioner.
Under section 3, second to the lasts sentence,
the commissioner during the conduct of trial or
reception of evidence, has the power to rule on
admissibility of the evidence.
The commissioner is more powerful than
deposition officer, and clerk of court. Because the
deposition officer cannot rule on the admissibility
of evidence. If there is any objection, the
deposition officer would merely note the
objection, so with the clerk of court. In contrast,
the commissioner can rule on the admissibility of
evidence.
Of course in the issuance of the order appointing
commissioner, the court would also set period to
which the trial by commissioner shall be held,
and the date of the submission of the report to
the court. Pila ka adlaw? 15 days, or depende.
“Sec. 4. Oath of commissioner.
← Before entering upon his
duties the commissioner shall be
sworn to a faithful and honest
performance thereof.”
“Sec. 5. Proceedings before commissioner.
← Upon receipt of the order of
reference and unless otherwise
provided therein, the commissioner
shall forthwith set a time and place
for the first meeting of the parties or
their counsel to be held within ten
(l0) days after the date of the order
of reference and shall notify the
parties or their counsel.”
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Because necessarily during proceedings
conducted by the commissioner, the parties must
be present or at least represented.
If a party noticed that there is any irregularity, he
should make an objection.
“Sec. 6. Failure of parties to appear before
commissioner.
← If a party fails to appear at
the time and place appointed, the
commissioner may proceed ex parte
or, in his discretion, adjourn the
proceedings to a future day, giving
notice to the absent party or his
counsel of the adjournment.”
“Sec. 7. Refusal of witness.
← The refusal of a witness to
obey a subpoena issued by the
commissioner or to give evidence
before him, shall be deemed a
contempt of the court which
appointed the commissioner.”
“Sec. 8. Commissioner shall avoid delays.
← It is the duty of the
commissioner to proceed with all
reasonable diligence. Either party,
on notice to the parties and
commissioner, may apply to the
court for an order requiring the
commissioner to expedite the
proceedings and to make his
report.”
“Sec. 9. Report of commissioner.
← Upon the completion of the
trial or hearing or proceeding before
the commissioner, he shall file with
the court his report in writing upon
the matters submitted to him by the
order of reference. When his powers
are not specified or limited, he shall
set forth his findings of fact and
conclusions of law in his report. He
shall attach thereto all exhibits,
affidavits, depositions, papers and
the transcript, if any, of the
testimonial evidence presented
before him.”
Question: Since the court appointed a
commissioner to help it in making a decision,
should the court be bound by the report of the
commissioner? Should the court be compelled to
accept the report of the commissioner?
Answer: NO! The court has still the discretion to
accept or disregard the report of the
commissioner; either partially or entirely.
“Sec. 10. Notice to parties of the filing of
report.
← Upon the filing of the report,
the parties shall be notified by the
clerk, and they shall be allowed ten
(l0) days within which to signify
grounds of objections to the findings
of the report, if they so desire.
Objections to the report based upon
grounds which were available to the
parties during the proceedings
before the commissioner, other than
objections to the findings and
conclusions therein set forth, shall
not be considered by the court
unless they were made before the
commissioner.”
“Sec. 11. Hearing upon report.
← Upon the expiration of the
period of ten (l0) days referred to in
the preceding section, the report
shall be set for hearing, after which
the court shall issue an order
adopting, modifying, or rejecting the
report in whole or in part, or
recommitting it with instructions, or
requiring the parties to present
further evidence before the
commissioner or the court.”
Pero usually, the court will accept the report. Kay
maoy reason nga ngano ni-hire siya ug
commissioner. Pero kung duna jud justifiable
reason na ngano iya i-disregard, then that is
within the discretion of the court.
“Sec. 12. Stipulations as to findings.
← When the parties stipulate
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that a commissioner’s findings of
fact shall be final, only questions of
law shall thereafter be considered.”
←
← If the parties have beforehand agree that the
finding so of the commissioner shall be
considered final, then there shall be no
hearing anymore. And that all question of
law shall thereafter be considered.
Example: Boundary dispute. Pananglitan nag pre-
trial ron, recovery of ownership or ejectment or
forcible entry kay gikural ang imong yuta, part pa
sa imo boundary, forcible entry! Pre-trial na ron.
The issue is: whether or not the defendant has
encroached all the properties of the plaintiff. In
order to determine whether there is
encroachment we shall hire a commissioner.
Expenses? Equally, agreed.
- Could you also agree if ever the findings
of a geodetic engineer shall be accepted by the
parties? The court will have to ask the parties
that the findings shall be accepted.
“Sec. 13. Compensation of commissioner.
← The court shall allow the
commissioner such reasonable
compensation as the circumstances
of the case warrant, to be taxed as
costs against the defeated party, or
apportioned, as justice requires.”
It shall be shouldered by the parties equally, or
depende pud sa sabot. Like if kinsay pildi maoy
mu-shoulder.
← going to assume, if you filed demurrer to
RULE 33
Demurrer to Evidence
Section 1. Demurrer to evidence.
← After the plaintiff has
completed the presentation of his
evidence, the defendant may move
for dismissal on the ground that
upon the facts and the law the
plaintiff has shown no right to relief.
If his motion is denied, he shall have
the right to present evidence. If the
motion is granted but on appeal the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
order of dismissal is reversed he
shall be deemed to have waived the
right to present evidence.
Demurrer to evidence is actually motion to
dismiss on the ground of insufficiency of
evidence. But, use the term demurrer to
evidence.
For example, the plaintiff has done presenting his
evidence. The defendant, believing that there is
no case against him, the defendant may file
demurer to evidence.
Now kani pag-file sa demurer to evidence,
kinahanglan imo sah jud huna-unao. Because
there is a risk involve.
What is the risk involve in filing of demurer to
evidence? If the demurer to evidence is denied,
what is the recourse? The recourse of the
defendant is to present evidence. Sa ato pa lig-on
ang ebidensiya.
Suppose your demurer to evidence is granted.
And therefore, the case is dismissed. But suppose
the plaintiff appeal form the order of the court
dismissing the case, and on appeal or the
appellate court reverse the order dismissing the
case. What is now the consequence? Mao ni ang
risk na imo gi-assume! If on appeal, the appellate
court reverse the order of dismissal of the court,
your right to present evidence is deemed waive,
and the appellate court shall now decide the case
based on evidence on record.
Kay gi-reverse man sa appellate court, sigurado
ka pildi! And you are waiving your right to
present evidence. That is the risk that you are
evidence.
Demurrer to evidence in civil cases can be filed
even without prior leave of court. Unlike in
criminal cases, wherein leave of prior leave of
court is required before filing demurer to
evidence. Because in criminal cases, if you file
demurrer to evidence without leave of court and
you’re demurrer to evidence is denied, you
cannot present evidence. You are deemed to
have waived your right to present evidence in
criminal cases.
Way problema kay kung granted kay ma-dismiss
man ang kaso in criminal cases, and the
prosecution cannot file for an appeal.
← Demurrer to evidence under Rule 33, requires
motion from the defendant.
Question: What is the remedy if the demurrer to
evidence is denied?
Answer: Present evidence.
Question: What is the remedy if demurrer to
evidence is granted? What is the remedy of the
plaintiff?
Answer: File appeal. Because an order granting
the demurrer to evidence is considered a final
order. Unsa pa may buhaton sa korte kung gi-
grant ang demurrer? There is none, that is a final
order.
If demurrer to evidence is denied, that order
denying demurrer to evidence is considered an
interlocutory order.
Question: Unsay kalahian sa interlocutory order
ug final order?
Answer: Interlocutory order if there is something
more to be done by the court with that case. If
duna pay unfinished business. Like motion to
dismiss, pananglitan ang defendant ni0file ug
motion to dismiss unya gi-denine. Kanang order
denying motion to dismiss. Final order or
interlocutory order? Interlocutory order, because
the motion to dismiss is denied then the next
thing to do is to file an answer. If di ka mu-
answer, you’ll be in default, duna pay buhatonon
ang korte, render decision.
It is important for you to determine
whether the order is interlocutory or final order,
for purposes of appeal. It is because you cannot
appeal an interlocutory order. You can only
appeal a final order, an order which finally
disposes of the cases.
RULE 34
Judgment On The Pleadings
Ang judgment magdepende ra sa pleadings sa
parties. Unsa man na mga pleadings for
example? Ang complaint ug ang answer.
Question Ngano man ang decision mag-base
raman sa ilang pleadings?
Answer: Because there is no more factual issue.
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Section 1. Judgment on the pleadings. Let's go now to RULE 35! as to how the judgment
← Where an answer fails to rendered:
tender an issue, or otherwise admits RULE 35 rendered on the basis
the material allegations of the Summary Judgment rendered on the basis of only of the
adverse party’s pleading, the court You know there is another term nga facts appearing in the pleadings
may, on motion of that party, direct sometimes you will confuse this sa pleadings, affidavits,
judgment on such pleading. judgment on the pleading. This is depositions and
However, in actions for declaration what we call summary judgment. admissions on filer
of nullity or annulment of marriage How do you distinguish JUDGEMENT
or for legal separation, the material ON THE PLEADING TO SUMMARY
facts alleged in the complaint shall JUDGMENT? as to who can ask for
always be proved. Sec. 1. Summary judgment for claimant. - A the judgment:
party seeking to recover upon a claim, available only on the
Motion for judgment on the pleadings, usually counterclaim, or cross-claim or to obtain a a remedy available for claimant because the
ang mu-file aning motion kay ang plaintiff or declamatory relief may, at any time after both claimant and answer fails to tender
claimant. the pleading in answer thereto has been defendant an issue
Question: In what instance that the plaintiff will served, move with supporting affidavits,
file motion for judgment on the pleadings? depositions or admissions for a summary The motion shall be It is subject to
Answer: If the answer fails to tender an issue or if judgment in his favor upon all or any part served at least ten (10) the 3-day notice
the answer admits on all the material allegations thereof. days before the time rule.
in the complaint. Sec. 2. Summary judgment for specified for the
Hinumdomi ninyo na kanang admission baya dili defending party. - A party against whom a hearing. The adverse
kay expressed admission jud tanan. Nahinumdom claim, counterclaim, or cross-claim is party may serve
mo na there could also be admission of the asserted or a declaratory relief is sought opposing affidavits,
material allegation in the complaint if the may, at any time, move with supporting depositions, or
defendant fails to specifically deny the affidavits, depositions or admissions for a admissions at least
allegations in the complaint. If the denial is summary judgment in his favor as to all or three (3) days before
general or wholesale, the same shall be any part thereof. the hearing.
considered as admission. Atong I simplify,
Kung imo gi-ingon, for example, all the
allegations in the compliant are denied, that is a what is the main difference Example for summary judgment: A
general denial which is equivalent to admission. between judgment of the pleading complaint for damages or torts. The
plaintiff files a complaint for damages to
ug summary judgment? the defendant over the vehicular accident.
Kung ang Actionable document not denied
SUMMARY JUDGEMENT OF In the answer of the defendant, the
under oath. Ma deemed admitted na ang
JUDGMENT THE PLEADING defendant admitted that he injured the
allegation sa kontra.
Unya duna pa gyud gitawag na negative plaintiff. Mao man na ang importante nga
as to the ground:
pregnant. It is denial with admission. issue sa kaso diha. But he questioned the
Duna bay higayon nga ang answer naka amount of damages claimed by the
there is no genuine there is no issue
tender ug issues kay ge deny niya ang tanan plaintiff. He said that the claim for damages
issues though there is ( because all the
allegations, posible ba nga adunay JUDGMENT of the plaintiff is bloated. Unsaon mana
still an issue but it only material allegations
ON THE PLEADING? ron?
pertains to the amount are admitted )
Answer: Posible gihapon, for example after pre Answer: This is now proper for summary
of damages
trial or during the trial all those material judgment. Dili judgment of the plaeding,
allegations which are denied in the answer but ngano man? Kay ang judgment of the
during the pre trial, these are already pleading wa man gyuy issue. Highway man.
admitted. Then, there now be judgment on the Limpyo kaayo. Nya dinhi naa pa may issue
pleading. Unsa pa may imo husayon? nga resolbahonon pero dili kayo dakog

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issue. It is only up t the amount of
damages. Unsaon mani?
Answer: There could be no trial anymore
here. But you need to file a Motion for
SUMMARY JUDGMENT.
Now, considering that the defendant is
only questioning the proper amount
claimed for damages, the plaintiff may now
file a motion for Summary of Judgment and
attached now with his motion are affidavit
of merits and other important documents
that will support his claim damages. So that
the court now,after the defendant filed his
comment or objection to the motion, can
render judgment based on this affidavit and
other documents attached to his motion for
summary judgments. There is no need for
trial because the amount of damages could
be proven by the affidavit and other
documents such as receipts.
Kaning Summary Judgment is only
available if the issue left is only as regard
to the claim of damages and also in action
for DECLARATORY RELIEF. Unya kanang
damages diri is only those LIQUIDATED
DAMAGES. Kana bang damages nga klaro
na gyud ba. Duna ba diay damages nga
way klaro? Unsa man silang way klaro?
Unliquidated damages na siya not
determinable damages.
Answer: mao ni ang mga moral damages.
Dili ni ma subject for summary judgment.
Kanang damages nga gastoan sa hospital,
interest diha sa promissory note as agreed
upon. These are what we called
LIQUIDATED DAMAGES. Kana bang ang
amount niya determinable. Mao na siya.
Who can file motion for Summary
judgment? Is it only the plaintiff?
Answer: NO! Under section 1 and 2 it says
“Any Party” can file a Motion for Summary
Judgment.
In case of doubt whether or not the case is
proper for Summary Judgment, then, the
Motion shall be denied.
SEC. 3. Motion and proceedings
thereon. - The motion shall be served at
least ten (10) days before the time
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
specified for the hearing. The adverse
party may serve opposing affidavits,
depositions, or admissions at least three (3)
days before the hearing. After the hearing,
the judgment sought shall be rendered
forthwith if the pleadings, supporting
affidavits, depositions, and admissions on
file, show that, except as to the amount of
damages, there is no genuine issue as to
any material fact and that the moving party
is entitled to a judgment as a matter of law.
SEC. 4. Case not fully adjudicated on
motion. - If on motion under this Rule,
judgment is not rendered upon the whole
case or for all the reliefs sought and a trial
is necessary, the court at the hearing of the
motion, by examining the pleadings and the
evidence before it and by interrogating
counsel shall ascertain what material facts
exist without substantial controversy and
what are actually and in good faith
controverted. It shall thereupon make an
order specifying the facts that appear
without substantial controversy, including
the extent to which the amount of damages
or other relief is not in controversy, and
directing such further proceeding in the
action as are just. The facts so specified
shall be deemed established, and the trial
shall be conducted on the controverted
facts accordingly.
There could also be
PARTIAL SUMMARY JUDGMENT. If
some facts are duly admitted while
others are not, then the court may
render partial judgment. And may
hold hearing the facts unresolved.
SEC. 5. Form of affidavits and supporting
papers. - Supporting and opposing
affidavits shall be made on personal
knowledge, shall set forth such facts as
would be admissible in evidence, and shall
show affirmatively that the affiant is
competent to testify to the matters stated
therein. Certified true copies of all papers
of parts thereof referred to in the affidavit
shall be attached thereto or served
therewith.
SEC. 6. Affidavits in bad faith. - Should it
appear to its satisfaction at any time that
any of the affidavits presented pursuant to
this Rule are presented in bad faith, or
solely for the purpose of delay, the court
shall forthwith order the offending party or
counsel to pay to the other party the
amount of the reasonable expenses which
the filing of the affidavits caused him to
incur, including attorney's fees. It may,
after hearing, further adjudge the offending
party or counsel guilty of contempt.
For further discussion on Summary
Judgment, you read this case.
Calubaquib vs. Republic, June 22,
2011
ISSUE: Is a motu propio
renditioin of a summary
judgment violative of due
process?
RULING: No. Summary judgments are proper
when, upon motion of the plaintiff or the
defendant, the court finds that the answer
filed by the defendant does not tender a
genuine issue as to any material fact and
that one party is entitled to a judgment as a
matter of law. A deeper understanding of
summary judgments is found in Viajar v.
Estenzo:
Relief by summary judgment is intended to
expedite or promptly dispose of cases where
the facts appear undisputed and certain
from the pleadings, depositions, admissions
and affidavits. But if there be a doubt as
to such facts and there be an issue or
issues of fact joined by the parties,
neither one of them can pray for a
summary judgment. Where the facts
pleaded by the parties are disputed or
contested, proceedings for a summary
judgment cannot take the place of a trial.
"A summary judgment is permitted only if
there is no genuine issue as to any material
fact and [the] moving party is entitled to a
judgment as a matter of law." The test of the
propriety of rendering summary judgments
is the existence of a genuine issue of fact,
"as distinguished from a sham, fictitious,
Page | 115

contrived or false claim." "[A] factual issue
raised by a party is considered as sham
when by its nature it is evident that it cannot
be proven or it is such that the party
tendering the same has neither any sincere
intention nor adequate evidence to prove it.
This usually happens in denials made by
defendants merely for the sake of having an
issue and thereby gaining delay, taking
advantage of the fact that their answers are
not under oath anyway.
Rule 36
0 JUDGMENTS, FINAL
ORDERS AND ENTRY
THEREOF
What is judgment?
Judgment is the final
consideration and determination
by a court of the rights of the
parties as those rights presently
exists, upon matters submitted to
it in an action or proceeding.
(Gotamco vs. Chan Seng, 46 Phil.
542)
Sec. 1. Rendition of judgments and final
orders. - A judgment or final order
determining the merits of the case shall be
in writing personally and directly prepared
by the judge, stating clearly and distinctly
the facts and the law on which it is based,
signed by him, and filed with the clerk of
the court.
Above tells us a valid decision.
Q: What are the FORMAL requisites of a
valid judgment?
A: There are four (4) formal requisites:
← The judgment shall be in writing;
-katong una , way record record.
Paghuman sa hearing, moingon dayon
ang justice pilde ka. If mangutana,
tubagon lang ka, basta kay pilde ka.
Oral ang sa una. Karon, ang mga korte,
court of records na gikan sa first level
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
court. Not only judgment ang in writing
also the orders.
← It shall be personally and directly
prepared by the judge;
← It shall state clearly and distinctly
the facts and the law on which it is
based; and
← It shall be signed by the judge and
filed with the clerk of court.
Kung ako ang judge , ang akong
kaugalingong decesion akong isubmit
sa akong clerk of court. Nya butangan
dayon na sa clerk of court ug
RECEIVED. Importante kaayo na ang
pagtatak nga received kay mao pud na
ang date sa promulgation. Before it is
received, I can changed my decision.
Dili pa gyud na decision jud. Pero kung
matatakan na gani na ug RECEIVED,
that will now be considered as
promulgated. Mao na siya ang
promulgation as far as civil cases is
concerned. Dili man gud na same sa
Criminal case gud kay didto basahan
man gyud na ang decision atubangan
sa defending party.
Nya after receiving, the copy of
the decision shall be copy furnished.
Mao na dayon na.
What will happen to a decision which
did not discuss the facts and the laws
on which it is based? Take na kaning
mga requirements naa ni sa
constitution.
Answer: The decision is void. I discuss
jud na nimo ang ang rason ngano kana
imo decision.
The judge who will write the decision
must still be connected with the
judiciary when the decision is
promulgated.
Example: Ang Judge, tapos na siya sa
iya decision, nya wa na received sa
clerk of court. Nya namatay siya kay gi
atake ug highblood. Wa pa jud na
hatag sa clerk of court ang iya
decision. What will happen to that
decision?
Answer: That is void and cannot be
promulgated anymore. It is necessary
that at the time of promulgation, the
judge must still be connected with the
judiciary.
Or kung retired na ang judge nya wa pa
niya napa receive sa Clerk Of Court.
Unsay may buhaton ana?
Answer: ang huwes na mo follow niya,
kopyahon to in toto kung tan-aw niya
insakto. Niya mao to iya i-file. Inig
pirma niya, that is not anymore the
decision of the judge nga namatay.
That is already his decision.
Sa decision, duna jud nay gitawag
nga dispositive portion. Kanang dunay
WHEREFORE. Ang Latin term
ana is FALLO.
Fallo is the dispositive portion. Mao na
siyay pina ka importante nga bahin sa
desisyon. Because it is the part where
the court writes the OBLIGATIONS of
the parties. If naay conflict between
the fallo and the body, Fallo jud ang mo
prevail. Except kung klaro na jud kaayo
nga ang iyang dispositive portion lahi
ra sa body.
Reverse sa pleading. Kay sa pleading
ang importante kay ang BODY man. Dili
katong prayer. What will determine the
jurisdiction is the BODY not the Prayer
or remedies asked.
Decision versu Judgment
Decision mao na ang whole decision
while ang judgment mao na ang fallo.
In your book duna dihay mga special
forms of Judgment
TYPES OF JUDGMENTS:
← Sin Perjuicio judgment
← Conditional judgment
← Incomplete judgement
← Nunc pro tunc judgment
← Judgment upon a compromise or Judgment
upon an amicable settlement
← Judgment upon a confession
← Judgment by default
Page | 116

← Summary Judgment
← Clarificatory Judgment
0 A.) SIN PERJUICIO
JUDGMENT
Q: What is an SIN PERJUICIO judgment?
A: A sin perjuicio is one which contains
only the dispositive portion of the
decision and reserves the making
of findings of fact and conclusions of law
in a subsequent judgment. (Dir. of Lands
vs. Sanz, 45 Phil. 117) So, there is a
“WHEREFORE” without a ratio decidendi.
It does not state how the court arrived
at a certain decision.
Q: Is a SIN PERJUICIO judgment valid?
A: A sin perjuicio judgment is a VOID
judgment for it violates the
constitutional provision that “no decision
shall be rendered by any court of record
without expressing therein clearly and
distinctly the facts and the law on
which it is based” (Sec. 14, Art. VIIII),
and the provision of the Rules of Court
that the judgment shall state “clearly
and distinctly the facts and the law on
which it is based. (Rule 36, Section
1)
B.) CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?
A: A conditional judgment is one which is
subject to the performance of a condition
precedent and is not final until the
condition is performed. (Jaucian vs.
Querol, 38 Phil. 707)
EXAMPLE: A sued B. Then the court said:
“The A is correct because so and so….
However, there is another case now
pending before the SC where the same
issue is being raised. In the meantime, A
is correct. But in the event that SC
decision comes out and is not favorable
to A, then this decision should also be
automatically changed in favor of B.” So,
this is a conditional judgment. Is it a
valid judgment?
Q: Is a conditional judgment valid?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: It is NOT valid. In truth, such judgment
contains no disposition at all and is a
mere anticipated statement of what
the court shall do in the future when a
particular event should happen. For
this reason, as a general rule, judgments
of such kind, conditioned upon a
contingency, are held to be NULL and
VOID. (Cu Unjieng y Hijos vs.
Mabalacat Sugar Co., 70 Phil. 380)
C.) INCOMPLETE JUDGMENT
Q: What is an INCOMPLETE judgment?
What is its effect?
A: An incomplete judgment is one which
leaves certain matters to be settled in a
subsequent proceeding. (Ignacio vs.
Hilario, 76 Phil. 605) There is a decision
but there is still other matters to be
incorporated later in such decision.
Parang interlocutory judgment.
D.) NUNC PRO TUNC JUDGMENT
Q: (Bar Question) What is a judgment
NUNC PRO TUNC and what is its
function?
A: A judgment nunc pro tunc literally
means a ’judgment now for then.’ Its
function is to record some act of the
court done at a former time which was
then carried into the record. And the
power to make such entries is restricted
to placing upon the record evidence of
judicial action which has actually been
taken. It may be used to make the
record speak the truth, but not to make
it speak what it did not speak but
ought to have spoken. (Lichauco vs.
Tan Pho, 51 Phil. 862)
Q: In what cases is a judgment nunc pro
tunc NOT proper?
A: A judgment nunc pro tunc is not
proper in the following instances:
← It cannot remedy errors or omission
in an imperfect or improper judgment.
(Lichauco vs. Tan Pho, 51 Phil. 862)
← It cannot change the judgment in
any material respect. (Henderson vs.
Tan, 87 Phil. 466) and
← It cannot correct judicial errors,
however flagrant and glaring they may
be. (Henderson vs. Tan, 87 Phil. 466)
E.) JUDGMENT UPON A
COMPROMISE or
JUDGMENT UPON AN AMICABLE
SETTLEMENT
Q: What is a JUDGMENT UPON A
COMPROMISE?
A: A judgment upon a compromise is a
judgment rendered with the consent of the
parties for the purpose of effecting a
compromise or settlement of an action. (31
Am. Jur. 105-108)
You know this already, the parties
have come up to a settlement. Mura bag 50-
50 sila.
Here, moingon na gani na ang
counsel, “ you honor, the parties have come
up with a compromise agreement”. That
is a music to the ear of the judge. Labaw pa
na sa “Gangnam style”. Ngano man?
Wala namay work.
Kana man guy mo gama kag decision,
duna man guy modaog anang kaso. Wa man
guy tabla anang kaso. Duna juy mapildi
ana. Kung modaog, malipay. Kung mapildi,
tunglohon ang judge ana. Pamalikason!
Idagkot sa Sto. Nino!Ipabarang sa Sequijor!!
C tablada taga Sequijor! Ang
problema man gud ana kay ang mga
lawyers dili ganahan ana.
Judgment upon compromise it is
immediately executory. Because the parties
have agreed.You do not wait for 15 days
para ma executory. The same cannot be
appealed. It can be appealed only when
one of the parties question the terms and
conditions of the compromise and have
asked the court to set it aside. Again there
will be no appeal unless when the
agreement is vitiated with error, deceit,
violence or forgery of documents
Page | 117

F.) JUDGMENT UPON A
CONFESSION (COGNOVIT
JUDGMENT)
Q: What is a judgment upon a
confession?
A: A judgment upon a confession is
a one entered against a person
upon his admission or confession
of liability without the formality,
time and expense involved in an
ordinary proceeding.
(Natividad vs. Natividad, 51 Phil.
613)
A judgment upon a confession is
also known as “cognovit” judgment.
(Pronounced as konyuvit) . Mao ning
question before nga sa number pa gyud sa
BAR question. What is COGNOVIT
judgment? So mao na siya.
You are just going to write with the
court that you're admitting
everything and you do not have and
answer. Mao nay Judgment upon
confession. You do not file any
answer. You're just informing the
court that you are admitting
everything. Mura bag maguwang
gamay sa judgment by default kay
sa latter wa man jud ka moistorya.
Pero sa judgment by confession
duna kay estorya pero ang imong
estorya dili matawag ug answer.
G. Judgment by default
Kabalo namo ana!!
H. summary Judgment
Kablo napud mo ana!!
I. Clarificatory Judgment
An ambiguous judgment and you
should have a motion of
clarificatory judgment and the
court will clarify the court's
decision. Panagsa ra hinoun na.
After the lapsed of 15 days to
appeal, ang ika 16 ana, ang
decision will become final and
executory. The decision will
become immutable.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Doctrine of Immutability of
Judgment
Judgment that is already final and
cannot be changed anymore. Pero
before a decision will
become final, it could still be
amended or corrected.
After the lapsed of 15 days to
appeal, ma final and executory na
jud na siya. Mao pud ang date
of entry of judgement. So
automatic. Ang date of final and
executory judgement ug date of
entry of final judgment kay pareho
ra.
Kaning date of entry sa
decision is very important! Kay
this the reckoning point
for;
1. filing for petion for relief from
judgment
2. Filing for Motion for Execution
3. Complaint for Revival of Entry
of Decision
Kung kadumdum pa mo, katong
judgment can be revived 5 years
from entry of judgment. After 5
years, it cannot be revived
anymore. It cannot be anymore
executed by any motion but you
have to file a motion for the
revival of that decision. That is
Section 2.
Sec. 2. Entry of judgments and final orders.
- If no appeal or motion for new trial or
reconsideration is filed within the time
provided in these Rules, the judgment or
final order shall forthwith be entered by
the clerk in the book of entries of
judgments. The date of finality of the
judgment or final order shall be deemed to
be the date of its entry. The record shall
contain the dispositive part of the
judgment or final order and shall be signed
by the clerk, with a certificate that such
judgment or final order has become final
and executory.
Unsay record? Ang entire
decsion?
Answer: Dili ang fallo ra with a
certificate that such judgment or
final order has become final and
executory.
Remember that before the
decision will become final and
executory, the court can still
change its decision or final order
moto propio. The court can still
amend even without the motion
of the party. After it will become
final and executory, mointra
napud tong Doctrine of
immutability of decision.
Generally, it cannot anymore be
changed. It will become final
including the errors of the court, it
will become final. Dunay
exception. These exceptions
includes;
1. clerical errors
2. to clarify ambiguity
3. other omissions plainly due
to inadvertence or negligence
Duna puy judgment nga dili
mahimong final;
0 Judgment for support ( it
can never be final and it can be
changed anytime)
Sec. 3. Judgment for or against one or more of
several parties. - Judgment may be given for
or against one or more of several plaintiffs,
and for or against one or more of several
defendants. When justice so demands, the
court may require the parties on each side
to file adversary pleadings as between
themselves and determine their ultimate
rights and obligations.
This will occur when there is Joinder of
Parties.
Sec. 4. Several judgments. - In an action
against several defendants, the court may,
when a several judgment is proper, render
judgment against one or more of them,
Page | 118

leaving the action to proceed against the
others.
This will occur kun dunay Joinder of
Causes of Action. Common ni siya.
Example: In Expropriation case.
Daghan gani na maigo diha.
Daghan nang mga defendants.
Pede na siya nga kaning usa ka
defendant, na settle na man ni
iyahang bayran the court will
render decsion.... nya sa sunod na
sad...decesion..sunod... decision .
Mao ni several judgments.
Daghan ug decisions sa usa ka
kaso.
MUNICIPALITY OF BINAN V GARCIA,
180 SCRA 576
EXAMPLE: There was a case
where the government filed a
case for expropriation against
several landowners. The lands
are adjoining each other and the
government would like to
expropriate all these properties.
The government had to file on
complaint against several
landowners. One landowner
asked that his case be tried
ahead of the others. He was
allowed under Rule 31 on
Separate Trial. His case was tried
ahead. After trial, the court
rendered judgment against him.
His land was ordered
expropriated. Now, what
happened to the other
defendants? The Supreme Court
said let the case continue against
the other landowners. But there
would be a judgment in so far as
one defendant is concerned.
Sec. 5. Separate judgments. - When more
than one claim for relief is presented in an
action, the court, at any stage, upon a
determination of the issues material to a
particular claim and all counterclaims
arising out of the transaction or occurrence
which is the subject matter of the claim,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
may render a separate judgment disposing
of such claim. The judgment shall terminate
the action with respect to the claim so
disposed of and the action shall proceed as
to the remaining claims. In case a separate
judgment is rendered, the court by order
may stay its enforcement until the rendition
of a subsequent judgment or judgments
and may prescribe such conditions as may
be necessary to secure the benefit thereof
to the party in whose favor the judgment is
rendered.
Kung in one case naay Joinder of
causes of action, pede na ang
court will render separate
judgments. Tagsa ra ni.
Sec. 6. Judgment against entity without
juridical personality. - When judgment is
rendered against two or more persons sued
as an entity without juridical personality,
the judgment shall set out their individual
or proper names, if known.
Ato na ni na discuss. The unregistered
entity cannot sue but it can be sued.
As aspiring lawyers, aron mo
mopasar sa bar, masteron na
ninyo unsa may inyong remedies
after the decision is promulgated
ug before it has become final. Nya
unsa may imong remedies if the
decision has become final and
executory.
Within the period of 15 days,
what are your remedies? This
is before finality. Master these
remedies.
1. appeal
2. motion for reconsideration
3. motion for new trial
4. motion for reopening trial – provided
by the jurisprudence
When the decision has become final
and executory, what are your remedies?
1. Petition for releif from Judgment or
final order
2. petition for annulment of judgment
3. petition for certiorari inder rule 65
Rule 37
1
2 MOTION FOR NEW TRIAL OR
RECONSIDERATION
Section 1. Grounds of and period for filing
motion for new trial or reconsideration. Within
the period for taking an appeal, the
aggrieved party may move the trial court to
set aside the judgment or final order and
grant a new trial for one or more of the
following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or
excusable negligence which ordinary
prudence could not have guarded
against and by reason of which such
aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence,
which he could not, with reasonable
diligence, have discovered and
produced at the trial, and which if
presented would probably alter the
result.
Within the same period, the
aggrieved party may also move for
reconsideration upon the grounds that the
damages awarded are excessive, that the
evidence is insufficient to justify the
decision or final order, or that the decision
or final order is contrary to law.
THESE ARE THE GROUNDS OF MOTION FOR
NEW TRIAL (MFNT)
← FAME ( fraud, accident, mistake , and
excusable negligence)- sabta each of these
words.
← Newly Discovered Evidence (NDE)
What is extrinsic fraud? Extrinsic fraud ang
gipasabot diri hap!!
EXTRINSIC FRAUD is a kind of fraud
wherein the aggrieved party is prevented
from having a trial or prevented from
presenting this case properly. INTRINSIC
FRAUD is not a ground for new trial.
Example: In case of pre trial. Appearance of
the parties is very important . Kay unsay
Page | 119

mahitabo? If ang plaintiff mo absent?
Dismiss ang kaso. If ang defendant? There
will be an ex-parte hearing.
You are the defendant. You are told by the
agent or lawyer of the aggrieved party that
the pre-trial has been canceled because
the judge went to Rome where in fact it is
not. So, wa na lang ka mi attend. But it was
not true. So the plaintiff was allowed by the
court to present evidence ex-parte. Or the
reverse, the plaintiff did not appear, only
the defendant because of the fraud that
was made through a lawyer. So the case is
dismissed. So the aggrieved may ask for a
MOTION FOR NEW TRIAL. Ang problema
ang sa defendant kay naay desisyon. So
ang iyang remedy is APPEAL kung dili man
he could file a motion for new trial.
Example: Dunay trial. Nya wa ka kasabot
kay imong abogado nabayran na. So pede
naka maka avail aning motion for new trial.
ACCIDENT
For example, the presentation of the
defendant was deemed waived kay while
he was on his way to court, he suffered
heart attack. Wa sya ka testify nya gi
waived dayon sa court kay wa man kabalo
so he can ask for a new trial.
EXCUSABLE NEGLIGENCE – it must be
excusable. Case to basis daw ni siya
MISTAKE
Nasayop siya for example, the defendant.
He believed that there is no need for him to
go to court for trial because the plaintiff
agreed for a settlement. So the court will
render judgment based on the evidence
presented.
Kung FAME ang imo ground, kinahanglan na
imo na i-state what constitute fraud. Kay
kung wa nimo gi-state with particularity
ang imong Motion will become a PRO-
FORMA. Unsa may buhaton para di
madeny?
1. your motion must alleged fraud
2. you must state the facts that
constitute fraud – isulti jud to nimo unsa
nga fraud
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
3. you must attach your affidavit of defendant. Nya imo na i-argue ngano man?
Merits- isulti mao ni ang facts nga mo- Ngano man nasayop siya sa balaod? Imo
constitute ug fraud ug duna sad ni i-sight? You sight decision of SC. So
jud kay material allegation nga mo no need to attach affidavit of merits.
constitute ug fraud. Naa kay lig-on na
evidence to support your claim. Aside Motion for New Trial, there is another
- otherwise your Motion For New remedy that is not found in your Rules of
Trial shall be denied if there is no affidavit Court. Unsa to? That is MOTION FOR
of merits REOPENING FOR NEW TRIAL (MFRFNT).
4. it must comply with the 3-day Unsay kalainan ani sa MOTION FOR NEW
notice rule- Notice of Hearing TRIAL?
5. the adverse party must be
furnished with the copy of the motion and MOTION FOR NEW MOTION FOR
must be served with personally or by TRIAL (MFNT) REOPENING FOR NEW
registered mail coupled with explanation
TRIAL (MFRFNT)
why you avail as such
Kung NEWLY DISCOVERED EVIDENCE (NDE),
kinahanglan karon pa jud na nimo na GROUNDS:
diskobre-i. Dili na forgotten evidence. This
evidence must be material evidence not F-A-M-E Based on the paramount
corroborative. That the NDE if presented interest of justice,
would probably change the outcome of the NEWLY DISCOVERE resting entirely on the
case. EVIDENCE
If bag-o man toud na imong na diskobri-an sound discretion of court,
na ebidensya nya d naman jud na mausab the exercise of that
ang desisyon sa court kay corroborative ra. decision will not be
Kana bang pareho ra. Pananglitan nakakita reviewed on appeal
kag witness nya ang iyang i-testify kay unless a clear abuse
pareho ra sa gisulti nimo sa imong niaging thereof is shown
witnesess, aw dili na NDE.
Para di na ma pro-forma, the NDE must be;
1. Material and if presented, it could WHEN IS IT FILED?
change the outcome of the case
2. must be supported by affidavit of merits After promulgation May properly presented
that you have discovered only after either or both
← must be supported by the document parties have formally
that you have newly discovered offered and closed their
evidence BEFORE
Sa MOTION FOR RECONSIDERATION (MR)
1. it does not require presentation of new judgment (REGALADO NI)
evidence, ngano man?
← because you will just argue that the
court erred in its findings of facts or in its
conclusion of laws ( imo I- sight diri asa ang (Si Judge mi-ingon na
court nasayop) mao ra nya unsa may sakto pede pud AFTER
para nimo unta. Butangi jud na didto ug PROMULGATION daw
with all due respect , the court erred in the pero si Regalado niingon
glaring documentary evidence of the
it should be filed before
Page | 120

judgment but after both
parties formally offered
evidence pero mao guro
ni bout ipasabot ni Judge)
SOURCE:
Rules of Court Jurisprudence
EXAMPLES sa MFRFNT:
The SC has already made pronouncements
on what the reopening of trial meant.
Reopening of trial is not found in the law.
There is no express rule, but it is
admittedly allowed. Now give an example
of reopening of trial.
EXAMPLE: Tapos na ang trial. What will come
next is decision and then the party said,
“Your honor, could we reopen the trial?
Meron kaming nakalimutan eh. I forgot an
important piece of evidence.” Now, that
cannot be new trial because wala pa man
ang judgment. Rule 37 applies only when
there is already a judgment. In the example,
is that a motion for new trial? No. It should
be called a motion for reopening of trial.
So if the motion is filed after the judgment is
rendered, it is called motion for new trial.
When the motion is filed before a judgement
is rendered, it should be called a motion for
reopening of trial.
EXAMPLE: A judge after trying the case,
“Alright, I will not decide yet. I want to go to
the area and look at the property.” Meaning,
the court, on its own, would like to conduct
an ocular inspection. That is a reopening of
the trial. Now, was there any motion by
anybody? Wala man ba. The court itself
initiated it. And that is allowed said by the
SC. Reopening of trial is bound by no rules.
The judge with or without a motion can do it.
The only ground for reopening of trial is
interest of justice. And that is very broad. So
there are no rules.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The SC said: New trial should be
distinguished from the exercise of the
discretionary power of the court to REOPEN
a trial for the introduction of additional
evidence, to clarify its doubts on material
points. This discretionary power is subject to
no rule other than the paramount interest of
justice and will not be reviewed on appeal
unless the exercise thereof is abused. (Arce
vs. Arce, L-13035, Nov. 28, 1959) So it is one
of the inherent powers of the court.
Kaning MFRFNT naa ni sa Crim Pro pero wala
pa ni gi butang sa Civ Pro , ang
jurisprudence ra ani nag provide. Gabu-ot
bu-ot lng ni ang Supreme Court, but it is
their inherent power to do this.
Sec. 2. Contents of motion for new trial or
reconsideration and notice thereof. The motion
shall be made in writing stating the ground
or grounds therefor, a written notice of
which shall be served by the movant on the
adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motions. A
motion for the cause mentioned in
paragraph (a) of the preceding section shall
be supported by affidavits of merits which
may be rebutted by affidavits. A motion for
the cause mentioned in paragraph (b) shall
be supported by affidavits of the witnesses
by whom such evidence is expected to be
given, or by duly authenticated documents
which are proposed to be introduced in
evidence.
A motion for reconsideration shall point out
specifically the findings or conclusions of
the judgment or final order which are not
supported by the evidence or which are
contrary to law, making express reference
to the testimonial or documentary evidence
or to the provisions of law alleged to be
contrary to such findings or conclusions.
A pro forma motion for new trial or
reconsideration shall not toll the
reglementary period
of appeal.
The motion must be in writing. If it is
MFNT, must supported with affidavit of
merits and if it is a MR, what you need to do
is to argue. But argue with the court
respectfully.
Take note of this, you may strongly
disagree with the decision of the court but
you have to respect it.
Q: What happens if you file a motion without
affidavit of merits and no notice of hearing?
A: Then, your motion for new trial will be
immediately denied. It is a fatal mistake.
Your motion for new trial is classified as a
PRO-FORMA motion for new trial.
Q: Briefly, how do you classify a pro-forma
motion for new trial?
A: It is a motion for new trial which does not
comply in substance or in form with Sections
1 and 2 of Rule 37.
Q: What is the EFFECT of a pro-forma motion
for new trial?
A: The period to appeal is NOT
interrupted by the filing of such motion
for new trial. Even the right to appeal
may be forfeited because of this defect.
The effect is now stated in the last
paragraph of Section 2:
Sec. 3. Action upon motion for new trial or
reconsideration. The trial court may set
aside the judgment or final order and grant
a new trial, upon such terms as may be just,
or may deny the motion. If the court finds
that excessive damages have been awarded
or that the judgment or final order is
contrary to the evidence or law, it may
amend such judgment or final order
accordingly.
Actions of the court:
← grant
← deny
If the court will grant, there will be a
continuation of another trial for the
reception of your evidence. After that,
the court will render another evidence
because the original decision will be
set aside.
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But if you file a MR, there will be no
reception of evidence. If the court is
convinced with your MR, the court may
amend its decision.
Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be
resolved within thirty (30) days from the
time it is submitted for resolution.
Sec. 5. Second motion for new trial. A motion
for new trial shall include all grounds then
available and those not so included shall be
deemed waived. A second motion for new
trial, based on a ground not existing nor
available when the first motion was made,
may be filed within the time herein
provided excluding the time during which
the first motion had been pending.
No party shall be allowed a second
motion for reconsideration of a judgment or
final order.
Although a second MFNT is
allowed, you should have not
repeat your previous ground. You
should have new ground. If you
merely repeats your ground, then
that is a pro-forma motion.
NB: Pro- forma motion does not
stop the running of the
reglementary period. If the time to
file the motion lapsed, the
decision will now become final
and executory.
A party cannot file a second MR.
This is very important. It is only in
the SC where second MR is
allowed. In the Lower court
second MR is absolutely not
allowed.
Sec. 6. Effect of granting of motion for new trial.
If a new trial is granted in accordance with
the provisions of this Rule, the original
judgment or final order shall be vacated,
and the action shall stand for trial de novo;
but the recorded evidence taken upon the
former trial, in so far as the same is
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
material and competent to establish the
issues, shall be used at the new trial
without retaking the same.
What is your remedy if your MFNT or
MR is denied?
Answer: appeal
Sec. 7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule
appear to the court to affect the issues as
to only a part, or less than all of the matter
in controversy, or only one, or less than all,
of the parties to it, the court may order a
new trial or grant reconsideration as to
such issues if severable without interfering
with the judgment or final order upon the
rest.
Sec. 8. Effect of order for partial new trial.
When less than all of the issues are
ordered retried, the court may either enter
a judgment or final order as to the rest, or
stay the enforcement of such judgment or
final order until after the new trial.
Sec. 9. Remedy against order denying a
motion for new trial or reconsideration. An
order denying a motion for new trial or
reconsideration is not appealable, the
remedy being an appeal from the judgment
or final order.
What you are going to appeal is not
the order denying the MFNT or MR
but you should wait for the
judgment from thereon , you can
now appeal from the judgment
again not the order.
After Rule 37, we will skip Rules 38
& 39 because these are proceedings after the
decision has become final. We will proceed to
Rule 40.
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
Appeal. This is one of the remedies after
the rendition of the decision. Rule 40 is about the
appeal from the first level courts to the RTC.
Section 1. Where to appeal.
An appeal from a judgment or final order of
a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction
over the area to which the former pertains.
The title of the case shall remain as it was
in the court of origin, but the party
appealing the case shall be further referred
to as the appellant and the adverse party
as the appellee.
Where are you going to appeal? So first
level court to RTC. Take note that what you can
appeal from is only the decision or final order. You
cannot appeal from an interlocutory order. You
should be able to distinguish final order from an
interlocutory order. The test is very simple: where
the order finally disposes of the entire case…
meaning, if there is nothing else to be done in
the merits of the case… then that is a final
order. But if it does not, then that is an
interlocutory order.
The “Municipal Trial Court” here is
used in its generic sense. This does not mean
that this is applicable only in MTC. This is
applicable to all first level courts. Meaning to say,
you are going to appeal to the RTC that has
territorial jurisdiction over the MTC. So
importante na imong tanawn asa na RTC ka mu
appeal. So for example, MTC Minglanilla. Dili
manka pwede mu appeal didto sa RTC Lapu-Lapu
or Mandaue. So ari ka diri sa RTC Cebu City. So
tanawn nimo asa ni siya na RTC na under.
“The title of the case shall remain as
it was in the court of origin, but the party
appealing the case shall be further referred
to as the appellant (Or the party who filed the
appeal) and the adverse party as the
appellee.”
Pananglitan both parties will appeal, then
both parties shall be referred to as appellant.
Mao ni ang gi tawag ug Cross-Appeal.
Sec. 2. When to appeal. An appeal may be
taken within fifteen (15) days after notice
to the appellant of the judgment or final
order appealed from. Where a record on
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appeal is required, the appellant shall file a
notice of appeal and a record on appeal
within thirty (30) days after notice of the
judgment or final order.
The period of appeal shall be interrupted by
a timely motion for new trial or
reconsideration. No motion for extension of
time to file a motion for new trial or
reconsideration shall be allowed.
When are you going to file an appeal? An
appeal may be taken within 15 days after actual
receipt of decision, especially if it is mailed. And
you should also take note of the ruling of the
Supreme Court in the case of Neypes vs. CA. You
are familiar with this ruling:
Neypes vs. CA
In case a party after receipt of the decision,
files a motion for reconsideration or motion for
new trial, the movant shall have a fresh period
of 15 days from the denial of his motion, not
just the remaining period but the entire 15-
day period.
The 15-day period within which to file an
appeal is mandatory, that is the general rule. But
in some cases, the Supreme Court allowed the
late filing of the notice of appeal. So for example,
sa ikaw 16th day ka mu appeal, supposedly dili na
unta na pwede kay you should file your notice of
appeal within the 15 day period. But there are
instances when the Supreme Court allowed a late
filing of a notice of appeal. So in the case of:
PNB and National Investment Corporation
vs. CA
July 14, 1995
The PNB filed a notice of appeal on the 18 th day.
The trial court denied the appeal. But when the
PNB went to the Supreme Court, the Supreme
Court allowed the late filing, provided that there
is a justifiable reason.
Do not be confused. Kaning mga kasoha
wherein the SC allowed late filing of the notice of
appeal didto nani sa SC. Pero diri sa trial court,
normal gyud na nga ang trial court mu deny sa
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
late filing of a notice of appeal. Mahadlok baya na
ang Judge na ma cite siya ug ignorance of the
law. Basic baya ni na within 15 days ra gyud.
So it is within the power of the SC to
allow the late filing? YES. Because what we have
learned is that the Supreme Court has the power
to promulgate rules regarding pleadings, etc., as
well as to suspend the rules… unya ang ground?
In the interest of substantial justice. In other
words, that is within the powers of the Supreme
Court.
Kanang last paragraph sa Section 2, wala
nana ha “interrupted”. Yes, interrupted, but in
case the motion for reconsideration will be
denied the movant shall have a fresh period of 15
days. So interrupted siya, pero basin ma
confused mo mag tuo mo na ang remaining
period ra.
15 day period. Pero dunay lain, 30 days,
in cases wherein record on appeal is required.
Notice of appeal with record on appeal –
This is required in cases where multiple appeals
are allowed.
General rule – You cannot appeal an
interlocutory order. Kanang interlocutory order
mao na ang order na wala mu dispose sa entire
kaso.
But there are certain cases wherein the
Rules of Court allows appeal from an
interlocutory order. Example, ka hinumdom mo
sa inyong Special Proceedings, probate of a will.
Probate of a will is a special proceeding. Once the
court allowed the will, wala pa natapos, that is
yet the first stage of the proceedings. Duna pay
lain. Wala pa nahuman ang entire proceedings.
Because the court now, after allowing the will,
after finding that the will is in order, the court will
now determine pila ang share.. but under the
Rules, order of the court allowing the will can be
appealed. Take note, that order is considered an
interlocutory order. Ngano man? Because it does
not dispose of the entire case yet. But the Rules
allowed an appeal. So in that instance,
considering that the record of the case is still
with the Trial Court, because the entire case is
not yet disposed, the Rules of Court requires that
when a party would like to appeal from this
interlocutory order, aside from notice of appeal,
record on appeal is required to be submitted to
the appellate court.
What is a record on appeal?
Record on appeal kay mao rana siya ang
copy sa entire record. Katong mga orders. Mura
rana siya ug reproduction sa katong record gyud.
Dili manto nimo madala ang entire record. Kana
mangud mu appeal ka ang original record ipadala
man didto sa appellate court. Pero kung ingon ani
na dunay multiple appeals dili ma forward ang
original record kay ibilin sa Trial Court kay naa
pay trabahoon. That is why the Rules of Court
requires record on appeal.
If record on appeal is allowed, the period
to appeal is 30 days. That is why you notice that
the period to appeals is longer than an ordinary
appeal.
Sec. 3. How to appeal.
The appeal is taken by filing a notice of
appeal with the court that rendered the
judgment or final order appealed from. The
notice of appeal shall indicate the parties to
the appeal, the judgment or final order or
part thereof appealed from, and state the
material dates showing the timeliness of
the appeal.
A record on appeal shall be required only in
special proceedings and in other cases of
multiple or separate appeals.
The form and contents of the record on
appeal shall be as provided in section 6,
Rule 41.
Copies of the notice of appeal, and the
record on appeal where required, shall be
served on the adverse party.
Sec. 4. Perfection of appeal; effect thereof.
The perfection of the appeal and the effect
thereof shall be governed by the provisions
of section 9, Rule 41.
Page | 123

How are you going to make an appeal?
Simple ra kaayo. You are just going to
make a so-called notice of appeal. Notice of
appeal is just one sentence. You are going to
inform the trial court that you are appealing the
decision on questions of law and facts to the RTC.
So simple ra kaayo. Kung maka secure mo ug
copy naa mo mga kaila na abogado aron mo
dunay idea. Isa ra ka sentence: “Notice is hereby
given that the defendant is appealing the
decision to the RTC on questions of law and
facts.”
Pero pakapinan pud nimo ug kanus-a
nimo nadawat ang decision. The date. So
pakapinan nimo ug second sentence. “The
defendant received a copy of the decision on
___”. Why is it important to state in your notice of
appeal the date when you have received a copy
of the decision? Because it will determine
whether or not the appeal is seasonably or timely
filed. Mao ni ang gi tawag ug material data rule
or material date rule. That is very important. You
should state in your notice of appeal when did
the lawyer receive a copy of the decision.
Where are you going to file?
For example, MTCC Cebu City. You
received a copy of a case diri sa MTCC Cebu City
and you are going to appeal it to the RTC. Which
of these two courts that you are going to file to
submit your notice of appeal? Asa man nimo e
submit ang imong notice of appeal? MTCC Cebu
City. Kani imong pahibaw on. “Notice is hereby
given that the defendant or plaintiff is appealing
the decision to the RTC Cebu City on questions of
law and facts… or question of law or facts or
both.”
Sec. 5. Appellate court docket and other
lawful fees.
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the
appellate court docket and other lawful
fees. Proof of payment thereof shall be
transmitted to the appellate court together
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
with the original record or the record on
appeal, as the case may be.
Upon filing of your notice of appeal, you
are going also to file appellate docket fees or
appeal fees. Otherwise, your appeal shall be
denied.
Take note that whatever document that
you are going to file in court you should serve a
copy of that to the adverse party. When you file a
notice of appeal, before going to court a copy of
that shall be served upon the adverse party.
Sec. 6. Duty of the clerk of court.
Within fifteen (15) days from the perfection
of the appeal, the clerk of court or the
branch clerk of court of the lower court
shall transmit the original record or the
record on appeal, together with the
transcripts and exhibits, which he shall
certify as complete, to the proper Regional
Trial Court. A copy of his letter of
transmittal of the records to the appellate
court shall be furnished the parties.
Then the trial court, upon the filing of the
notice of appeal, taking into consideration that
after learning that it is within the 15 day period
and that you have paid the corresponding appeal
fees, the trial court now will issue an order giving
your appeal due course. Thereafter, together with
that order giving your appeal due course, the
court also will issue an order (in the same order)
the court will also direct the clerk of court to
forward the original copy of the record to the
RTC, together with all the transcript of the
stenographic notes, exhibits etcetera, within 15
days.
Sec. 7. Procedure in the Regional Trial
Court.
(a) upon receipt of the complete record or
the record on appeal, the clerk of court of
the Regional Trial Court shall notify the
parties of such fact.
(b) Within fifteen (15) days from such
notice, it shall be the duty of the appellant
to submit a memorandum which shall
briefly discuss the errors imputed to the
lower court, a copy of which shall be
furnished by him to the adverse party.
Within fifteen (15) days from receipt of the
appellant’s memorandum, the appellee may
file his memorandum. Failure of the
appellant to file a memorandum shall be a
ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of
the appellee, or the expiration of the period
to do so, the case shall be considered
submitted for decision. The Regional Trial
Court shall decide the case on the basis of
the entire record of the proceedings had in
the court of origin and such memoranda as
are filed.
Upon the receipt of the court of the
record, the trial court now, through the clerk of
court, will direct the appellant to submit a
memorandum. Memorandum ang ngalan. Dili
summons ang ipadala. Kung dili, order directing
the appellant to submit a memorandum. In the
memorandum, you are going to discuss why is it
that you want the decision to be reversed. You
point out the errors committed by the lower
court. You call it Assignment of Errors. The errors
could be on questions of facts or on in the
application of the law.
What do you mean by question of facts?
When there is an argument as to the
truthfulness or falsity of certain facts, angay ba
tuohan ning witnessa or dili, usa na sa mga
example sa questions of facts. Meaning, when
there is an argument between the parties as to
what really the facts of the case is, that is a
question of fact. For example, angay ba ni tuhuan
ning witness. Ingon ang defendant “kaning
maong witnessa na gi tuohan sa trial court kay
dili ni angay tuohan.” Dayon mu point out ngano
man dili man angay tuohan. Tingali mu ingon ka
na pag cross examine nag bali2x ni siya. Dayon
kato sad sa pikas kay mu ingon na angay siya
tuohan bisan tuod dunay mga inconsistencies.
Although, there were inconsistencies in her
testimonies but these inconsistencies are just
minor. Minor inconsistencies are not badges of
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falsities but these are badges of truth. So ingon
ana pag argue. There is now a question of facts.
Then it could also be question of law.
Meaning, question of law there is now an
argument between the parties as to which law is
applicable. Pwede sa isa ka kaso kay question of
facts ra. Pwede sa isa ka kaso question of law ra
ang ni exist. Pwede walay argument as to the
facts. Pwede sad na both.
***
As what we have said, the appellant
should file a memorandum as ordered by the
RTC. Then thereafter, after receipt of the copy the
appellee should also file his memorandum. The
failure on the part of the appellant to file his
memorandum shall cause the dismissal of his
appeal. Importante kaayo ang memorandum sa
appellant. Dili gani siya mu submit e dismiss ang
kaso. What about on the part of the appellee?
The submission of the appellee of his
memorandum is optional. If he wants to file a
memorandum, well and good. If he does not,
then the court is obliged to decide the case
based on the record. So kung confident kaayo
ang appellee na mu daog siya then there is no
need for him to submit memorandum. Kung nag
duha2x kay kay basin mu tuo ang RTC sa
argument sa pikas, then you submit your
memorandum.
Sec. 8. Appeal from orders dismissing case
without trial; lack of jurisdiction.
If an appeal is taken from an order of the
lower court dismissing the case without a
trial on the merits, the Regional Trial Court
may affirm or reverse it, as the case may
be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it
has jurisdiction thereover, shall try the case
on the merits as if the case was originally
filed with it. In case of reversal, the case
shall be remanded for further proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
decide the case in accordance with the
preceding section, without prejudice to the
admission of amended pleadings and
additional evidence in the interest of
justice.
This is about dismissal of the case by the
lower court based on lack of jurisdiction. Under
Section 8, there are two situations here.
1. Dismissal of the case without a trial, due
to lack of jurisdiction
Kanus-a mani mahitabo? When there is a
motion to dismiss filed or when there is an
answer with affirmative defense of lack of
jurisdiction filed and the trial court dismissed the
case based on that ground. So the plaintiff now
will appeal from the decision. If the order of the
trial court is affirmed that indeed the first level
court does not have any jurisdiction, the RTC will
not remand the case kay wala man gyud
jurisdiction ang lower court matod pa. So the RTC
will not remand or return the case to the MTC but
will conduct trial as if the case is originally filed in
the appellate court.
Whereas, on the other hand, when the
RTC will reverse the dismissal order of the first
level court because according to the RTC the
lower court has jurisdiction over the case then
the trial court will return or remand the case for
further proceedings.
2. Another situation is when there has
already been a trial. Possible mana na gi
file-an ug motion to dismiss or answer with
affirmative defense of lack of jurisdiction
arguing that the trial court has no
jurisdiction. Pero wala naminaw, gi ignore
sa trial court. The trial court conducted
prodeedings or trial. Unya ni appeal kay
napildi man siya. Decision na after trial on the
merits. So what will RTC do? One of the errors
pointed out by the appellant is that the trial court
does not have jurisdiction. Now when the
appellate finds that indeed the lower court does
not have any jurisdiction, duna naman ebidensya
so the RTC will not anymore conduct trial but will
decide the case based on evidence on record.
But if ever the appellate court finds out that the
lower court does not have any jurisdiction, it will
not also return the case but the trial court will
have to decide the case. Sa ato pa kung duna
nay trial didto sa silong whether ma affirm man
or dili, the appellate court will have to decide the
case.
Sec. 9. Applicability of Rule 41.
The other provisions of Rule 41 shall apply
to appeals provided for herein insofar as
they are not inconsistent with or may serve
to supplement the provisions of this Rule.
The rules or provisions of Rule 41 are applicable
to appeal from first level court to RTC.
***
Suppose the the plaintiff or the defendant would
appeal from the decision of the first level
court on pure question of law where should it
be filed?
It should still be in the RTC. Pure
questions of law or pure questions of fact or both
…. JD stops. Wala na continue ang sentence!!!
Naka-piso ang mga noisy students sa gawas!!!
RULE 41
APPEAL FROM THE REGIONAL TRIAL
COURTS
Rule 41 this is the rule on the appeal
from the RTC to the Court of Appeals, or even to
the Supreme Court if the appeal is taken on pure
question of law.
Section 1. Subject of appeal.
An appeal may be taken from a
judgment or final order that
completely disposes of the case, or
of a particular matter therein when
declared by these Rules to be
appealable.
No appeal may be taken from: x x x
These are the possible subjects on appeal:
1. Judgment
2. Final order
3. Particular matter, wherein as provided by
these Rule, can be appealed.
Page | 125

Example of this particular matter/s that are
expressly declared by these Rules to be
appealable are:
1. Denial for motion of intervention
Remember Rule 19. Intervention. When a
third party files a motion because he wants to
intervene but his motion is denied, his remedy is
APPEAL, not petition for certiorari, but APPEAL!
2. Third party complaint
When a defendant files a motion to file
third party complaint but the court denied it, the
remedy of the defendant is to file APPEAL from
the order of the court denying his motion to
file third party complaint.
Under Section 1, these are the matters
that cannot be subjected to appeal:
(a) An order denying a motion for new trial
or reconsideration;
(b) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, cross-
claims and third-party complaints, while the
main case is pending, unless the court
allows an appeal
For example, you file a motion on the
ground that the case was filed on an improper
venue. If that would be granted, meaning the
case is dismissed on the ground of improper
venue, the remedy there is not appeal, but to
RE-FILE THE CASE.
(h) An order dismissing an action without
prejudice.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
In all the above instances where the
judgment or final order is not appealable,
the aggrieved party may file an appropriate
special civil action under Rule 65.
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing
a notice of appeal with the court which
rendered the judgment or final order
appealed from and serving a copy thereof
upon the adverse party. No record on
appeal shall be required except in special
proceedings and other cases of multiple or
separate appeals where the law or these
Rules so require. In such cases, the record
on appeal shall be filed and served in like
manner.
Section 2 tells us the modes of appeal.
Number one is ordinary appeal. We are talking
here of a decision rendered by RTC. Although as
what we have said kaning mga privisions diri
applicable pud ni didto sa first level court na
appeal – to RTC.
The aggrieved party of a decision
rendered by the RTC in the exercise of its original
jurisdiction can be appealed to the Court of
Appeals by mere filing of a notice of appeal. So
here the case is originally filed in the RTC. The
aggrieved party can file an appeal or can appeal
from a decision to the CA by ordinary appeal or
by filing a notice of appeal. Kay kung ang RTC
gud… gikan ang kaso diri sa MTC… unya ni
appeal didto sa RTC unya mu adto ka didto sa
CA… dili naman na siya matawag ug ordinary
appeal… extraordinary appeal nana… pero ayaw
na gamita na term! Para rana makahinumdom
mo. The mode of appeal in this situation wherein
the decision is rendered by the RTC in the
exercise of its appellate jurisdiction the mode of
appeal is called Petition for review. Whereas
here… (check nalang your notes or remember
what he was pointing at the board..haha.. kay
ingon si JD here.. meaning ang naa sa board!) the
one we are talking about here, the RTC is
rendering the decision in the exercise of its
original jurisdiction. Meaning, the case is filed
before the RTC for the first time. If the aggrieved
party wants to file an appeal, he can appeal by
filing a mere notice of appeal before the RTC.
Then record on appeal is not required,
unless the Rules of court specifically required the
filing of a notice of appeal (?). Katong gipang
discuss nato ganiha. Na in special proceedings
there are instances that when you file an appeal
the rules require that record on appeal… aside
from filing a notice of appeal, record on appeal
shall also be filed. Sa ato pa, in cases wherein
multiple appeals are allowed, duha imong e
appeal – notice of appeal AND record on appeal.
What questions are you going to raise before the
Court of Appeals if you are going to file a notice
of appeal?
It should be on questions of facts and law
or purely questions of facts.
(b) Petition for review.- The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
(c) Appeal by certiorari.- In all cases where
only questions of law are raised or
involved, the appeal shall be to the
Supreme Court by petition for review on
certiorari in accordance with Rule 45.
The other mode of appeal is Petition for
review. This is when the decision is rendered by
RTC in the exercise of its appellate jurisdiction.
Petition for review to the Court of Appeals.
Here(I think JD is pointing at the board at
this time), if you raise only pure questions of law
you need not file an appeal to the Court of
Appeals, but you can appeal directly to the
Supreme Court if what you are going to raise is
pure questions of law. And the mode of appeal
here is not petition for review, but petition for
review on certiorari. Lahi na ang petition for
review, lahi sad nang petition for review on
certiorari. When you say petition for review only,
Page | 126

meaning you are appealing to the Court of
Appeals. Petition for review on certiorari,
meaning, you are appealing to the Supreme
Court. Lahi sad tong petition for certiorari.
When you say petition for review –>
CA
When you say petition for review on
certiorari -> This is a mode of appeal.
When you say petition for certiorari ->
This is not a mode of appeal, but this is an
original action. This is under Rule 65. This can be
filed bisan asa depende kung kinsa ang
respondent. If the respondent is the first level
courts, you can file it before the RTC.
So you call it Appeal by certiorari or
Petition for review on certiorari, on pure question
of law. Now take note that you can avail of this
mode of appeal if the RTC is rendering the
decision in the exercise of its original jurisdiction,
because if the RTC is rendering the decision in
the exercise of its appellate jurisdiction even if
you want to question it.. even if you are going to
appeal it on pure question of law you cannot go
directly to the Supreme Court, but to the Court of
Appeals. Timan-e gyud na ninyo kay importante
kaayo na siya.
E dismiss raba na if the RTC renders a
decision in the exercise of its appellate
jurisdiction and you appeal it to the SC, although
you are raising questions of law, the SC will
dismiss it. Or vice versa. You file an appeal from
the decision of the RTC to the Court of Appeals on
pure questions of law, the Court of Appeals will
dismiss it. Although kani diri (pointing at the
board…I wonder unsa kaha…  ) kung mu diretso
ka didto sa Supreme Court, dunay instances na
ang Supreme Court dunay discretion na e forward
niya didto sa Court of Appeals. Pero kani
(pointing again at the board) dili gyud. E dismiss
sa Court of Appeals.
Sec. 3. Period of ordinary appeal.
The appeal shall be taken within fifteen
(15) days from notice of the judgment or
final order appealed from. Where a record
on appeal is required, the appellant shall
file a notice of appeal and a record on
appeal within thirty (30) days from notice
of the judgment or final order.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The period of appeal shall be interrupted by
a timely motion for new trial or
reconsideration. No motion for extension of
time to file a motion for new trial or
reconsideration shall be allowed.
Take note of the ruling of the Supreme
Court in Neypes vs. Neypes. Kani man gung
Neypes vs. Neypes sa Civil ra. (PAGE 558
Regalado 10 edition). But lately in the case of
People vs. Yu, February 9, 2011, the Supreme
Court ruled that: The fresh period rule in Neypes
vs. Neypes is also applicable to criminal cases.
Sec. 4. Appellate court docket and other
lawful fees.
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful
fees. Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.
You should be careful because non-
payment of appeal fees… Court of Appeals and
Supreme Court are very strict on payment of
appeal fees. If it is found out that you did not pay
your appeal fees these Courts will not hesitate to
dismiss your appeal.
Sec. 5. Notice of appeal.
The notice of appeal shall indicate the
parties to the appeal, specify the judgment
or final order or part thereof appealed
from, specify the court to which the appeal
is being taken, and state the material dates
showing the timeliness of the appeal.
In the notice of appeal, the material
dates showing the timeliness of the appeal shall
be indicated.
Sec. 6. Record on appeal; form and
contents thereof.
The full names of all the parties to the
proceedings shall be stated in the caption
of the record on appeal and it shall include
the judgment or final order from which the
appeal is taken and, in chronological order,
copies of only such pleadings, petitions,
motions and all interlocutory orders as are
related to the appealed judgment or final
order for the proper understanding of the
issue involved, together with such data as
will show that the appeal was perfected on
time. If an issue of fact is to be raised on
appeal, the record on appeal shall include
by reference all the evidence, testimonial
and documentary, taken upon the issue
involved. The reference shall specify the
documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at the
hearing, and the testimonial evidence by
the names of the corresponding witnesses.
If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject
index.
The contents of the record on appeal. I
have also given you an idea what is a record on
appeal. Record on appeal mura rani siya ug
machine copy. Although ang karaan kay type-on
gyud na nimo dili nimo pwede kopyahon. Record
on appeal aw lage kay imo kopyahon kung unsay
naa sa original record, this requires an approval
by the trial court. E approve ni siya sa trial court
kay tanawn kung faithful ba ang pagka record
nimo. Then this will be forwarded to the appellate
court. So mas kuti ang record on appeal.
The requirement that the record on
appeal must show on its face that the appeal was
perfected on time is mandatory and
jurisdictional. If not complied with the appellate
court acquires jurisdiction and the appeal must
be dismissed.
Sec. 7. Approval of record on appeal.
Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within five (5) days from receipt of
a copy thereof, the trial court may approve
Page | 127

it as presented or upon its own motion or at
the instance of the appellee, may direct its
amendment by the inclusion of any omitted
matters which are deemed essential to the
determination of the issue of law or fact
involved in the appeal. If the trial court
orders the amendment of the record, the
appellant, within the time limited in the
order, or such extension thereof as may be
granted, or if no time is fixed by the order
within ten (10) days from receipt thereof,
shall redraft the record by including
therein, in their proper chronological
sequence, such additional matters as the
court may have directed him to incorporate,
and shall thereupon submit the redrafted
record for approval, upon notice to the
appellee, in like manner as the original
draft.
The trial court has to approve the record
on appeal. The adverse party can file objection to
the record on appeal. Pwede nimo ingnon ang
adverse party na Hoy sayop mana. Inaccurate
imong pagka copya! That’s why it needs approval
by the trial court. Record on appeal requires
approval, but kaning notice of appeal as long as
na timely lang imong pag file sa appeal,
nabayran nimo ug appeal fees, aw wa nay
problima. The court will have to give it due
course.
Sec. 8. Joint record on appeal.
Where both parties are appellants, they
may file a joint record on appeal within the
time fixed by section 3 of this Rule, or that
fixed by the court.
Unsa to tawag ana kung ang duha ka
parties ni file ug appeal? Cross Appeal. Kana
sila duha tawgon sila ug appellants. Plaintiff-
Appellant. Defendant-Appellant. Pero kung ang
defendant ra ang ni appeal, so Plaintiff-Appellee.
Defendant-Appellant.
Sec. 9. Perfection of appeal; effect thereof.
A party’s appeal by notice of appeal is
deemed perfected as to him upon the filing
of the notice of appeal in due time.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A party’s appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the
approval of the record on appeal filed in
due time.
In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties.
In appeals by record on appeal, the court
loses jurisdiction only over the subject
matter thereof upon the approval of the
records on appeal filed in due time and the
expiration of the time to appeal of the
other parties. x x x
Take note of Section 9 this is very
important! For example, P (plaintiff) vs. D
(defendant). JD draws a “Court” in the board. So
this is now the Court. P files a notice of appeal on
the 10th day from the receipt of the copy of the
decision or final order. Take note that in a civil
case, it could be that both parties will file an
appeal. Dili ka maka ingon na komo ka yang
plaintiff mao na sya ang ni daog dili na siya mu
file ug appeal. Possible na mu file gihapon siya
ug appeal kay daog lage siya pero gamay ra
kaayo ug amount sa damages awarded to him.
Take note na sa civil cases, unless if mu appeal
ka, dili ka entitled ug relief. So kung dili ka mu
appeal, you will not be affected by the appellate
court. You cannot ask relief from the appellate
court if you do not file an appeal. That means
that you are satisfied with the decision of the trial
court. So mao na nga kung ang duha dili
satisfied, necessarily, both of them shall file an
appeal. For example, P is not contented with the
decision because the decision was dismissed, on
the 10th day he filed a notice of appeal. Now, as
regards P, his appeal has already been perfected.
But as regards D, dili pa.
Ngano importante man na makahibaw ta
kung na perfected ba ang appeal? Kay once naka
file na siya ug appeal, dili na siya maka avail ug
other remedies. For example, si P naka file
naman siya ug notice of appeal diba, dili na cya
maka file ug Motion for New Trial, Motion for
Reconsideration, dili na because he has already
perfected an appeal. But take note that even if
one of the parties has already perfected an
appeal, it does not mean that the trial court has
lost jurisdiction over the case. 50% pa nga
nawagtangan siya ug jurisdiction kay di-a paman
diri ang isa. As far as D is concerned, the appeal
has not yet been perfected. He could still avail of
other remedies – such as Motion for New Trial. If
ever D files a Motion for New Trial, the court has
to entertain it because it has still jurisdiction over
the case as far as D is concerned. But as far as P
is concerned, he has no more jurisdiction
because the appeal has already been perfected.
Si D duna pay mga remedies na ma avail.
Pero pananglitan ni lapas… ni abot na ug
15th day, then wala na. The court now has lost
jurisdiction over the case.
Or ibutang nato, si D pagka 13 th day has
also filed a notice of appeal, then from the time
that D has filed a notice of appeal, then the court
now has completely lost its jurisdiction over the
case. Sa ato pa, kung si D mu file ug Motion for
New Trial, or Motion for Reconsideration, the
court cannot entertain it anymore because it has
no more jurisdiction over the case because D has
already perfected his appeal. Kana mangung mu
file ka ug notice of appeal, the jurisdiction is
automatically transferred to the appellate court.
By fiction of law, there is automatic transfer of
jurisdiction.
4th paragraph - In either case, prior to the
transmittal of the original record or the
record on appeal, the court may issue
orders for the protection and preservation
of the rights of the parties which do not
involve any matter litigated by the appeal,
approve compromises, permit appeals of
indigent litigants, order execution pending
appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
Kani diay 15th day - mawagtangan ug jurisdiction
ang court sa ika 15th day kung wala siya ni file ug
notice of appeal. Pero kung ni file siya ug notice
of appeal, ang petsa sa pag file sa notice of
Page | 128

appeal mao na ang petsa na nawagtangan siya
ug jurisdiction 100%.
Now, although the court has lost
jurisdiction over the case, but before the record
of the case is forwarded or transmitted to the
appellate court, there are still matters that the
trial court may entertain. Mao ni siya ang gitawag
na Residual Jurisdiction. Gi tawag siya na
residual jurisdiction kay wala naman siyay
jurisdiction, residue nalang ang na sobra. Dukot
nalang. Wala na gyud.
Take not of this: “approve compromise
agreements…xxx …” The parties, while the
case is pending, could enter into compromise
agreement. After the court has rendered
decision, the parties could still enter into
compromise agreement. Even after the finality of
the decision, the parties could still enter into a
compromise agreement. When the parties enter
into a compromise agreement after the filing of
the notice of appeal, or after the court has lost
jurisdiction over the case, the trial court has still
jurisdiction or power to approve the compromise
agreement entered into by the parties. That is
part of… that is within its so-called Residual
powers.
It can also “permit appeals of
indigent litigants, order execution pending
appeal…” You know, the general rule is when a
decision is appealed to the appellate court, the
effect of the decision is stayed. Pananglitan gi
orderan ka na pabayran ka ug damages, aw dili
usa ka pabayron because the decision is pending
appeal. However, there are instances by way of
exception, wherein the court will allow execution
pending appeal. And this remedy, motion for
execution pending appeal, could be granted by
the trial court if the record of the case has not
yet been transmitted to the appellate court. But
if the record has already been transmitted to the
appellate court when the motion is filed, then the
trial court does not have any more jurisdiction to
entertain that motion.
So where are you now going to file that
motion? To the appellate court. Because the
jurisdiction of the case now is within the
appellate court.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
And another is “to allow withdrawal of
the appeal”. Even if you have filed an appeal
you can withdraw your appeal.
Then, another is order the dismissal of
the appeal. So for example, after filing notice of
appeal, perfected naman to diba file siya ug
notice of appeal. Now the court can still order the
dismissal of the appeal. If it is find out for
example, if it can find grounds for dismissal of
the appeal, such as non-payment of the appeals.
In one decision the Supreme Court said:
The Court can still exercise its residual
jurisdiction even if the records have been
forwarded, provided that the motion was filed
before the record was forward. Sa ato pa, imong
tanawn ana ang pag file sa motion. Bisan pa pag
grant or pag rule sa court sa imong motion na
forwarded na ang record, that would still be in
order, provided that when the motion is filed in
the trial court, the record has not yet been
forwarded to the appellate court.
Sec. 10. Duty of clerk of court of the lower
court upon perfection of appeal.
Within thirty (30) days after perfection of
all the appeals in accordance with the
preceding section, it shall be the duty of
the clerk of court of the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
(b) To verify the completeness of the
records that will be transmitted to the
appellate court;
(c) If found to be incomplete, to take such
measures as may be required to complete
the records, availing of the authority that
he or the court may exercise for this
purpose; and
(d) To transmit the records to the appellate
court.
If the efforts to complete the records fail,
he shall indicate in his letter of transmittal
the exhibits or transcripts not included in
the records being transmitted to the
appellate court, the reasons for their non-
transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties
with copies of his letter of transmittal of
the records to the appellate court.
Duty of the clerk after the filing of the
notice of appeal. So dunay notice of appeal na gi
file. The court will give due course to the appeal
if it is timely filed and the appeal fees are paid.
And in the same order, the court will direct the
clerk of court to forward the entire original record
to the court of appeals within 30 days. Kato sa
MTC kay 15 days. Together with the transcript
and stenographic notes, exhibits, tanan gyud.
Sec. 11. Transcript.
Upon the perfection of the appeal, the clerk
shall immediately direct the stenographers
concerned to attach to the record of the
case five (5) copies of the transcripts of the
testimonial evidence referred to in the
record on appeal. The stenographers
concerned shall transcribe such testimonial
evidence and shall prepare and affix to
their transcripts an index containing the
names of the witnesses and the pages
wherein their testimonies are found, and a
list of the exhibits and the pages wherein
each of them appears to have been offered
and admitted or rejected by the trial court.
The transcripts shall be transmitted to the
clerk of the trial court who shall thereupon
arrange the same in the order in which the
witnesses testified at the trial, and shall
cause the pages to be numbered
consecutively.
Sec. 12. Transmittal.
The clerk of the trial court shall transmit to
the appellate court the original record or
the approved record on appeal within thirty
(30) days from the perfection of the appeal,
Page | 129

together with the proof of payment of the
appellate court docket and other lawful
fees, a certified true copy of the minutes of
the proceedings, the order of approval, the
certificate of correctness, the original
documentary evidence referred to therein,
and the original and three (3) copies of the
transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court for
the examination of the parties.
Sec. 13. Dismissal of appeal.
Prior to the transmittal of the original
record or the record on appeal to the
appellate court, the trial court may motu
proprio or on motion dismiss the appeal for
having been taken out of time.
Usahay, dili ka angay mahadlok kung
ikaw ang party affected, gi grant ang appeal
bisan wan aka bayad ug appeal fees, unya gi
grant sa trial court, dili ka angay mahadlok ana
tungod kay when the case is already in the
appellate court, the appellate court could still
dismiss it if… (?) You need not worry if the RTC or
MTC gave due course to the appeal because in
the appellate court you can still question.
Now from Rule 41, mu ambak ta
didto sa Rule 44. Atong sundan. So ni appeal
naka karon.. Original jurisdiction ha? Kani kani
kani. (lol!) Atong tanawn unsa ang procedure
didto sa Court of Appeals. Actually ang procedure
pareho gihapon. So there is an appeal.
PROCEDURE IN THE COURT OF APPEALS
RULE 44
ORDINARY APPEALED CASES
Section 1. Title of cases.
In all cases appealed to the Court of
Appeals under Rule 41, the title of the case
shall remain as it was in the court of origin,
but the party appealing the case shall be
further referred to as the appellant and the
adverse party as the appellee.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 2. Counsel and guardians.
The counsel and guardians ad litem of the
parties in the court of origin shall be
respectively considered as their counsel
and guardians ad litem in the Court of
Appeals. When others appear or are
appointed, notice thereof shall be served
immediately on the adverse party and filed
with the court.
Sec. 3. Order of transmittal of record.
If the original record or the record on
appeal is not transmitted to the Court of
Appeals within thirty (30) days after the
perfection of the appeal, either party may
file a motion with the trial court, with
notice to the other, for the transmittal of
such record or record on appeal.
Mahitabo man gud na gud na labi na
gyud nang transcript of the stenographic notes,
usahay ang mga Stenographer malangan… e una
lang na ang uban records ipa ulahi ang transcript
kay madugay tungod sa ka daghan sa ilang e
transcribe malangan. So mao na inig tanaw didto
sa Court of Appeals na kuwangan ug transcript,
orderan tong Stenographer na ipa submit na
within 10 days or 15 days under pain of
disciplinary action kung dili na e comply. So that
is Section 3.
Sec. 4. Docketing of case.
Upon receiving the original record or the
record on appeal and the accompanying
documents and exhibits transmitted by the
lower court, as well as the proof of payment
of the docket and other lawful fees, the
clerk of court of the Court of Appeals shall
docket the case and notify the parties
thereof.
Within ten (10) days from receipt of said
notice, the appellant, in appeals by record
on appeal, shall file with the clerk of court
seven (7) clearly legible copies of the
approved record on appeal, together with
the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal
shall be a ground for dismissal of the
appeal.
Sec. 5. Completion of record.
Where the record of the docketed case is
incomplete, the clerk of court of the Court
of Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty of
said court to take appropriate action
towards the completion of the record within
the shortest possible time.
Sec. 6. Dispensing with complete record.
Where the completion of the record could
not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult causes,
the court, on its own motion or on motion
of any of the parties, may declare that the
record and its accompanying transcripts
and exhibits so far available are sufficient
to decide the issues raised in the appeal,
and shall issue an order explaining the
reasons for such declaration.
Upon going over the transcripts as well
as exhibits the appellate court could already
decide the case. Pwede ran a e dispense with.
Sec. 7. Appellant’s brief.
It shall be the duty of the appellant to file
with the court, within forty-five (45) days
from receipt of the notice of the clerk that
all the evidence, oral and documentary, are
attached to the record, seven (7) copies of
his legibly typewritten, mimeographed or
printed brief, with proof of service of two
(2) copies thereof upon the appellee.
Mao ni siya ang importante kaayo! The
filing of the appellant’s brief. This is equivalent to
a memorandum. Diba nag discuss ta ug
memorandum katong gikan sa MTC adto sa RTC.
Ang imong e submit didto memorandum. Diri, sa
Court of Appeals, ang e submit nimo is brief.
Page | 130

Appeallant’s brief. It shall be submitted within 45
days. 7 copies.
Sec. 8. Appellee’s brief.
Within forty-five (45) days from receipt of
the appellant’s brief, the appellee shall file
with the court seven (7) copies of his
legibly typewritten, mimeographed or
printed brief, with proof of service of two
(2) copies thereof upon the appellant.
Then just like in the RTC, after the receipt
of the appellant’s brief, the appellee may also file
his appellee’s brief but that would be optional
again. Sa ato pa ang compulsory gyud kaayo ang
kanang ni file ug appeal. The party appealing is
mandated to submit appellant’s brief. Failure on
his part to submit or file appellant’s brief will
cause the dismissal of the appeal.
Sec. 9. Appellant’s reply brief. Within
twenty (20) days from receipt of the
appellee’s brief, the appellant may file a
reply brief answering points in the
appellee’s brief not covered in his main
brief.
Sec. 10. Time for filing memoranda in
special cases.
In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the
parties shall file, in lieu of briefs, their
respective memoranda within a non-
extendible period of thirty (30) days from
receipt of the notice issued by the clerk
that all the evidence, oral and
documentary, is already attached to the
record.
The failure of the appellant to file his
memorandum within the period therefor
may be a ground for dismissal of the
appeal.
In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties
shall file, in lieu of briefs, their respective
memoranda. Pa pareho lang gihapon na. The
failure of the appellant his memorandum within
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the period may also be a ground for the dismissal
of the appeal.
Sec. 11. Several appellants or appellees or
several counsel for each party.
Where there are several appellants or
appellees, each counsel representing one or
more but not all of them shall be served
with only one copy of the briefs. When
several counsel represent one appellant or
appellee, copies of the brief may be served
upon any of them.
Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will
not be allowed, except for good and
sufficient cause, and only if the motion for
extension is filed before the expiration of
the time sought to be extended.
The plaintiff or appellant or appellee can
ask for extension before the expiration of the
time. Mao gyud na ang inyong timan-an. If you
want to ask for extension of the period, you file
the motion before the lapse of the extension.
If you want to ask for an extension of the period
you file the motion before the lapse of the period
kay unsa pa man ang imung ipa extend kung
nilapas na. Pwede ra ka maka file diri sa last day
basta as long as wala pa mu lapse.
Then contents of the appellant’s brief. Kanang
appellant’s brief baga na mura nag libro nga
naay mga table of contents. Ang importante jud
kaau diha sa appellant’s brief kay ASSIGNMENT
OF ERRORS. You should pinpoint which portions
of the decision that the trial court committed
errors. Assignment of errors that you want to be
reversed by the appellate court. Failure to assign
errors will cause the dismissal of your appeal.
In civil cases only those errors pointing out or
assigned shall be considered by the appellate
court. Pero sa criminal cases entire jud, tanan,
even those which you have not assigned as
errors will be considered by the appellate court.
The entire case will be subjected to review in
criminal cases pero sa civil cases only the
assigned errors shall be considered. That is why
if you did not file an appeal, you cannot point out
errors, that means you are contented with the
decision you cannot ask for relief.
Your ARGUMENTS. You argue why this assigned
errors you want to be reversed.
GENERAL RULE:
Sa civil cases only those assigned errors
shall be considered by the Court. But there are
instances by way of exception that even those
which are not assigned as errors will be
considered by the appellate court.
VERON TRANSPORTATION INCORPORATED VS. CA
The Supreme Court
reiterated its ruling in Catholic
Bishop of Balanga vs. CA wherein
it summarized the exceptions to
the rule that only errors assigned
in the brief will be considered in
appeal. Mga 6. Grounds not
assigned as errors but affecting
jurisdiction, clerical errors, in the
interest of justice, matters of
record having some bearing on
the issues submitted which the
parties failed to raise, closely
related to an error assigned,
determination of the question
properly assigned is dependent.
These are the exceptions.
Then Appellee’s brief.
SEC. 14. Contents of appellee’s brief. – The
appellee’s brief shall contain, in the order
herein indicated, the following:
a) A subject index of the matter in the
brief with a digest of the arguments
and page references, and a table of
cases alphabetically arranged,
textbooks and statutes cited with
references to the pages where they
are cited;
b) Under the heading “Statement of
Facts,” the appellee shall state that
he accepts the statement of facts in
the appellant’s brief, or under the
heading “Counter-Statement of
Facts,” he shall point out such
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insufficiencies or inaccuracies as he
believes exist in the appellant’s
statement of facts with references
to the pages of the record in support
thereof, but without repetition of
matters in the appellant’s statement
of facts; and
c) Under the heading “Argument,” the
appellee shall set forth his
arguments in the case on each
assignment of error with page
references to the record. The
authorities relied on shall be cited
by the page of the report at which
the case begins and the page of the
report on which the citation is
found.
A party who has not appealled from the decision
cannot seek any relief other than what is
provided in the judgment appealled from. He
may not obtain from the appellate court any
affirmative relief other than those granted by the
Court’s below.
Look at this case of COCA-COLA PHILIPPINES INC.
VS. GARCIA, January 31, 2008.
So if you are a party to a case and you are not
contented with the decision of the court you
should file an appeal.
GENERAL RULE: A party who did not appeal will
not be benefitted by the decision of the appellate
court. Pero by way of exception a party who did
not appeal may be benefitted by the appeal
taken by the party who filed the appeal where
both parties have the commonality of interest.
The appeal of one is deemed to be the vicarious
appeal.
Kahinumdum mo atong na discuss pa ta wherein
one of the defendants failed to file an answer
unya other defendants filed an answer? The
defendant who did not file an answer may be
benefitted by the answer filed by his co-
defendant if they have common interests. For
example solidary debtors, common interest, so
the defendant who did not filed an answer who
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
has been declared in default may be benefitted
by the answer of the answering defendant
because they have common interests. Mao pud
na sa appeal. That is the ruling of the Supreme
Court in the case of MARICALUM MINING
CORPORATION VS. REMMINGTON, February 11,
2008.
SEC. 15. Questions that may be raised in
appeal. - Whether or not the appellant has
filed a motion for new trial in the court
below, he may include in his assignment of
errors any question of law or fact that has
been raised in the court below and which is
within the issues framed by the parties.
Now balik ta ngadto sa RULE 42. Kato sa original
man to. Ari ta diri sa side of its appellate
jurisdiction.
When the trial court renders its decision in the
exercise of its appellate jurisdiction the mode of
appeal that would be used in appealing the
decision to the Court of Appeals would be Petition
for Review.
Rule 42
PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURTS TO THE COURT OF APPEALS
SECTION 1. How appeal taken; time for
filing. – A party desiring to appeal from a
decision of the Regional Trial Court
rendered in the exercise of its appellate
jurisdiction may file a verified petition for
review with the Court of Appeals, paying at
the same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P 500.00 for
costs, and furnishing the Regional Trial
Court and the adverse party with a copy of
the petition. The petition shall be filed and
served within fifteen (15) days from notice
of the decision sought to be reviewed or of
the denial of petitioner’s motion for new
trial or reconsideration filed in due time
after judgment. Upon proper motion and
the payment of the full amount of the
docket and other lawful fees and the
deposit for costs before the expiration of
the reglementary period, the Court of
Appeals may grant an additional period of
fifteen (15) days only within which to file
the petition for review. No further
extension shall be granted except for the
most compelling reason and in no case to
exceed fifteen (15) days.
So lisud gamay if the decision of the RTC is in the
exercise of its appellate jurisdiction because the
mode of appeal is petition for review. Unsa may
kalainan anang notice of appeal ug petition for
review? You know kanang notice of appeal
simple ra jud na, usa ra jud na ka sentence.
Notice is hereby given that the defendant is
appealling the decision on pure questions of law
or etc. Pero kanang petition for review mura nag
kiha, murag complaint, so complicated. Verified
pa jud. It is just like an original case.
Notice of appeal adto e file sa trial court, kini
adto ni e file sa appellate court. For example.
The RTC rendered a decision, you want to file a
petition for review, you file the petition for review
before the CA not with the RTC. It is just like a
complaint murag kiha.
It shall be filed within 15 days. However, lagi kay
lisud lisud man gyud ni siya buhaton dili man
pareha sa notice of appeal you can file a motion
for extension of time provided that you have paid
the docket fees. Unya ang motion adto nimu
didto e file sa appellate court. The Court of
Appeals may grant ad extension of 15 days only
within which to file the petition for review. Pero
sa notice of appeal, general rule NO notice of
extension. Nganu mu extension pa man nga
simple ra ma na kaayo. Petition for review the
appellant may file a motion before the appellate
court provided that the required docket fees have
been paid. Strikto kay na sila sa docket fees
kanang appellate court.
SEC. 2. Form and contents. – The petition
shall be filed in seven (7) legible copies,
with the original copy intended for the
court being indicated as such by the
petitioner, and shall:
a) State the full names of the parties to
the case, without impleading the
lower courts or judges thereof either
as petitioners or respondents;
Page | 132

b) Indicate the specific material dates
showing that it was filed on time;
c) Set forth concisely a statement of
the matters involved, the issues
raised, the specification of errors of
fact or law, or both, allegedly
committed by the Regional Trial
Court, and the reasons or arguments
relied upon for the allowance of the
appeal;
d) Be accompanied by clearly legible
duplicate originals or true copies of
the judgments or final orders of both
lower courts, certified correct by the
clerk of court of the Regional Trial
Court, the requisite number of plain
copies thereof and of the pleadings
and other material portions of the
record as would support the
allegations of the petition.
The petitioner shall also submit
together with the petition a certification
under oath that he has not theretofore
commenced any other action involving the
same issues in the Supreme Court, the
Court of Appeals or different divisions
thereof, or any other tribunal or agency; if
there is such other action or proceeding, he
must state the status of the same; and if he
should thereafter learn that a similar action
or proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and
other tribunal or agency therof within five
(5) days therefrom.
Indicated jud nga original. Note mga parties ra,
you should not include the lower court. Unsa ma
ning material dates? The date when the
appellant actually received a copy of the decision
because if you do not state this in your petition
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
for review, your petition for review shall be
dismissed.
Even if you raised pure question of law from a
decision rendered by the RTC in the exercise of
its appellate jurisdiction it should be before the
Court of Appeals. Look at this case regarding
pure question of law that it should be raised
before the Court of Appeals, naa man gud mga
abogado nga masayup ani. Pure question of law
Supreme Court, DILI. Basta ang decision gani in
the exercise of its appellate jurisdiction the Court
of Appeals jud. QUEZON CITY VS. ABS-CBN
BROADCASTING CORPORATION, OCTOBER 6,
2008.
The petition for review aside from being verified
it has also to be accompanied by a certifacte of
non-forum shopping. See mura jud ni siya ug
original action. Mi ingun kog pareha kay dili man
siya original action. This is a MODE OF APPEAL.
SEC. 3. Effect of failure to comply with
requirements. – The failure of the petitioner
to comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit
for costs, proof of service of the petition,
and the contents of and the documents
which should accompany the petition shall
be sufficient ground for the dismissal
therof.
The effect of failure to comply with the
requirements, kahibaw na mu, dismissal.
By the way in a petition for review the petitioner
or appellant should furnish a copy of his petition
to the adverse party with proof of service unya
by affidavit. If it is by mail you should include
proof of service of the petition.
SEC. 4. Action on the Petition. – The Court
of Appeals may require the respondent to
file a comment on the petition, not a motion
to dismiss, within ten (10) days from notice,
or dismiss the petition if it finds the same
to be patently without merit, prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
require consideration.
The Court of Appeals can automatically or
outrightly on the face of the petition that the
appeal is frivolous, baseless, unmeritorious, the
Court of Appeals may dismiss the case outright.
Usahay kay maikog kay baga kaayo tagaan ug
gamay nga respeto, will require the appellee or
adverse party to comment human ana ihawun.
SEC. 5. Contents of comment. – The
comment of the respondent shall be filed in
seven (7) legible copies, accompanied by
certified true copies of such material
portions of the record referred to therein
together with other supporting papers and
shall:
a) State whether or not he accepts the
statement of matters involved in the
petition;
b) Point out such insufficiencies or
inaccuracies as he believes exist in
petitioner’s statement of matters
involved but without repetition; and
c) State the reasons why the petition
should no be given due course.
A copy thereof shall be seved on the
petitioner.
SEC. 6. Due course. – If upon the filing of
the comment or such other pleadings as the
court may allow or require, or after the
expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of
Appeals finds prima facie that the lower
court has committed an error of fact or law
that will warrant a reversal or modification
of the appealed decision, it may accordingly
give due course to the petition.
SEC. 7. Elevation of record. – Whenever the
Court of Appeals deems it necessary, it may
order the clerk of court of the Regional Trial
Court to elevate the original record of the
case including the oral and documentary
evidence within fifteen (15) days from
notice.
SEC. 8. Perfection of appeal; effect therof. –
a) Upon the timely filing of a petition
for review and the payment of the
corresponding docket and other
Page | 133

lawful fees, the appeal is deemed
perfected as to the petitioner.
The Regional Trial Court loses
jurisdiction over the case upon the
perfection of the appeals filed in
due time and the expiration of the
time to appeal of the other parties.
However, before the Court of
Appeals give dues course to the
petition, the Regional Tiral Court
may issue orders for the protection
and preservation of the rights of
the parties which do not involve
any matter litigated by the appeal,
approve compromises, permit
appeals of indigent litigants, order
execution pending appeal in
accordance with Section 2 of Rule
39, and allow withdrawal of the
appeal.
b) Exept in civil cases decided under
the Rules on Summary Procedure,
the appeal shall stay the judgment
or final order unless the Court of
Appeals, the law, or the Rules shall
provide otherwise.
Pareho ra sa atong gi discuss ganina. Expiration
of the time mao na ang time nga mawagtang
jurisdiction ang trial court kung way gi apil nga gi
file ang other party pero kung ni file pud siya ug
petition for review the court losses jurisdiction at
the time that party files his petition.
Then just the same residual jurisdiction. Kato
ganina sa first level court before the trial court
transmitted the original record. Diri before the
Court of Appeals give due course to the petition.
The filing of the petition for review will STAY the
decision. Meaning to say the decision could not
be executed yet because of the pending appeal
HOWEVER, by way of exception there are
instances wherein despite appeal the decision
can be executed. Usa ni ini kanang naa sa letter
(b) cases decided under the Rules on Summary
Procedure. Pananglitan ejectment, forcible entry,
di ba ari ma na sa first level courts, pildi ang
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defendant so ordered to vacate. Ni apilar siya sa
RTC, samtang nga gi apilar pa sa RTC pwede nga
dili siya ma ejected basta mu file lang siya ug
supersedeas bond. Ma decisionan na gani sa RTC
unya gi affirm ang decision bisag mu file pa siyag
supersedeas bond di na jud siya pwede
kapugngan nga mupahawa, papahawaun na
gyud siya because the decision of Court will be
executory without prejudice to the appeal.
Mao nay problema diha kung papahawaun siya
unya ma reverse didto sa Court of Appeals.
SEC. 9. Submission for decision. – If the
petition is given due course, the Court of
Appeals may set the case for oral argument
or require the parties to submit memoranda
within a period of fifteen (15) days from
notice. The case shall be deemed
submitted for decision upon the filing of the
last pleading or memorandum required by
these Rules or by the court itself.
Rule 43
APPEALS FROM THE COURT OF TAX
APPEALS AND QUASI-JUDICIAL AGENCIES TO
THE COURT OF APPEALS
SECTION 1. Scope. – This Rule shall apply to
appeals from judgments or final orders of
the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service
Commission, Central Board of Assessment
Appeals, Securities and Exchange
Commission, Office of the President, Land
Registration Authority, Social Security
Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and
Technology Transfer, National Electrification
Administration, Energy Regulatory Board,
National Telecommunications Commission,
Department of Agrarian Reform under
Republic Act No. 6657, Government Service
Insurance System, Employees
Compensation Commission, Philippine
Atomic Energy Commission, Board of
Investments, Construction Industry
Arbitration Commission, and voluntary
arbitrators authorized by law.
This is still petition for review but the subject
here are those decisions rendered by quasi-
judicial bodies.
Pag matngun mo aning Civil Service because you
might be confused. You know Civil Service
Commission is one of the three constitutional
bodies, you might have the impression that the
decision of other constitutional bodies are also
appeallable to the CA. That impression is wrong
because decisions of the COMELEC and that of
the COA cannot be appealed to the Court of
Appeals, but the decision of these two
constitutional bodies are reviewable only by the
Supreme Court through petition for certiorari
under Rule 65. Kay ang sa CSC gud ari man sa
Court of Appeals unya Petition for Review dili
petition for certiorari.
What about decisions of the Office of the
Ombudsman? What is the mode of review
regarding the decisions of the Office of the
Ombudsman? It depends. Decisions of the
Office of the Ombudsman in administrative cases
are appeallable to the Court of Appeals. This is
based on the decision of the Supreme Court in
the case of MACALALANG VS. OMBUDSMAN,
MARCH 4, 2004. Under Rule 43, petition for
review, Ombudsman decision in administrative
cases.
But of course if the Office of the Ombudsman
acted in grave abuse of discretion it can be
raised through petition for certiorari that can be
filed before the Supreme Court.
Now in criminal cases, the ruling of the
Ombudsman shall be elevated to the Supreme
Court by way of Petition for Certiorari under Rule
65. In criminal cases the ruling of the
Ombudsman shall be reviewed by the Supreme
Court only through Petition for Certiorari under
Rule 65.
Hinumduman ninyu ni nga kung ang way of
review Rule 65 gani ang reviewhon diha dli na
facts kundili tan-awun sa Supreme Court whether
there is grave abuse of discretion. Mao pud na
siya sa COA ug sa COMELEC. Sa ato pa ang ilang
finding of facts FINAL as a general rule. Tan-
awun ra sa Supreme Court kung duna bay grave
Page | 134

abuse of discretion. Pero sa CSC (Civil Service)
we have learned that decision of CSC is
appeallable to the Court of Appeals through
Petition for Review. That means that findings of
fact of the CSC can still be reviewed meaning it is
not final.
The decision of the NLRC can be reviewed by the
CA only through petition for certiorari under Rule
65 sa ato pa grave abuse of discretion gihapon.
Kahinumdum mu aning petition on certiorari sa
dihang ga discuss pa tag jurisdiction? Ang
kaning petition for certiorari pwede ni nimu ma
file derecho sa Supreme Court pero you have to
observe the DOCTRINE OF HIERARCHY OF
COURTS so mao nang ari usa ka mag agi sa Court
of Appeals. Pero as regards COMELEC as regards
COA dili ka mag agi sa Court of Appeals, derecho
ka sa Supreme Court, petition for certiorari.
What about resolutions sa prosecutors office
regarding the filing of criminal cases? Sa Crim
Pro the resolution of the City/Provincial
Prosecutor can be appealled to the DOJ Secretary
or to the RSP. Now if the DOJ affirm the
resolution of the Prosecutor, the resolution of the
DOJ Secretary can be reviewed only through
Petition for Certiorari to the CA. Nganu dili man
petition for review under Rule 43? Kay matud pa
the office of the prosecutor is not considered as a
quasi-judicial body although a prosecutor
conducting a preliminary investigation performs a
quasi-judicial function but his office is NOT a
quasi-judicial body. Kay dili man siya quasi-
judicial body mao nang dili siya ma appealar
ngadto sa Court of Appeal through Petition for
Review. Kung gusto ka ipa review nimu ang
iyang resolution you should file Petition for
Certiorari.
Unsa may kalainan ni ana? Ang nakalain ni ana
ang tan-awun sa Court of Appeals kun duna ray
grave abuse of discretion.
SEC. 2. Cases not covered. – This Rule shall
not apply to judgments or final orders
issued under the Labor Code of the
Philippines.
Kanang sa mga labor arbiters not covered.
However, judgments or final orders of the NLRC
are now reviewable by the Court of Appeals by
Petition for Certiorari under Rule 65.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
SEC. 3. Where to appeal. – An appeal under
this Rule may be taken to the Court of
Appeals within the period and in the
manner herein provided, whether the
appeal involves questions of fact, of law, or
mixed questions of fact and law.
Filing a petition for review with the Court of
Appeals within 15 days whether question of fact,
of law or mixed question of fact or law. The
situation is the same sa decision rendered by the
RTC in the exercise of its appellate jurisdiction. If
you want to raise pure questions of law over
decisions rendered by quasi-judicial body you do
not appeal it to the Supreme Court but to the
Court of Appeals through petition for review.
SEC. 4. Period of appeal. – The appeal shall
be taken within fifteen (15) days from
notice of the award, judgment, final order
or resolution, or from the date of its last
publication, if publication is required by law
for its effectivity, or of the denial of
petitioner’s motion for new trial or
reconsideration duly filed in accordance
with the governing law of the court or
agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon
proper motion and the payment of the full
amount of docket fee before the expiration
of the reglementary period, the Court of
Appeals may grant an additional period of
fifteen (15) days only within which to file
the petition for review. No further
extension shall be granted except for the
most compelling reason and in no case to
exceed fifteen (15) days.
Take note that the doctrine of Neypes vs. Neypes
is applicable in a petition for review. In other
words if a party files a motion for reconsideration
before the quasi-judicial body he shall have a
fresh period from the denial of his motion for
reconsideration.
Also he can file a motion for extension with the
Court of Appeals upon payment or after payment
of the docket fees.
SEC. 5. How appeal taken. – Appeal shall be
taken by filing a verified petition for review
in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy
thereof on the adverse party and on the
court or agency a quo. The original copy of
the petition intended for the Court of
Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the
petitioner shall pay to the clerk of court of
the Court of Appeals the docketing and
other lawful fees and deposit the sum of
P500.00 for costs. Exemption from
payment of docketing and other lawful fees
and the deposit for costs may be granted
by the Court of Appeals upon a verified
motion setting forth valid grounds therefor.
If the Court of Appeals denies the motion,
the petitioner shall pay the docketing and
other lawful fees and deposit for costs
within fifteen (15) days from notice of the
denial.
How appeal is taken pareho ra. File of verified
petition for review. This is still the same.
SEC. 6. Contents of the petition. – The
petition for review shall:
a. State the full names of the parties to
the case, without impleading the
court or agencies either as
petitioners or respondents;
b. Contain a concise statement of the
facts and issues involved and the
grounds relied upon for the review;
c. Be accompanied by a clearly legible
duplicate original or a certified true
copy of the award, judgment, final
order or resolution appealled from,
together with certified true copies of
such material portions of the record
referred to therein and other
supporting papers; and
d. Contain a sworn certification against
forum shopping as provided in the
last paragraph of Section 2, Rule 42.
The petition shall state the specific
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material dates showing that it was
filed within the period fixed herein.
Contents of the petition the same. The
assignment of errors then the material dates.
SEC. 7. Effect of failure to comply with
requirements. – The failure of the petitioner
to comply with ay of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit
for costs, proof of service of the petition,
and the contents of and the documents
which should accompany the petition shall
be sufficient ground for the dismissal
thereof.
Failure to comply with the requirements the same
dismissal.
SEC. 8. Action on the petition. – The Court
of Appeals may require the respondent to
file a comment on the petition, not a motion
to dismiss, within ten (10) days from notice,
or dismiss the petition if it finds the same
to be patently without merit, prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
require consideration.
SEC. 9. Contents of comment. – The
comment shall be filed within ten (10) days
from notice in seven (7) legible copies and
accompanied by clearly legible certified
true compies of such material portions of
the record referred to therein together with
other supporting papers. The comment
shall:
a. Point our insufficiences or
inaccuracies in the petitioner’s
statement of facts and issues; and
b. State the reasons why the petition
should be denied or dismissed.
A copy thereof shall be served on the
petitioner, and proof of such service shall
be filed with the Court of Appeals.
SEC. 10. Due course. – If upon the filing of
the comment or such other pleadings or
documents as may be required or allowed
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
by the Court of Appeals or upon the
expiration of the period for the filing therof,
and on the basis of the petition or the
records the Court of Appeals finds prima
facie that the court or agency concerned
has committed errors of fact or law that
would warrant reversal or modification of
the award, judgment, final order or
resolution sought to be reviewed, it may
give due course to the petition; otherwise,
it shall dismiss the same. The findings of
fact of the court or agency concerned, when
supported by substantial evidence shall be
binding on the Court of Appeals.
SEC. 11. Transmittal of record. – Within
fifteen (15) days from notice that the
petition has been given due course, the
Court of Appeals may require the court or
agency to transmit the original or a legible
certified true copy of the entire record of
the proceeding under review. The record to
be transmitted may be abridged by
agreement of all parties to the proceeding.
The Court of Appeals may require or permit
subsequent correction of or addition to the
record..
SEC. 12. Effect of appeal. – The appeal shall
not stay the award, judgment, final order or
resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise
upon sufch terms as it may deem just.
Note that the effect of the appeal here is
different. It is in the reverse. The appeal shall
NOT STAY the judgment. Therefore opposite.
Mao niy exception.
SEC. 13. Submission for decision. – If the
petition is given dues course, the Court of
Appeals may set the case for oral argument
or require the parties to submit memoranda
within a period of fifteen (15) days from
notice. The case shall be deemed
submitted for decision upon the filing of the
last pleading or memorandum required by
these Rules or by the Court of Appeals.
So Rule 41, 42 we are done. Rule 43 and 44 we
are also done. Let us go now to Rule 45.
Rule 45
APPEAL BY CERTIORARI TO THE SUPREME
COURT
Rule 45 is known as “appeal by certiorari” or
“petition for review on certiorari” to the
Supreme Court. You should be able to give
the distinctions between Petition for Certiorari
under Rule 65 and Petition for Review on
Certiorari under Rule 45.
Rule 45 – Petition for Rule 65 – Petition for
Review on Certiorari Certiorari
Is a mode of review. Is an original action.
You do not implead the You have to include in
Court that renders the the petition the judge
decision or final order or the lower court
which is the subject of which rendered the
your appeal. decision or order.
Tagaan gani mu ug distinction unya daghan gani
na siya ug distinction ayaw ug hatag ug usa ra.
Ayaw sad palabihi ug daghan kana lang mga
duha, tulo. Tan-awun sa nimu kung pila ang
points kay ug dagko sad ug points pananglitan 5
points or 10 points daghanun gyud na nimu ug
distinction. Pinaka minimum na duha unya
tarunga hatag ang distinction do not give the
definition. Distinction gani duna kay basis of
comparison. For example color, kana siya puti
kato siya cream unsa may basis sa imung
comparison? Color.
SECTION 1. Filing of petition with Supreme
Court. – A party desiring to appeal by
certiorari from a judgment, final order or
resolution of the Court of Appeals, the
Sandiganbayan, The Court of Tax Appeals,
the Regional Trial Court or other courts,
whenever authorized by law, may file with
the Supreme Court a verified petition for
review on certiorari. The petition may
include an application for a writ of
preliminary injunction or other provisional
remedies and shall raise only questions of
law, which must be distinctly set forth. The
petitioner may seek the same provisional
remedies by verified motion filed in the
same action or proceeding at any time
during its pendency.
Page | 136

Dili ka contento sa decision sa CA, CTA,
Sandiganbayan, RTC on pure questions of law in
the exercise of its original jurisdiction.
Maka figure out na ka unsa nang petition for
certiorari. Mura na siya ug original jud nga kaso.
It must be verified unya dunay certification
against forum shopping and it shall only raise
pure questions of law which must be distinctly
alleged or set forth.
The petitioner may ask for provisional remedies.
Unsa ma ning mga provisional remedies? For
example temporary preliminary injunction or
TRO.
Again only question of law. You should be able to
distinguish question of law from question of fact.
As far as decision of the Sandiganbayan is
concerned mag careful pud mu ana although ato
unya na e discuss sa Crim Pro. Now the decision
of the Sandiganbayan which can be subject for
petition for review under Rule 45 are only those
decisions wherein the Sandiganbayan imposed a
decision which is lower than reclusion perpetua
or life sentence. Because if the Sandiganbayan
in a criminal case imposed a sentence of
reclusion perpetua or life sentence the mode of
appeal to the Supreme Court is by mere notice of
appeal. Meaning to say only question of law can
be raised. The findings of facts of the
Sandiganbayan shall be considered final.
In the book of Regalado or bisag unsa nga book
naa gyud nang distinction between Petition for
Certiorari and Petition for Review on Certiorari.
There are similar distinctions pero pag memorize
ana labing minus tulo (3) or duha (2).
SEC. 2. Time for filing; extension. – The
petition shall be filed within fifteen (15)
days from notice of the judgment or final
order or resolution appealed from, or of the
denial of the petitioner’s motion for new
trial or reconsideration filed in due time
after notice of the judgment. On motion
duly filed and served, with full paymend of
the docket and other lawful fees and the
deposit for costs before the expiration of
the reglementary period, the Supreme
Court may for justifiable reasons grant an
extension of thirty (30) days only within
which to file the petition.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The time for filing of the petition it shall be 15
days but upon motion and proof of payment of
docket fees the Supreme Court can grant an
extension of 30 days only.
Where are you going to file the motion for
extension? Timan-e ha adto sa appellate court.
SEC. 3. Docket and other lawful fees; proof
of service of petition. – Unless he has
theretofore done so, the petitioner shall
pay the corresponding docket and other
lawful fees tot he clerk of court of the
Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of
the petition. Proof of service of a copy
thereof on the lower court concerned and
on the adverse party shall be submitted
together with the petition.
Then the docket fees they are very strict on this.
The petition for review shall be furnished to the
adverse party. Ni ingun man ko nga mura ni ug
original complain basin magtuo mu nga padad-an
ug summon ang pikas, DILI. Imu furnishan daan
pareho ra ug notice of appeal unya the appellate
court and the Supreme Court they are very strict
of proof of service of the petition especially if is
sent to the adverse party by registered mail
aside from registry receipt there should be
affidavit of service. The person who mailed the
petition should execute the affidavit kanus-a na
niya gi mail.
SEC. 4. Contents of petition. – The petition
shall be filed in eighteen (18) copies, with
the original copy intended for the court
being indicated as such by the petitioner,
and shall:
a. State the full name of the appealing
party as the petition and the
adverse party as respondent,
without impleading the lower courts
or judges thereof either as
petitioners or respondents;
b. Indicate the material dates showing
when notice of the judgment or final
order or resolution subject thereof
was received, when a motion for
new trial or reconsideration, if any,
was filed and when notice of the
denial thereof was received;
c. Set forth concisely a statement of
the matters involved, and the
reasons or arguments relied on for
the allowance of the petiton;
d. Be accompanied by a clearly legible
duplicate original, or a certified true
copy of the judgment or final order
or resolution certified by the clerk of
court a quo and the requisite
number of plain copies thereof, and
such material portions of the record
as would support the petition; and
e. Contain a sworn certification against
forum shopping as provided in the
last paragraph of Section 2, Rule 42.
18 copies and dili na pwede single space nimu.
SEC. 5. Dismissal or denial of petition. – The
failure of the petitioner to comply with any
of the foregoing requirements regarding
the payment of the docket and other lawful
fees, deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof.
The Supreme Court may on its own
initiative deny the petition 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.
Then appeal is not a matter of right and that is
why when the court finds that your case is
baseless on the face of the petition it shall
immediately deny the petition or non-payment of
docket fees.
SEC. 6. Review discretionary. – A review is
not a matter of right, but of sound judicial
discretion, and will be granted only when
there are special and important reasons
Page | 137

therefor. The following, while neither
controlling nor fully measuring the court’s
discretion, indicate the character of the
reasons which will be considered:
a. When the court a quo has decided a
question of substance, not
theretofore determined by the
Supreme Court, or has decided it in
a way probably not in accord with
law or with the applicable decisions
of the Supreme Court; or
b. When the court a quo has so far
departed from the accepted and
usual course of judicial proceedings,
or so far sanctioned such departure
by a lower court, as to call for an
exercise of the power of supervision.
SEC. 7. Pleadings and documents that may
be required; sanctions. – For purposes of
determining whether the petition should be
dismissed or denied pursuant to Section 5
of this Rule, or where the petition is given
due course under Section 8 hereof, the
Supreme Court may require or allow the
filing of such pleadings, briefs, memoranda
or documents as it may deem necessary
within such periods and under such
conditions as it may consider appropriate,
and impose the corresponding sanctions in
case of non-filing or unauthorized filing of
such pleadings and documents or non-
compliance with the conditions therefor.
Naay usa ka abogado diri sa Cebu gi require sa
Supreme Court nga pa file-on ug memorandum
sa iyang kaso iya ra tong gi ignore ignore aw
gipapriso sa NBI. The Court issued a warrant of
arrest against the lawyer and had him detained
at the NBI hangtud nga mu comply.
SEC. 8. Due course; elevation of records. – If
the petition is given due course, the
Supreme Court may require the elevation of
the complete record of the case or specified
parts thereof within fifteen (15) days from
notice.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 The Supreme Court is just like an ugly person
it has no appeal. 
Luoy kay si JD kay wala mu mang katawa. Tsk tsk
tsk.
SEC. 9. Rule applicable to both civil and
criminal cases. – The mode of appeal
prescribed in this Rule shall be applicable
to both civil and criminal cases, except in
criminal cases where the penalty imposed
is death, reclusion perpetua or life
imprisonment.
Why is it different? Because the mode of appeal
is by mere notice of appeal it is easy. By mere
filing of notice of appeal before the Court of
Appeals or the Sandiganbayan.
So those are all about appeals. Now Rule 46 dili
na na siya appeal kung dili those are about
original cases, the proceedings before the Court
of Appeals or over cases filed in that court in the
exercise of its original jurisdiction. Kanang Rule
46 up to Rule 54 are all about CA. Before nato ni
e discuss balikan nato ang Rule 38.
Rule 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
So human nakag appeal. Pero ibutang nato wala
ka ka appeal. Rule 38 is about petition for relief
from judgments, orders or other proceedings.
This remedy of petition for relief of judgment is
one of the remedies after a decision or final order
has become final and executory.
Kanang word nga final duna nay duha ka
meaning especially as regards order. When you
say final order it could be final and executory or it
could be just a final order but not yet executory.
In other words final and appealable. Ug mi ingun
ka ug final order it could be that final order is
final and appealable or it could be also that it is
final and executory.
Kaning e discuss nato sa Rule 38 the final order
here is already final and executory because the
period to appeal has already lapse.
SECTION 1. Petition for relief from
judgment, order, or other proceedings. –
When a judgment or final order is entered,
or any other proceedings is thereafter
taken against a party in any court through
fraud, accident, mistake, or excusable
negligence, he may file a petition in such
court and in the same case praying that the
judgment, order or proceeding be set aside.
First question. Where are you going to file the
petition for relief from judgment? The petition
shall be filed in the same court that rendered the
judgment or final order.
Can you file a petition for relief from judgment
before the first level court? Yes. If that is the
court that rendered the judgment or final order
that has become final and executory.
The next question would be, what would be the
GROUNDS for filing petition for relief from
judgment? Now the grounds would only be
FAME. Fraud, Accident, Mistake, Excusable
Negligence.
When we discussed motion for new trial we have
learned that there are two GROUNDS for NEW
TRIAL, FAME and Newly Discovered Evidence.
Here comes petition for relief which can only be
file on the ground of FAME. We discussed already
each of these. Fraud refers only to extrinsic
fraud. Extrinsic fraud is where a party is
prevented from presenting his evidence. So if he
had the opportunity to present his case fully then
there is no extrinsic fraud there could only be
intrinsic fraud. An intrinsic fraud could not be a
ground of petition for relief.
Take note that this remedy cannot be availed of if
the aggrieved party has already filed a motion for
new trial. Kung naka file siyag motion for new
trial unya na deny, aw dili na siya ka file ug
petition for relief.
Take note also the last phrase of Section 1. So he
may file file a petition in such court and in the
same case praying that the judgment, order or
proceeding be set aside. What do you mean by
proceeding? The judgment here has already
become final and executory, it could be that the
adverse party has already filed a motion for
execution and so you can file a petition for relief
from judgment and in that petition you may ask
that the proceeding (the motion for execution) be
denied.
Page | 138

SEC. 2. Petition for relief from denial of
appeal. – When a judgment or final order is
rendered by any court in a case, and a
party thereto, by fraud, accident, mistake
or excusable negligence, has been
prevented from taking an appeal, he may
file a petition in such court and in the same
case praying that the appeal be given due
course.
For example you were not able to file an appeal
because of fame, you are prevented from filing
an appeal and the period within which to file the
appeal has already lapsed, so what are you going
to do? You filed an appeal but your appeal was
denied because it has been filed beyond the
reglementary period, so you can file a petition for
relief from the denial of your appeal and pray
that the appeal be given due course.
By the way petition for relief from judgment is
not available in the CA as well as in the Supreme
Court. This is only applicable in the trial court.
This is the ruling of the Supreme Court in the
case of PURCON, JR. VS. MRM PHILS. INC.,
September 26, 2008.
Now petition for relief from judgment is an
EQUITABLE REMEDY. In other words this remedy
is allowed only in exceptional cases from final
judgment or orders where no other remedy is
available. It will not be contained when the
proper remedy is appeal or certiorari.
For example the reason why you failed to file an
appeal is not due to FAME, for example it is due
to the fault of counsel this remedy cannot be
granted.
So petition for relief is in effect a second remedy
for an aggrieved party to ask for new trial. Ang
epekto sa petition for relief from judgment mu
pareha ra sa epekto sa petition for new trial.
Because the judgment shall be set aside and you
will be given an opportunity to present your
evidence.
And petition for relief from judgment is applicable
to all cases including special proceedings.
SEC. 3. Time for filing petition; contents
and verification. – A petition provided for in
either of the preceding sections of this Rule
must be verified, filed within sixty (60) days
after the petitioner learns of the judgment,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
final order, or other proceeding to be set
aside, and not more than six (6) months
after such judgment or final order was
entered, or such proceeding was taken; and
must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the
facts constituting the petitioner’s good and
substantial cause of action or defense, as
the case may be.
Take note of the time within which you can file
your petition. File within sixty (60) days after the
petitioner learns of the judgment, final order, or
other proceeding to be set aside, and not more
than six (6) months after such judgment or final
order was entered, or such proceeding was
taken. This two must concur.
Entered here meaning the entry of judgment or
the date of finality of decision. Ato na ma nang
gisabutan nga kanang entry of judgment or final
entry of judgment kay pareho ra. If there is no
appeal or there is no motion for reconsideration
or no motion for new trial the decision shall
become final and executory on the 16th day. The
date when the decision when the decision
becomes final and executory shall also be the
same date of entry of judgment. Now the date of
entry of judgment that is the reckoning day for
counting the 6 months period and must be
accompanied with affidavits showing the fraud
accident, mistake and excusable negligence
agreed upon and the facts constituting the
petitioner’s good substantial case of action or
defense. Mao niy gitawag nga AFFIDAVIT OF
MERITS.
Kaning affidavit of merits in this affidavit the
petitioner shall set out or state the circumstances
that constitute fraud. Kay kung mu file siya ug
petition for relief from judgment unya word nga
fraud ra gyud ang iya gibutang wa siya mag sulti
ug unsa na nga mga circumstances nga diin siya
maka ingun nga there is fraud or the word
accident ra ang iyang gi butang and there is no
mention as to what are these circumstances nga
mu constitute para ni ma accident your petition
will be denied.
Your petition should be accompanied with
affidavit of merits although by way of exception
again there are instances wherein in the petition
itself the circumstances that constitute fraud,
etc. are already set out or allege unya wala nay
gi attach nga affidavit of merits. Ni ingun ang
Supreme Court there is now a substantial
compliance because anyway the facts
constituting fraud are specifically alleged in the
petition itself. Pero ayaw mu ug kumpyansa kay
basn mulikoy pud nang Supreme Court.
So accompanied. Bahalag magka subli-subli kag
allege, pag attach na lang jud ug affidavit of
merits. Not only the facts constituting fraud but
you should also state in your affidavit of merits
that you have GOOD DEFENSE if you are for the
defendant or if you are for the plaintiff you state
that you have SUBSTANTIAL CAUSE OF ACTION.
Kay mag unsa ma na tinuod nga nailad ka pero
ang imung defense wala ra pud. Pananglitan for
claim for sum of money unya ibutang nimu nga
nailad ka pero wa kay depensa kay imu ra pud gi
admit. “Aw bitaw tinuod ra pud na attorney, ang
allegations diha tinuod ra pud nga naka utang ko
nga wa ko kabayad.” Then you do not have
substantial defense, therefore your petition for
relief from judgment shall be denied. Nganung
mag present present pa man kag evidence nga
imu ra man admitun. Unsa may kalainan ana?
So mu ingun ang Corte hala bayri na lang na.
Unya the two periods for filing a petition for relief
are not extendible and never interrupted. So a
petition for certiorari does not suspend the period
prescribed by this section neither does a motion
for reconsideration of the order subject of the
petition for relief especially if filed in the wrong
court.
So these two periods must concur.
So affidavit of merits must accompany the
petition just like in motion for new trial. The
absence of the affidavit of merits is a fatal defect
and warrants denial of the petition UNLESS the
facts required to be set out in the affidavit of
merits is also stated in the verified petition. That
is by way of exception pero ayaw mu kumpyansa
ani.
Upon filing of the petition the court may require
the adverse party to file an answer.
SEC. 4. Order to file an answer. – If the
petition is sufficient in form and substance
Page | 139

to justify relief, the court in which it is filed,
shall issue an order requiring the adverse
parties to answer the same within fifteen
(15) days from the receipt thereof. The
order shall be served in such manner as the
court may direct, together with copies of
the petition and the accompanying
affidavits.
Kanang petition for relief from judgment pareho
ra nag motion. You file that in the same case.
Kanang imung docket number didto pareho ra.
So it is not an independent action. You follow the
docket number of the case on which the decision
was rendered. Dili gani ka mubayad gani ana ug
docket fees. Mura ra gyud na siya ug motion
gitawag lang na siya ug petition.
The court shall issue an order requiring the
adverse parties to answer the same within fifteen
(15) days from the receipt. There is no summons
kay lagi dili ma siya lahi nga kaso. Kun dili na
court may order the adverse party to file within
15 days from receipt of the order.
SEC. 5. Preliminary injunction pending
proceedings. – The court in which the
petition is filed, may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties,
upon the filing by the petitioner of a bond
in favor of the adverse party, conditioned
that if the petition is dismissed or the
petitioner fails on the trial of the case upon
its merits, he will pay the adverse party all
damages and costs that may be awarded to
him by reason of the issuance of such
injunction or the other proceedings
following the petition; but such injunction
shall not operate to discharge or extinguish
any lien which the adverse party may have
acquired upon the property of the
petitioner.
The court may grant perliminary injunction
especially kun duna nay execution. The court
may issue preliminary injunction of course if it is
being prayed for in the petition.
The bond is conditioned that if the petitioner fails
on the trial of the case upon the merits he will
pay the adverse party all damages and costs.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
SEC. 6. Proceedings after answer is filed. –
After the filing of the answer or the
expiration of the period therfor, the court
shall hear the petition and if after such
hearing, it finds that the allegations thereof
are not true, the petition shall be
dismissed; but if it finds said allegations to
be true, it shall set aside the judgment or
final order or other proceedings complained
of upon such terms as may be just.
Thereafter the case shall stand as if such
judgment, final order or other proceeding
had never been rendered, issued or taken.
The court shall then proceed to hear and
determine the case as if a timely motion for
new trial or reconsideration had been
granted by it.
There are two proceedings here. If the petition
for relief from judgment is filed there are two
stages.
1. The court will have to hear the petition
for relief itself.
 Paminawun sa kung meritorious
ba ang petition. If the petition is
not meritorious then the court
will have to deny it. End of the
road na na kung e deny unless
mu file ug petition for certiorari,
etc.
 Then if the petition is granted
there will be another stage.
2. The presentation of evidence.
 The court shall hear the petition and if
after such hearing, it finds that the
allegations thereof are not true, the
petition shall be dismissed; but if it finds
said allegations to be true, it shall set
aside the judgment or final order or other
proceedings complained of upon such
terms as may be just. Thereafter the
case shall stand as if such judgment, final
order or other proceeding had never
been rendered, issued or taken. The
court shall then proceed to hear and
determine the case as if a timely motion
for new trial or reconsideration had been
granted by it.
Although the court may order the adverse party
to file its answer to the petition but the court
cannot order default. Because it is mandated
under Section 6 to hear the petition. Look at.
After the filing of the answer or the expiration of
the period therefor. Sa ato pa even if the
adverse party did not file an answer and the
period has already expired the court shall hear
the petition there shall be no default order.
The order granting a petition for relief is
interlocutory and not appealable. So with the
order denying a petition for relief it is also non-
appealable.
So e grant man sa corte or e deny whichever
order of the court is NOT APPEALABLE.
SEC. 7. Procedure where the denial of an
appeal is set aside. – Where the denial of an
appeal is set adise, the lower court shall be
required to give due course to the appeal
and to elevate the record of the appealed
case as if a timely and proper appeal had
been made.
Where the denial of an appeal is set adise
(meaning the order denying the appeal is set
aside), the lower court shall be required to give
due course to the appeal and to elevate (kung gi
grant galing ang petition for relief) the record of
the appealed case as if a timely and proper
appeal had been made.
Before going to Rule 46 TAKE NOTE that Rule 45
this is a mode of review before the supreme
court. This is a mode of appeal from the decision
rendered by the
1. Court of Appeals
2. Sandiganbayan
3. Court of Tax Appeals
4. and in some cases decisions also
rendered by the RTC but in the exercise
of its original jurisdiction wherein the
Page | 140

appeal is purely on question/s of Law or
legal issues
So generally the SC will only resolve legal issue
or question of law. The finding of facts of the
lower court and other lower courts general rule
are binding upon the SC. Meaning to say as
regards factual issues, kay sa kada kaso duha
rman n aka klase nga issues legal issues and
factual issues. So as a general Rule the Supreme
Court will not disturb as to finding of facts of the
lower court especially if these findings of facts
are affirmed by the CA or the Sandiganbayan. So
dili nana hilabtan sa SC ang ila ana mu resolve
nalang sila kung unsa ang applicable nga balaud.
That is the general rule but there are exceptions:
1. When the conclusion is grounded entirely
on speculations, surmises or conjectures.
2. When there has been a grave abuse of
discretion surrounding the appreciation of
facts
3. When there has been a misapprehension
of facts
4. When the finding of fact of the CA are
conflicting
People vs. Webb
Gr. No. 176389/ 176864
December 14, 2010
One recent sensational case where the SC
reversed the finding of the lower court is the case
of People vs. Webb. Wherein the trial court found
that Alfaro the State Witness according to the
trial court was telling the truth and that’s why the
trial court convicted all the accused including
Webb. The trial court excluded the defense of
alibi because according to the trial court, it did
not find any reason to doubt the testimony of
Alfaro. The finding of facts… kay mao mani ang
finding of facts ining kasuha..”whether or not the
witnesses are telling the truth… whether or not
the testimonies are lies..?” the findings of facts
made by the trial court was affirmed by CA, mi-
ingon ang CA nga “oh wala mi nakita nga sayup”
then the CA affirmed the decision of the trial
court. And it was further appealed to the SC. Pero
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ingon sa SC, although as a general rule findings
of facts by the lower court are final or
conclusiveness upon this court but there are
instances wherein this court will reverese or
review the findings of facts made by the lower
court.
Facts:
On June 30, 1991, Estrellita Vizconde and
her daughters Carmela and Jennifer were brutally
murdered in their home in Parañaque. In an
intense investigation, a group of suspects were
initially arrested by the police, but were
eventually discharged due to suspicions of frame
up. Later in 1995, The National Bureau of
Investigation announced the resolution of the
crime as they presented a star witness Jessica M.
Alfaro who pointed at the accused (herein
appellants) Webb et.al. as the main culprits. She
also included police officer Gerardo Biong as an
accessory to the crime. Relying on Alfaro’s
testimony, information for rape with homicide
was filed by the public prosecutors against
appellants.
Regional Trial Court of Parañaque City
Branch 274 presided over by Judge Tolentino took
over the case. With Alfaro’s detailed narration of
the events of the crime, the court found her
testimony credible, noting that her delivery are
spontaneous and straightforward. On January 4,
2000, trial court rendered judgment finding
accused (herein appellants) guilty as charged,
imposing them the penalty of reclusion perpetua
while Biong, as an accessory to the crime, was
given an indeterminate prison term of eleven
years, four months and one day to twelve years.
Damages were also awarded to Lauro Vizconde.
On appeal, the Court of Appeals affirmed
the trial court’s decision, with a modification on
Biong’s penalty to six years minimum and twelve
years maximum, plus increased awards of
damages to Lauro Vizconde. A motion for
reconsideration on the same court was also
denied, hence the present appeal on the
Supreme Court.
On April 20, 2010, the Court granted the
request of Webb to submit the semen specimen
taken from Carmela’s cadaver on DNA analysis,
believing it is under the safekeeping of the NBI.
The NBI, however, denied that the specimen is
under their custody and that it was turned over
to the trial court. The trial court on the other
hand, denied the claim that the specimen was
under their care. This prompted Webb to file an
urgent motion to acquit denying Webb of his right
to due process.
ISSUE/HELD:
1.) Whether or not Webb was indeed denied of
due process on the premise that the semen
specimen was lost under the care of the
government and must immediately be acquitted?
NO.
2.) WON Alfaro’s testimony is entitled to belief?
NO.
3.) WON Webb’s evidences are proven sufficient
enough to rebut Alfaro’s testimony? NO.
4.) WON Biong acted to cover up the crime after
its commission, thus making himself an
accessory to the crime? NO.
WHEREFORE, the Court REVERSES and SET
ASIDE the Decision dated December 15, 2005
and Resolution dated January 26, 2007 of the
Court of Appeals in CA-G.R. CR-H.C. 0336 and
Acquits accused-appellants Hubert Jeffrey P.
Webb, Antonio Lejano, Michael A. Gatchalian,
Hospicio Fernandez, Miguel Rodriguez, Peter
Estrada and Gerardo Biong of the crimes of which
they were charged for failure of the prosecution
to prove their guild beyond reasonable doubt.
They are ordered immediately RELEASED from
detention unless they are confined for another
lawful cause.
Page | 141

1.) Webb cited Brady v. Maryland, and
claimed that he is entitled to outright
acquittal on the ground of violation of his
right to due process given the State’s
failure to produce on order of the Court
either by negligence or willfull
suppression the semen specimen taken
from Carmela. Webb is not entitled to
acquittal for failure to produce the semen
specimen at such stage. Brady v.
Maryland was overtaken by the U.S.
Supreme Court ruling in Arizona v.
Youngblood which held that due process
does not require the State to preserve
the semen specimen although it might be
useful to the accused unless the latter is
able to show bad faith on the part of the
prosecution or the police. Further, during
the previous appeals made on CA, the
appellants expressed lack of interest in
having a DNA test done, and so the State
cannot be deemed put on reasonable
notice that it may be required to be
produced some future time.
2.) Alfaro’s testimony, was found doubtful.
Testified by Atty. Sacaguing, he claimed that
Alfaro was an asset of the NBI since 1994. When
the officers one day teased her about being
dormant, she became piqued and suddenly
claimed that she know someone who knows
about the massacre. But when the said
“someone” was not presented, she told
Sacaguing that she might as well assume the role
of her informant. Alfaro never refuted such
testimony. It is possible for Alfaro to lie even with
such intricate details, given that she practically
lived in the NBI office. Moreover, the media is all
over the case that everything is thoroughly
reported. Generally, her story lacks sense or
suffers from inherent inconsistencies.
3.) Among the accused, it was Webb who
presented the strongest alibi. His travel
preparations were confirmed by Rajah Tours and
the Philippine immigration, confirming that he
indeed left for San Francisco, California with his
Aunt Gloria on March 9, 1991 on board United
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Airlines Flight 808. His passport was stamped and
his name was listed on the United Airlines Flight’s
Passenger Manifest. Upon reaching US, the US
Immigration recorded his entry to the country.
Moreover, details of his stay there, including his
logs and paychecks when he worked, documents
when he purchased a car and his license are
presented as additional evidence, and he left for
Philippines on October 26, 1992. Supreme Court
accused the trial and court of appeals as having
a mind that is made cynical by the rule drilled
into his head that a defense of alibi is a
hangman’s noose in the faces of a witness
sweaking “I saw him do it.” A judge, according to
the SC, must keep an open mind, and must guard
against slipping into hasty conclusion arising
from a desire to quickly finish the job of deciding
a case. For positive identification to be credible,
two criteria must be met; 1.) the positive
identification of the offender must come from a
credible witness 2.) the witness’ story of what
she personally saw must be believable, not
inherently contrived. For alibi to be credible and
established on the other hand, it must be
positive, clear, and documented. It must show
that it was physically impossible for him to be at
the scene of the crime. Webb was able to
establish his alibi’s credibility with his
documents. It is impossible for Webb, despite his
so called power and connections to fix a foreign
airlines’ passenger manifest. Webb’s departure
and arrival were authenticated by the Office of
the US Attorney General and the State
Department.
The determination of the competence and
credibility of a witness rests primarily with the
trial court, because it has the unique position of
observing the witness’ deportment on the stand
while testifying. It is a fundamental rule that
findings of the trial courts which are factual in
nature and which involve credibility are accorded
respect when no glaring errors, gross
misapprehensions of facts and speculative,
arbitrary and unsupported conclusions can be
gathered from such findings. When the trial
court’s findings have been affirmed by the
appellate court, said findings are generally
conclusive and binding upon this Court.
Then you might ask, why is it that as a rule that
the SC will not disturb the findings of facts of the
lower court. Because it is the trial judge who has
the first hand knowledge. Kay kana man gud mag
appreciate ka whether this witness is telling a lie
or the truth, daghan man gud ug factors maoy e
consider, dili lang ang testimony sa witness,
daghan ug factors dili lng ang iyang gi sulti may
imong tuhuan, maoy imong e consider. Usa sa
mga e consider sa court gawas sa isulti sa
witness mao ang iyang demeanor. Maon ni ang
gi tawag na demeanor evidence. So for
example nag testigos ka ug bahin sa rape, ikay
private complainant, nag testigos ka nga ikaw gi-
rape, pero samtang ka nag testigos diri nag ka
“munga munga” ka you were not straight forward
or labi na gyud kung nag sige kag ngisi ngisi diri..
ah the court will not believe you, more likely the
court will not believe you. But if it is the reversed,
if nag testigos ka you are testifying every
statement and every answer that you give is
punctuated with tears, just imagine noh… naka
undag ka ug testigos kay while ka narrating the
horrible experience that you had just
imagine..noh.. wan-a. most likely the court will
believe what you are telling… so DEMEANOR
EVIDENCE.
So kinsa man ang dunay first hand information as
to how the witness testify? So for example ni
ingon ka nga naka bayad naka sa utang nimo so
while ka gi cross examine gi pangutana ka,
kanus-a man nimo gibayaran? Kinsa man imong
gibayaran? Pila ang imong gibayad? Nag sige
pakag lingi lingi nag sige paka ug huna huna
unsay itubag. That means that you are
fabricating the truth, that means that you are
concocting the defense. So who has the first
hand experience regarding this? IT’S ONLY THE
TRIAL COURT. And that is why when the trial
court says that the court believes that the
testimony of the witness or does not find any
badges of falsehood or walay nakit-an nga
timailhan nga kaning witnesa namakak and when
she was testifying while she was on the witness
Page | 142

stand and even on cross examination she was
straightforward. So most likely the court will
believe.
You remember that the CA aside from its
appellate power. The CA also have there
exclusive orginal jurisdiction. Meaning there are
cases that you have to file them for the first time
before the CA and Rule 46 provides for the
procedure.
RULE 46
Original Cases
Section 1. Title of cases. — In all cases
originally filed in the Court of Appeals, the
party instituting the action shall be called
the petitioner and the opposing party the
respondent.
So this are the parties, sa original cases ni. Lkay
kung appealed cases ang parties tawgon man ug
appellant-appellee. Pero kung original gani,
petitioner-respondent
Section 2. To what actions applicable. —
This Rule shall apply to original actions for
certiorari, prohibition, mandamus and quo
warranto.
Except as otherwise provided, the actions
for annulment of judgment shall be
governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65, and
for quo warranto by Rule 66. (n)
So in other words there are about 5 cases
wherein the CA have original jurisdiction, whether
exclusive or concurrent.
1. Certiorari
2. Prohibition
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
3. Mandamus
4. Quo Warranto
5. Annulment of Judgment
In actions filed under Rule 65, the petition
shall further indicate the material dates
showing when notice of the judgment or
final order or resolution subject thereof was
received, when a motion for new trial or
reconsideration, if any, was filed and when
notice of the denial thereof was received.
It shall be filed in seven (7) clearly legible
copies together with proof of service
thereof on the respondent with the original
copy intended for the court indicated as
such by the petitioner, and shall be
accompanied by a clearly legible duplicate
original or certified true copy of the
judgment, order, resolution, or ruling
subject thereof, such material portions of
the record as are referred to therein, and
other documents relevant or pertinent
thereto. The certification shall be
accomplished by the proper clerk of court
or by his duly authorized representative, or
by the proper officer of the court, tribunal,
agency or office involved or by his duly
authorized representative. The other
requisite number of copies of the petition
shall be accompanied by clearly legible
plain copies of all documents attached to
the original.
The petitioner shall also submit together
with the petition a sworn certification that
he has not theretofore commenced any
other action involving the same issues in
the Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom.
The petitioner shall pay the corresponding
docket and other lawful fees to the clerk of
court and deposit the amount of P500.00
for costs at the time of the filing of the
petition.
The failure of the petitioner to comply any
of the requirements shall be sufficient
ground for the dismissal of the petition.
It shall contain a certification against forum
shopping because it is an initiatory pleading.
Then the docket fees. And of course look at the
last paragraph.
Section 4. Jurisdiction over person of
respondent, how acquired. — The court
shall acquire jurisdiction over the person of
the respondent by the service on him of its
order or resolution indicating its initial
action on the petition or by his voluntary
submission to such jurisdiction.
Didto sa CA kung mu file kag certiorari didto sa
CA walay summons ng e issue didto gawas lang
sa annulment of judgment. Instead what will take
the place of the summons is the ORDER. So ikay
petitioner mu file kag petition ngadto sa court
pareho rani ug petition for review, you have to
serve a copy of your petition to the adverse party
before filing it before the CA.
Q: how can the CA acquire jurisidiction over the
person of the respondent?
A: when it issues an order requiring the
respondent for example to COMMENT ON THE
PETITION.
Section 5. Action by the court. — The court
may dismiss the petition outright with
specific reasons for such dismissal or
require the respondent to file a comment
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on the same within ten (10) days from
notice. Only pleadings required by the court
shall be allowed. All other pleadings and
papers, may be filed only with leave of
court.
Section 6. Determination of factual issues.
— Whenever necessary to resolve factual
issues, the court itself may conduct
hearings thereon or delegate the reception
of the evidence on such issue to any of its
members or to an appropriate court,
agency or office.
Ang CA pwede pud mu conduct ug hearing iyaha
if necessary.
Section 7. Effect of failure to file comment.
— When no comment is filed by any of the
respondents, the case may be decided on
the basis of the record, without prejudice to
any disciplinary action which the court may
take against the disobedient party.
Basta mga higher court na gani ang mu order
nimo nga pa filun ka og comment, nah file nalng
gyud daan. Naignan na ba tamo nga dunay
lawyer diri sa Cebu gi-orderan sa Supreme court
nga pa filun ug comment kay iyang kaso gi
appelar sa SC, nya iya lng gi ignore, nah gi
padakup sa NBI, gi priso… so mag matngun gyud
mu ani.
TAKE NOTE OF THIS RULE! THIS IS VERY
IMPORTANT RULE 47! TAKE NOTE!
RULE 47
Annulment of Judgments of Final Orders
and Resolutions
Section 1. Coverage. — This Rule shall
govern the annulment by the Court of
Appeals of judgments or final orders and
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other
appropriate remedies are no longer
available through no fault of the petitioner.
THIS IS ONE OF THE REMEDIES AFTER THE
DECISION HAS BECOME FINAL AND
EXECUTORY, MEANING THE 15 DAY PERIOD
HAS ELAPSED. Meaning there was no remedy
for appeal, there was no motion for
reconsideration, no motion for new trial and so
the decision has become final and executor.
TAKE NOTE: no longer available through no
fault of the Petitioner. So the petitioner here for
annulment of judgment was not able to file an
appeal, petition for relief and other appropriate
remedies and the reason why he failed to avail of
the said remedies are for reasons other than his
own negligence. By the way the decision here is
rendered by the RTC, you are going to file an
annulment of judgment of the decision rendered
by the RTC. Because petition for annulment of
judgment rendered by the 1st level court is to be
filed before the RTC. Ang decision nga iimong ipa
annul nga e-file nimo sa CA katon rang decision
nga gi render sa RTC, kay katong imong decision
nga imong ipa annul rendered by the first level
courts ang petion for annulment adto nimo e-file
sa RTC.
Section 2. Grounds for annulment. — The
annulment may be based only on the
grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be a valid ground if
it was availed of, or could have been
availed of, in a motion for new trial or
petition for relief.
Dunay specific grounds, because you know
annulment of judgment, just like petition for
relief is an EQUITABLE REMEDY. This is an
exception to the general rule, because this is a
violation of the general rule of immutability of
judgments/decision. Equitable remedy rani siya,
kay ang general rule, after a case has become
final and executor the same cannot anymore be
changed, it cannot anymore be reviewed. So
being an equitable remedy the CA must see to it
that the petition is filed based on the
requirement of the rules of court.
Grounds:
1. EXTRINSIC FRAUD
2. LACK OF JURISDICTION
3. DENIAL OF DUE PROCESS (not given by
the Rules of Court but according to
Jurisprudence Binatiro vs. Cuyos July 30,
2008 )
Ka remember mu sa FAME ug katong sa “momo”
ah momo na nuon..(hehe) katong NEWLY
DISCOVERED EVIDENCE are grounds for new trial.
Now sa annulment of judgment out sa FAME usa
ra gyud ang mahimo nimo nga ground sa
annulment of judgment and that is FRAUD-
EXTRINSIC FRAUD.
Extrinsic Fraud- this is a kind of fraud
perpetrated or done by the adverse party which
prevented the other party from having his
evidence presented in full. Gi-ilad siya and
tungod sa iyang pagilad wala siya makatarong
pag presenter sa iyang ebidensiya.
Lack of jurisdiction- so if a decision is rendered
by the RTC and that court has no jurisidiction but
the aggrieved party was not able to file an appeal
for example, then there is another remedy that is
annulment of the judgment.
So there are only 2 grounds given by Rule 47 but
dunay ikatulo.
Denial of due process- when an aggrieved
party is denied of due process and was not able
to file an appeal or other remedies he can avail of
this remedy
Page | 144

SPOUSES GORGONIO BENATIRO vs. HEIRS
OF EVARISTO CUYOS
Gr. No. 161220
July 30, 2008
“…Persons who do not participate or had no
notice of an extrajudicial settlement will
not be bound thereby. It contemplates a
notice that has been sent out or issued
before any deed of settlement and/or
partition is agreed upon and not after such
an agreement has already been executed.”
Facts:
Spouses Evaristo and Agatona Cuyos
were blessed with 9 children. When Evaristo died
he left 6 parcels of land covered by Tax
declaration all under the name of Agatona Cuyos.
Due to the disagreement between the heirs
regarding administration and partition they
decided to appoint a Commissioner to effect the
agreement of the parties and to prepare the
project of partition for the approval of the court.
Atty. Taneo was appointed Commissioner, a
meeting (comment: this is the publication part,
where Atty. Taneo allegedly sent out telegrams
to all the heirs to cause their appearance for the
meeting/project partition) was held among the
nine heirs Gloria, Salud and Enrique failed to
attend, that since some of the heirs present
resided outside the province of Cebu, they
decided to go ahead with the scheduled meeting.
In his report he declared that the heirs who were
present agreed to the following:
1. Agreed to consider all income of the
properties of the estate during the time that
Francisco Cuyos, one of the heirs, was
administering the properties of the estate
(without appointment from the Court) as having
been properly and duly accounted for.
2. Agreed to consider all income of the
properties of the estate during the administration
of Gloria Cuyos Talian, (duly appointed by the
Court) also one of the heirs as having been
properly and duly accounted for.
3. Agreed to consider all motions filed in
this proceedings demanding an accounting from
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Francisco Cuyos and Gloria Cuyos Talian, as
having been withdrawn.
4. Agreed not to partition the properties
of the estate but instead agreed to first sell it for
the sum of P40,000.00 subject to the condition
that should any of the heirs would be in a
position to buy the properties of the estate, the
rest of the eight (8) heirs will just receive only
Four Thousand Pesos (P4,000.00) each.
5. Agreed to equally divide the
administration expenses to be deducted from
their respective share of P4,000.00
CFI approved the agreement issued in
the Order dated December 16, 1976, however
CFI disapproved the claim of respondent Gloria
for the sum of P5,570.00, as the same had been
allegedly disregarded by the heirs present during
the conference.
After the Court’s approval of the project
partition, administration was assigned to one of
the heirs, Columba Cuyos and she then executed
a Deed of Absolute sale to herein Petitioners for
the 6 parcels of land.
On 2001 Salud and in representation of
his co-heirs filed a petition for annilment of the
order dated December 16, 1976, the same
being based on a Commissioner's Report, which
was patently false and irregular; that such report
practically deprived them of due process in
claiming their share of their father's estate.
Issues:
1. Whether or not annulment is the
proper remedy after a lapse of more
than 20 years? (remedial law; civil
procedure) YES
2. Whether or not the heirs were
deemed constructively notified and
bound by an extra-judicial settlement
and partition of the estate regardless
of their failure to participate therein,
when the extra-judicial settlement
and partition has been duly
published? NO.
3. Whether or not the respondents are
barred from assailing the judgment
after the lapse of 24 years from its
finality on ground of laches and
estoppel. NO.
Rulings:
1. An action to annul a final judgment on
the ground of fraud will lie only if the fraud is
extrinsic or collateral in character. Extrinsic fraud
exists when there is a fraudulent act committed
by the prevailing party outside of the trial of the
case, whereby the defeated party was prevented
from presenting fully his side of the case by fraud
or deception practiced on him by the prevailing
party. Fraud is regarded as extrinsic where it
prevents a party from having a trial or from
presenting his entire case to the court, or where
it operates upon matters pertaining not to the
judgment itself but to the manner in which it is
procured. The overriding consideration when
extrinsic fraud is alleged is that the fraudulent
scheme of the prevailing litigant prevented a
party from having his day in court.
We find that it should be annulled
not on the ground of extrinsic fraud, as
there is no sufficient evidence to hold Atty.
Taneo or any of the heirs guilty of fraud,
but on the ground that the assailed order is
void for lack of due process.
It was also alleged that out of the nine
heirs, only six attended the conference; the
Commissioner did not state the names of those
present, but only those heirs who failed to attend
the conference, namely: respondents Gloria,
Salud and Enrique who, as stated in the Report,
based on the return of service, could not be
located in their respective given addresses.
However, there is nothing in the records that
would establish that the alleged subpoenae,
supplemented by telegrams, for the heirs to
appear in the scheduled conference were indeed
sent to the heirs.
It bears stressing that the purpose of the
conference was for the heirs to arrive at a
compromise agreement over the estate of
Evaristo Cuyos. Thus, it was imperative that all
the heirs must be present in the conference and
be heard to afford them the opportunity to
protect their interests. Considering that no
separate instrument of conveyance was executed
among the heirs embodying their alleged
agreement, it was necessary that the Report be
signed by the heirs to prove that a conference
Page | 145

among the heirs was indeed held, and that they
conformed to the agreement stated in the
Report.
2. NO. The procedure outlined in Section 1
of Rule 74 is an ex parte proceeding. The
rule plainly states, however, that persons
who do not participate or had no notice of
an extrajudicial settlement will not be
bound thereby. It contemplates a notice
that has been sent out or issued before any
deed of settlement and/or partition is
agreed upon (i.e., a notice calling all
interested parties to participate in the said
deed of extrajudicial settlement and
partition), and not after such an agreement
has already been executed as what
happened in the instant case with the
publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does
not constitute constructive notice to the heirs
who had no knowledge or did not take part in it
because the same was notice after the fact of
execution. The requirement of publication is
geared for the protection of creditors and was
never intended to deprive heirs of their lawful
participation in the decedent's estate. In this
connection, the records of the present case
confirm that respondents never signed either of
the settlement documents, having discovered
their existence only shortly before the filing of
the present complaint. Following Rule 74, these
extrajudicial settlements do not bind
respondents, and the partition made without
their knowledge and consent is invalid insofar as
they are concerned.
Applying the above-mentioned case by
analogy, what matters is whether the heirs were
indeed notified before the compromise
agreement was arrived at, which was not
established, and not whether they were notified
of the Commissioner's Report embodying the
alleged agreement afterwards.
3. NO. Thus, a void judgment is no judgment at
all. It cannot be the source of any right nor of any
obligation. All acts performed pursuant to it and
all claims emanating from it have no legal effect.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Hence, it can never become final and any writ of are prevented to present your
execution based on it is void. case/evidence fully.
JD: Extrinsic fraud shall not be a valid ground if it Pero kung naka presenter kag ebidensya, you
was availed of, or could have been availed of, in cannot say that there was extrinsic fraud, there
a motion for new trial or petition for relief. Sa ato could be fraud tbut that is intrinsic fraud.
pa if the petitioner could have filed motion for
new trial but he did not, if the petitioner could
have filed for petition for relief of judgment but You notice that when the court renders
he did not then he could not avail of annulment judgment over a case wherein it has no
of judgment. He could not avail anymore of
jurisdiction its decision is void. A void
annulment of judgment. Because petition for
annulment of judgment is only available to an
judgment can be attacked collaterally or
aggrieved party who failed to avail of other directly if it is void on its face. It can be
remedies without fault on his part. attacked directly if its nullity is not apparent
Take note of the meaning of extrinsic fraud, Direct Attack Collateral Attack
because intrinsic fraud cannot be a ground for Main objective is to Made when in another
annulment of judgment it could not also be a annul, set aside or action to obtain a
ground for new trial.it is only extrinsic fraud. enjoin enforcement, or different relief, an
if property has been attack on the judgment
Q: What is Extrinsic Fraud? disposed the aggrieved is made as an incident
party may sue for in said action. This is
A: It is a fraudulent act exerted by the adverse recovery. proper when the
party which prevented the aggrieved party from File an actionto declare judgment is null and
having a trial or from presenting his evidence or its nullity if not void on void on its face.
case fully. its facebut the nullity is Where it is patent that
INTRINSIC (nakatago) the court which
rendered said
Example: judgment has no
jurisdiction
a. Ang iyang abogado gipalit sa pikas, so
kay gibayaran naman sa pikas you are
Another remedy for a void decision is filing a
prevented from having your case
petition for certiorari. Mao ni siya ang last
presented fully, kay dili naman to mani-
remedy. That is the last remedy aside from
nuod imong abogado gipalit naman to.
annulment of judgment. So kanag pag file ug
b. You are misled. Gi-ignan ka nga ayaw
petition for annulment of judgment, ang pag file
nlang attend sa trial tungod kay
ug petition for certiorari these are so actions
nagkasinabot naman ta. Pero ang
DIRECTLY ATTACKING A VOID DECISION.
nahitabo ana wala na nuon k aka
presenta sa imong ebidensya and your
right to present evidence is waived and Q: now unsa man nang Collateral Attack?
you can no longer present evidence. Gi-
ignan ka nga kung maka dawat kag A: You can question the decision even if you did
notice, ah e-ignore nalng na, ayaw not file a case purposely to question the same.
nalang ug tunga. Because of the
fraudulent act of the adverse party you
Page | 146

Meaning in a collateral attack there is no need for
you to file a case. It can be attacked anytime
anywhere.
ANCHETA vs. ANCHETA
March 4, 2004
Gr. No. 145370
Ang petitioner purposely alleged in the petition a
wrong address of his wife. Nagbuwag naman gud
ni sila nya gusto niya ipa-annul. Gusto niya ipa
annul. Iyang gi-allege ang sayup nga address sa
iyang asawa. Then gawas nga sayop ang address
the sherrif who served the summons sayop pud
nga mode ang iyang gi-gigami, iyang gigamit ang
substituted service of summons, because we
know that there are certain requirement to avail
of the substituted service of summons. So invalid
and service of summons. Another defect in the
decision is that wala siya ka file ug answer, the
wife is declared in default, because you know in
petitions for annulment of judgment there is no
default, the prosecutor assigned must investigate
whether there was collusion between the parties
(mao ra ni nga civil case nga nay fiscal). The
prosecutor assigned did not raise any objection
to the proceedings. So ang sayop ani: 1. Wrong
ang address, 2. Sayop ang service of summons,
3. Ang trial court me declare ug default, 4. The
prosecutor did not raised any objection to the
proceeding 5. And the court made an order
declaring the marriage declared null and void ab
initio. Imbis decision ang iya pung gi issue order.
Lahi baya na ang order lahi pud baya na ang
decision. So what the wife did upon learning of
the order/decision, she filed a petition for
annulmentof the decision under rule 47 before
the CA on the ground of extrinsic fraud and lack
of jurisdiction of her person. The CA denied her
petiteion on the ground that she did not comply
with the conditions precedent of first resorting to
the aforesaid remedies (meaning motion for new
trail petition for relief from judgment etc..)
because you know kana man gud kung mu file ka
ug annulment of judgment e-allege na nimo nga
ang ground mao ni nga extrinsic fraud, nga ikaw
wla k aka avail sa motion fr new trial etc without
your fault. Kung dili gani ka ka satisfy ana, kung
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
dili gani na nimo ma state nga wala ka maka
avail ani nga mga remedies without your fault
your petition for annulment of judgment will be
considered without merit. Imo jud na siyang isulti
kana if your ground is fraud.
REPEAT: if the ground for annulment of
judgment is Fraud, the petitioner must allege that
he had not avail of the remedies of new trial,
appeal or petition from relief from judgment and
he must justify the failure to avail of such
remedy. Meaning to say he must state in his
petition that he failed to avail of this remedy
without his/her fault.
The SC reversed the findings of the CA. the CA
was partially correct in saying that a party must
justify the reasons of not availing of the remedies
mentioned before availing of the annulment of
judgment under Rule 47 however the CA erred in
dismissing the petition. Because the petition for
annulment was not only grounded on Fraud but
was also grounded on Lack of Jurisdiction.
In other words if you ground is fraud you must
state or allege the reason why you did not avail
of the motion for new trial, certiorari, or petition
for relief without your fault. Pero kung ang imong
ground is also lack of jurisdiction the petition
would be consider meritorious because on such
ground there is no need to allege that you were
not able to avail of motion for new trial, appeal,
petition for relief of judgment without your fault.
Section 3. Period for filing action. — If
based on extrinsic fraud, the action must
be filed within four (4) years from its
discovery; and if based on lack of
jurisdiction, before it is barred by laches or
estoppel.
So it depends upon the ground if based on:
a. EXTRINSIC FRAUD- 4 years from
discovery
b. LACK OF JURISDICTION- before it is barred
by laches or estoppel (so pila man ni ka
years? Pila man ang prescriptive period?.
Under the civil code the prescriptive
periods fro actions on judgments is 10
years. Pero hinumdumi nga ang
prescriptive period is difference from
laches. Because your case could be
dimissed not because on the ground of
prescription but because on the ground
of laches. For example 10 years ang
prescriptive period pero dili na nimo gi
file sa ika-9. Ah wala pa siya mi prescribe
pero possible nga ma dismiss gihapon
imong kaso not on the ground of
prescription but on the ground of laches.
Laches- in an unreasonable delay or sleeping on
your rights. An unreasonable delay in claiming
your rights. Nganong nag hulat paman kag 9 ka
tuig before nimo gi fila ang kaso. So
unreasonable delay.
Kay bisan pag wala mi prescribe ang action your
case could still be dismissed not on the ground of
prescription but on the ground of laches. For
example, 10 yrs ang prescriptive period dri na
nmu gi file sa ika-9, ah wala pa xa mi prescribe.
Possible gihapon nga ma dismiss imung kaso not
on the ground of prescription but on the ground
of laches. What is laches? Unreasonable delay or
sleeping on your rights, unreasonable delay of
filing your case. Nganung naghulat pa man kag
(6 ka tuig) *6 jud iya gmention* unsa man imung
gibuhat?
SEC. 4. Filing and contents of
petition.—The action shall be
commenced by filing a verified
petition alleging therein with
particularity the facts and the law
relied upon for annulment, as well
as those supporting the petitioner’s
good and substantial cause of
action or defense, as the case may
be.
The petition shall be filed in
seven (7) clearly legible copies,
together with sufficient copies
corresponding to the number of
respondents. A certified true copy
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of the judgment or final order or
resolution shall be attached to the
original copy of the petition
intended for the court and
indicated as such by the petitioner.
The petitioner shall also submit
together with the petition affidavits
of witnesses or documents
supporting the cause of action or
defense and a sworn certification
that he has not theretofore
commenced any other action
involving the same issues in the
Supreme Court, the Court of
Appeals or different divisions
thereof, or any other tribunal or
agency; if there is such other action
or proceeding, he must state the
status of the same, and if he should
thereafter learn that a similar
action or proceeding has been filed
or is pending before the Supreme
Court, the Court of Appeals, or
different divisions thereof, or any
other tribunal or agency, he
undertakes to promptly inform the
aforesaid courts and other tribunal
or agency thereof within five (50
days therefrom. (n)
Ok SEC 4: the filing of the contents of the petition
it must be verified considering that esp your
ground is fraud take note that the particular
acts/facts constituting fraud must be alleged. It is
not enough that you will say “I was not able to
file to Motion for New Trial(MNT), Appeal or
Petition for Relief on Judgement on the ground of
fraud “. Kana mo ingun ka ana, i-dismiss jud.
Unsa man d ai sakto? You state jud the particular
facts nganung nakaingon ka nga adunay fraud.
Mo ingun ra gale ka nga the petitioner was not
able to appeal, file a MNT, or Petition for relief of
judgement on the ground of extrinsic fraud. Kana
ra gane. Your petition shall be dismissed. Why? I
repeat. Unsay sakto? You have to state the
particular facts/ acts committed by the adverse
party which constituted extrinsic fraud. So, in yur
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
petition in Sec 4 you should alleged with
particularity the facts and the law relied upon for
annulment as well as those supporting the
petitioner’s good and substantial cause of action
or defense. Pareha ra ni xag MNT, kinahanglan
aduna kay Affidavit of Merits.
What is Affidavit of Merits?
In your Affidavit of Merits you state with
particularity the facts/ acts committed by the
adverse party which constitute extrinsic fraud
aside from that you must also state your defense
kung defendant ka and your defense must be
meritorious. Kay kung ang mung defense naaa
tuod fraud pero kung ang mimung defense imu
ra pud i-admit ang allegations, your petition is
not meritorious coz u have no defense. Kung
imung i-admit tinuod btaw naka utang ko wala ko
kabayad. Nganung ipa annul pa man nimu ang
resulta mao ra man. Ang imung depensa kung
pananglitan i-annul ang desisyon mausab ba ang
desisyon? DILI. Kay ang imung evidence dili man
maka disturb sa findings. So, what will happen to
your petition? The same shall be denied because
it has no merits. To make it meritorious it is
important that you allege that there is extrinsic
fraud. You state the facts/acts constituting
extrinsic fraud. Aside from that you allege your
defense; your defense must be meritorious. (oh-
em-ge! Kadaghan jud ni gibalik2:0)that is if you
are the defendant.
If you are the plaintiff, aside from the particular
facts/ acts that would constitute fraud u also
state in your petition as well as affidavit of merits
that u have a cause of action, justifiable cause of
action strong evidence for ur cause of action.
It shall be in 7 copies the petitioner will submit
together with the petition affidavit of witnesses
or documents supporting the cause of action or
defense and a Cert Against Forum Shopping.
SEC. 5. Action by the court.—Should
the court find no
substantial merit in the petition,
the same may be dismissed
outright with specific reasons for
such dismissal.
The action of the court, the court may dismiss
the case outright. With spec reason for such
dismissal the court can dismiss it motu propio
without any motion to dismiss filed by adverse
party kay equitable remedy different from other
cases. But should the court find prima facie merit
in the petition said shall be given due course and
summons shall be served on the respondent. This
time there is summon not order but SUMMONS.
Pareho ra gud na. Summon is the same as
ORDER na nga patubagon ka. The difference is
that nay marking SUMMONS. Ang usa sa petition
for Certiorati dli summons kun dili order to
comment.
SEC. 6. Procedure.—The procedure
in ordinary civil cases shall
be observed. Should a trial be
necessary, the reception of the
evidence may be referred to
a member of the court or a judge of
a Regional Trial Court. (n)
Then, the procedure of ordinary cases shall be
observed. Should the trial be necessary the
reception of evidence with the refer to the court
to adjudge is the RTC.
What would be the effect of judgement? If
granted, the decision or final order shall be set
aside. The judgement for the annulment shall set
aside the question of judgement or final order
and render the same null and void without
prejudice to the original action being re filed in
the proper court. Sato pa if lack of jurisdiction the
appellate court may order to file the case in the
proper court if lack of jurisdiction.
SEC. 7. Effect of
judgment- A judgment of annulment
shall set aside the questioned
judgment or final order or resolution
and render the same null and void,
without prejudice to the original
action being refiled in the proper
court. However, where the judgment
or final order or resolution is set
aside on the ground of extrinsic
fraud, the court may on motion
order the trial court to try the case
as if a timely motion for new trial
had been granted therein. (n)
However where the judgment is set aside on the
ground of extrinsic fraud the court has
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jurisdiction only that the petitioner was not able
to present his case fully on ground of extrinsic
fraud, the court may on motion order the trial
court as if a timely motion for new trial had been
granted.
SEC. 8. Suspension of prescriptive
period.—The prescriptive period for
the refiling of the aforesaid original
action shall be deemed suspended
from the filing of said original action
until the finality of the judgment of
annulment. However, the
prescriptive period shall not be
suspended where the extrinsic fraud
is attributable to the plaintiff in the
original action. (n)
SEC. 9. Relief available.—
The judgment of annulment may
include the award of damages,
attorney’s fees and other relief.
If the questioned judgment or
final order or resolution had already
been executed, the court may issue
such orders of restitution or other
relief as justice and equity may
warrant under the circumstances.
(n)
SEC. 10. Annulment of judgments
or final orders of Municipal Trial
Courts.—An action to annul a renders a decision in a criminal case and the
judgment or final order of a
Municipal Trial Court shall be filed
in the Regional Trial Court having
jurisdiction over the former. It
shall be treated as an ordinary civil
action and sections 2, 3, 4, 7, 8
and 9 of this Rule shall be
applicable thereto. (n)
As regards petition for annulment of
decision rendered by the MTC court the
same should be file with RTC and the same
shall be treated as an ordinary civil action.
So, that is petition for annulment. This is
one of the remedies available to a party
after the decision has been final and
executor. This is very important; the
judgement has become final and executory.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Pero possible pa nga adunay remedy and
one of these is the annulment of
judgement. So, we have discussed 2
remedies after the decision has become
final and executory. Petition for Relief of
Judgement and annulment of decision
aduna pay usa Rule 65, petition for
certiorari. It one of the post judgement
remedies, a remedy after the decision has
become final and executory. We will discuss
it later on.
RULE 48
PRELIMINARY CONFERENCE
(in the CA)
It is similar with the Pre trial before the trial
court.
Nagchika si Judge
Now before we go to Rule 39, though ato ni i-
dicuss sa crim pro, ato giingon ganiha na ang
criminal cases wherein the penalty sentence
imposed by the court is reclusion perpetue, life
sentence or death shall be brought with the
Supreme court by mere notice of appeal, you
have to take into consideration the case of
PEOPLE VS.MATEO.
Unsa man naa diha sa People vs. Mateo?
Kaniadto gud kanang wa pa ning people vs.
Mateo (I think kaning People vs. Mateo
napromulagate ni mga 2000 kapin) when an RTC
accused is sentenced with reclusion perpetua or
life imprisonment or death( befeor the repeal of
death penalty) all you have to do is file a notice
of appeal to the trial court unya deritso didto sa
SC. Unya kung death penalty kaniadto automatic
appael bisan di ka gusto na i-review, even if the
accused will not file a notice of appeal.
Niya niabot man ang higayon... usa ragud ka
Supreme Court unya tibuok nasod RTC perting
daghana, unya daghan kaayong badlungon. So,
daghang kaso gapundok didto sa SC, ah mangita
jud paagi unsaon pag-unload. Ah ingon man ang
SC, “Ingon man ang Constitution nga criminal
cases shall be appealed to the SC by mere notice
of appeal where the penalty imposed is reclusion
perpertua or life sentence shall be appear to the
SC by mere notice of appeal”. Ingon napud ang
SC, “wa man ga-dili nga ipa-review sa nato usa
sa Court of Appeals”. Ang constitution niingon na
“it should be brought to the SC by mere notice of
appeal”. So ang nahitabo ingon ang SC nga, “ato
sa ipa-review sa CA ang finding of facts kay bitay
man gud. So unsay gibuhat? From that case of
people vs. Mateo ang mga kaso decided by the
RTC unya ang penalty is reclusion perpetua or life
sentence adto i-apealar by mere notice of appeal
sa Court of Appeals. Then Court of Appeals na, di
naka muderitso sa SC.
Nganong giingon ana man sa SC? Kai arong
masala aron di sila didto malumos sa mga kaso.
Dayon supposed the court of appeals will dismiss
the case, aw mao na na i-dismiss. Pananglitan i-
affirm unya ang accused di lang gihapon
kontinto, gikan sa CA muadto siya sa SC but by
mere notice of appeal still. Nganong by mere
notice of appeal man? In compliance with the
provision of the constitution nga “a decision
where the court imposed the sentence of
reclusion perpetua or life sentence it should be
brought to the Court by mere notice of appeal.
Unya gamay-gamay nlang, though naay kaso na
muabot sa SC dili pareho sa una na daghan
kaayo, karon gamay-gamay nlang kai mas hasa
man sa CA.
Let’s go now to Rule 39
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Now, execution.
Execution is the most important part of the
proceedings kai this is the fruit of your labor after
so many years, especially as regards civil cases.
You know it will take years before you can taste
the fruit of your labor.
What do you mean by Execution? This is the
remedy for the enforcement of the
judgement. It is done by filing a motion for
execution after the decision that becomes final
and executory. Decision is useless unless it is
executed.
After a decision becomes final and executory, the
decision of the same becomes ministerial duty of
the court even the decision is erroneous. Bisag
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pa sayop nang decision basta ma-final gani na,
unless na-avail to nimong mga petition for relief,
annulment, certiorari... Even how erroneous the
decision is the same has to be executed because
the error/errors will also become final and
executory.
OKey, let’s go now to Section 1.
Section 1. Execution upon judgments or
final orders.
Execution shall issue as a matter of right,
on motion, upon a judgment or order that
disposes of the action or proceeding upon
the expiration of the period to appeal
therefrom if no appeal has been duly
perfected.
If the appeal has been duly perfected and
finally resolved, the execution may
forthwith be applied for in the court of
origin, on motion of the judgment obligee,
submitting therewith certified true copies
of the judgment or judgments or final order
or orders sought to be enforced and of the
entry thereof, with notice to the adverse
party.
The appellate court may, on motion in the
sa me case, when the interest of justice so
requires, direct the court of origin to issue
the writ of execution.
So execution shall issue as a matter of right
on motion of a judgment or order that disposes
upon the expiration of appeal therefrom if no
appeal has been duly perfected. So, section 1
presupposes that after the decision is rendered
there was no appeal, there was no new trial... so
after the lapse of 15 days the decision now
becomes final and executory and execution of
the judgement becomes a matter of right.
Meaning the trial court does not have any choice
but to execute the decision, if the appeal is
perfected but it has been finally resolved the
execution be applied in the court of origin (mao
ni gitawag sa Latin ug court a quo).
On motion of judgement obligee. Unsa ning
judgement obligee? Katong nakadaog.
Submitting therewith certified true copies
of the judgment or judgments or final order
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
or orders sought to be enforced and of the
entry thereof, with notice to the adverse
party. So, kung dunay appeal but the same has
been already resolved then execution shall also
become a matter of right on the part of the
winner after the lapse of the 15 day period.
Now, kadiadto dugay na nimu ma-execute labhi
na didto sa SC or sa CA. Ngano man? Kai diba
ang original record ipadala man didto sa ilaha,
ang trial court dili mu-grant sa imu motion for
execution hangtod sa ang original record should
be returned (kinahanglan huwaton jud to nimu na
mabalik, niya daghan biya kaso didto). Ahh mao
na gipangitaan ug paagi. So when the rules of
civil procedure where amended in 1987
gipangitaan ug paagi, unsaon man ni nga imu
pang pahuwaton pila pa katuig unya naa pajud
proof of entry of judgement.
Karon dali-dali na. Ngano man? Because under
second phar: even if the original record is not yet
returned or remanded to the court a quo regime
what the winning party will attach to his motion
for execution is just a certified true copies of
judgement or decision and the entry
thereof. So, I-attach nimu certified true copy
unya mangayo ka ug certification sa clerk of
court didto sa appellate that the decision had
already become final and executory and there
was entry of judgement.
Q: Kanus-a man to ENTRY OF JUDGMENT?
A:Automatic upon the finality of the decision.
Now, the purpose is to avoid delay. Duna pajud
instances nga the trial court for whatever reason
will not grant the motion for execution. File ka
motion for execution unya ang ubang judges kai
naanad man to na maghuwat sa original record,
usahay gud kanang ma-abogado ka unya diha
napod ka mubasa balik sa libro kung duna nasad
problema, mao pud nang huwis kapuyan ug
nasad so magsalig nalang sa usual practice! So,
naa na motion for execution ug gi-attach ang
certification ug entry of judgement unya imu gi-
deny, kai lage wa pa ang original record ma-
return ug wa makabasa na duna nay amendment
na. So unsa may buhaton? Dunay remedy ang
prevailing party by asking or by filing before
the appellate court to direct the court of
origin to issue the writ of execution (last
phar.). So, in the event for whatever reason the
trial court will deny or would delay the issuance
of the writ of execution the prevailing party can
file a motion before the appellate court that has
resolved the appeal to order the court of origin to
issue the writ of execution. Dili motion for
execution ang file didto sa appellate court kundi
motion to direct the court of origin to issue
the writ of execution. Writ of execution shall
exclusively be issued ONLY by the court of origin.
Dunay duha kaklase nang “FINAL”:
1. Final and Appellable
2. Final and Executory
When you say final and appealable, kato nang
within 15-day period to appeal.
Katong final and executory, mao tong lapse of
15-day period and there was no appeal.
Q: Unya unsa mai porma sa imong motion for
execution?
A: Your motion for execution shall contain notice
of hearing unya the adverse party shall be
furnished with copy of your motion, tanan katong
sa Rule 15.
Q: What is the remedy if your motion for
execution is denied?
A: Aw, mao tong gisulti nato ganiha: if
the motion for execution is denied and
there is no appeal taken, one of the
remedies you can avail of is the last
paragraph (direct the court of origin to
issue the writ of execution) or another
remedy is you can file a petition for
mandamus, naa na pursuant to the
ruling of the SC in the case of Greater
Metropolitan Manila Solid Waste
management Committee vs. Jancom
Environmental Corporation, June, 13,
2006. According to the SC mandamus is
the remedy from an order denying the
issuance of writ of execution.
Although sa inyong mga libro naa dihay
mga decisions nga ang order denying
motion for execution can be question
thru an appeal from that order BUT When
the issuance of the decision of the SC in
the case of Greater Metropolitan
Manila Solid Waste Management
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Committee then mandamus is the
remedy from that order. And we believe
that that is logical because once the
decision is final and executory issuance
of the writ of execution becomes a
matter of right. And if it is a matter of
right and denied without justifiable
reason then that is a ground for
mandamus.
So, judgement is enforceable by
execution once it becomes final and
executory. Unya sa inyong libro duna
nasad execption. General Rule: once
the decision becomes final and
executory, execution becomes a
matter of right. But ang SC nihatag
nasad ug mga Exceptions wherein even
if a decision becomes final and executory
the same could not be executed. Okey,
unsa man ning mga reasons?
Exceptions ni ha:
1. When there has been a
change of situations of the
parties which makes the
decision inequitable.
2. When it appears that the
controversy has never been
submitted to the judgement of
the court.
3. When the judgement was
novated by subsequent
agreement of the parties.
Diba ato to gi-discuss ganiha
pa jud na bisan duna nay
decision, bisag nahimu na nang
final and executory ang mga
parties pwede ra gihapon maka
enter into settlement or
compromise agreement.
Therefore with that
agreement/with that settlement
voluntarily entered into by the
parties, execution of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
decision will not anymore be
reasonable.
4. When it appears that the writ
was improvidently issued.
5. When the writ is defective in
substance.
6. When the writ issued against
the wrong party.
7. When the judgement debt has
been paid or has been satisfied.
That is the ruling of the SC in the old case
of Wolfson vs. del Rosario, 46Phil41
(naa sa inyo libro ni Regalado).
General Rule ( ako nasad ning gihatag
ninyo): Before a decision becomes final
and executory the court can still amend
or change the same. But after the
decision become final and executory, in
line with the doctrine of immutability
of the decision the court cannot amend
or cannot change the same, however
there are also exceptions:
1. Clerical errors
2. Amendment nunc pro tunc.
Unsa man ning nun pro tunc? Meaning
there has been a decision rendered before
but it has not been recorded in the docket.
Kanang maong decision sa court usually
kanang dispositive portion kinahananglan
na siya i-record didto sa book of decisions.
So, kung wala ni siya marecord (meaning
anang nunc pro tunc, eninglish ana, is “now
for then”) the court now will order that such
decision or final order be recorded, mao
ning gitawag na decision nunc pro tunc or
order nunc pro tunc.
Okey, let’s go now to section 2
Sec. 2. Discretionary execution.
(a) Execution of a judgment or final order
pending appeal.— On motion of the
prevailing party will notice to the adverse
party filed in the trial court while it has
jurisdiction over the case and is in
possession of either the original record or
the record on appeal, as the case may be,
at the time of the filing of such motion, said
court may, in its discretion, order execution
of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.
(b) Execution of several, separate or partial
judgments.— A several separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
DISCRETIONARY APPEAL
Genaral Rule: When a party files an appeal or
before decision becomes final an executory, the
same cannot be executed. So, sa dili pa ma-final
and executor ang decision dili pa na puede nimu
ma-execute ana.
But there are instances wherein execution
pending appeal may be allowed. And these are
stated in Section 2 of rule 39.
So, on motion of the prevailing party with
notice to the adverse party filed in the trial
court while it has jurisdiction over the case
(nahinumdum mo sa residual jurisdiction? So
repeat “while it has jurisdiction of the case”. Sa
ato pa it could be before an appeal is perfected
or it could be the appeal is perfected but before
the record of the case is transmitted to the
appellate court) and is in possession of either
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the original record or the record on appeal,
as the case may be, at the time of the filing
of such motion, said court may, in its
discretion, order execution of a judgment
or final order even before the expiration of
the period to appeal.
Q: So, where are you going to file the motion for
execution pending appeal?
A: It could be filed at the trial court, provided
that the trial court has jurisdiction over the case.
And if the trial court has no more jurisdiction over
the case you can file the motion before the
appellate court.
Now, kaning execution of a decision pending
appeal this is an exception to the rule. So, being
exception to the rule the trial court or the court
executing the decision should look into the
grounds or reasons of the motion why is it that
the prevailing party ask or requested that the
decision be executed while pending. So,
kailangan jud naay mga katarungan dili puede
nga (because it is exception to the rule) wai
ground or reason. Ohh look at: Discretionary
execution may only issue upon good
reasons to be stated in a special order after
due hearing.
“Good reasons”, ang problema ani kai ang
codal provisions of the rules of court wala
nagsulti kung unsa ning mga good reasons.
Q: Unsa man ning good reasons?
A: Aw, wala dilha sa codal pero naa sa
jurisprudence dunay mga decision sa SC na nag-
ingon na kana good reason na. Naa diha sa kang
Regalado, kana bitaw after sa Sec. 4. Naay mga
decision diha wherein tha SC said that these are
good reasons:
1. Where the lapse of time would make
the ultimate judgement defective
2. Where debtors were withdrawing their
business and assets from the country
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
3. Where the appeal is clearly dilatory
4. When the judgement is for support and
the beneficiary needs thereof
Kaning action for support usa ni sa mga kaso
wherein execution pending appeal can be
allowed. Pananglitan ikaw ang papa, wa ka
maghatag ug support. Gimanduan na
musupport ka but you filed an appeal. Just
imagine kung i-stay pa nang decision, kinsa
man imong pakan.on ana mamatay naman to
siya? So, dunay reason ana nganong kanag
order or judgement for support i-allow ang
execution pending appeal. Because support is
important for the survival of the complainant.
5. Where judgement debtor is in
imminent danger of insolvency or a is
actually insolvent
6. Where the prevailing party is of
advance age.
Naa na sa pre-departure area ang
prevailing party...
So, these are some of the good reasons that can
be cited by the court in granting motion for
execution pending appeal.
Another good reason:
7. When the goods of the judgement will
perish or will deteriorate during the
pendency of an appeal.
So, usbon nato, discretionary execution may
only issue upon good reasons to be stated
in a special order after due hearing.
Then, execution of several, separate or
partial judgment, the same shall be
executed under the same terms and
conditions as execution of a judgment or
final order pending appeal.
Sec. 3. Stay of discretionary execution.
Discretionary execution issued under the
preceding section may be stayed upon
approval by the proper court of a sufficient
supersede as bond filed by the party
against whom it is directed, conditioned
upon the performance of the judgment or
order allowed to be executed in case it shall
be finally sustained in whole or in part. The
bond thus given may be proceeded against
on motion with notice to the surety.
There two kinds of execution:
1. Compulsory execution. Katong after finality
of decision.
2. Discretionary execution. Katong before
finality of decision.
The discretionary execution can be stayed by the
proper court upon supersedeas bond. Specially
kanang ejectment, pananglitan napildii ka sa
unlawful detainer case palayason naka, now
gusto ka nga i-stay ang judgement there are
three things that you should do:
1. You file an appeal
2. Within the period to file an appeal, you should
put up supersedeas bond.
3. You should deposit your monthly rentals if any
before the appellate court (kani sa ejectment ni)
Q: Unsay amount sa supersedeas bond? Unsaon
man pag determine ana?
A: The amount of the supersedeas bond shall be
equivalent of the amount of damages that you
are required to pay. For example: support,
pahatagon ka ug amount nga 10k a month unya
napulo kabulan gikan sa pag-file sa kaso wa kay
hatag-hatag so nahimo nanag 100k. So mao
nang amount sa imong superdedeas bond, 100k.
For example kanang rentals, usa katuig wa ka
kabayad, 100k. So di ka gusto papahawaon while
the case is pending appeal so you put up
supersedeas bond. Pila man? 100k, representing
atong mga arrears nimu.
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Sec. 4. Judgments not stayed by appeal.
Judgments in actions for injunction,
receivership, accounting and support, and
such other judgments as are now or may
hereafter be declared to be immediately
executory, shall be enforceable after their
rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise
ordered by the trial court. On appeal
therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or
award of support.
The stay of execution shall be upon such
terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse
party.
But under section 4, there are judgements which
are immediately executory such as actions for
injunction, receivership, accounting and
support, and such other judgments as are
now or may hereafter be declared to be
immediately executor. In these cases,
including support, the same cannot be stayed by
an appeal. So the same shall be executed unless
otherwise ordered by the court.
Then on appeal the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or
award of support.
The stay of execution shall be upon such
terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse
party.
So, you have now an idea what is execution
pending appeal or discretionary execution.
Sec. 5. Effect of reversal of executed
judgment.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Where the executed judgment is reversed
totally or partially, or annulled, on appeal
or otherwise, the trial court may, on
motion, issue such orders of restitution or
reparation of damages as equity and justice
may warrant under the circumstances.
Q: Now what about if the case is still pending,
pananglitan karon gipa-support ka kai lagi di man
puede ma-stay ang decision, gipasupport ka so
nihatag ka ug support. Pananglitan on appeal
nakadaog ka unsaon man na ron kai naka daog
ka? (Meaning i-reverse ang order or decision of
the trial court na pasupportahon ka.)
A: Then there should be a restitution or
reparation, under section 5.
Where the executed judgment is reversed
totally or partially, or annulled, on appeal
or otherwise, the trial court may, on
motion, issue such orders of restitution or
reparation of damages as equity and justice
may warrant under the circumstances.
Sec. 6. Execution by motion or by
independent action.
A final and executory judgment or order
may be executed on motion within five (5)
years from the date of its entry. After the
lapse of such time, and before it is barred
by the statute of limitations, a judgment
may be enforced by action. The revived
judgment may also be enforced by motion
within five (5) years from the date of its
entry and thereafter by action before it is
barred by the statute of limitations.
Now, Section 6 tells us the period within which a
judgement or final order can be executed by
filing a motion for execution.
Q: What is the period that the same can be
enforced or can be executed by filing a mere
motion?
A: Within the period of 5 years from the
date of entry.
So that is how important the entry is. After the
lapse of such time (meaning 5 years plus up to
10 years or before the execution of the
judgement prescribed) the same has to be
enforced by action. Meaning you have to file a
case for the revival of the decision after the lapse
of 5-year period.
So within 5 years just file a motion for
execution of judgement but after the lapse of
5-year period (ah grabe sa sa imu katulog ui,
laliman ka 5 years wa ka gi-buhat) you can still
enforce the decision but you have to file an
action in court. Your cause of action would be the
revival of the decision. So mura jud na siya ug
original action although ang imu subject diha ang
revival sa decision na katong nakadaog naka.
And according to Dean Riano, the same should
be file with the RTC because it is considered
as incapable of pecuniary estimation. So,
even the decision is rendered by the MTC, you
have to file the complaint for revival before the
RTC because according to him (Riano) that is
incapable of pecuniary estimation.
Okey, look at this case of Yau vs. Silverio Sr.,
February 4, 2008. In this decision the SC
allowed execution by mere motion even after the
lapse of 5 years on meritorious grounds. Unsa
man ning mga grounds, ah tan-awa ning mga
kaso.
By the way is it within the authority of the SC to
suspend the provisions of certain rules? YES,
that is within the powers of the SC.
So, ang rule is motion for execution shall be filed
within 5 years. Pero ingon ang SC, “ah, bisag
nilapas pa puede ra gihapon ang motion basta
dunay meritorious grounds. Pero kung naa ka sa
diri sa trial court ayaw jud ug exhibition, gawas
lang if dunay decision ang SC ana. Ngano man?
Ah you can be cited for ignorance of the law. That
is a ground for disciplinary action. Pero bisag dia
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paka sa MTC feeling justice naka magreverse-
reverse ka, ah delikado na.
Then there are decisions there in your book
please read those decisions (kanang note no.
4,5,6,7 ni Regalado).
Sec. 7. Execution in case of death of party.
In case of the death of party, execution may
issue or be enforced in the following
manner:
(a) In case of the death of the judgment
obligee, upon the application of his
executor or administrator, or successor in
interest;
(b) In case of the death of the judgment
obligor, against his executor or
administrator or successor in interest, if
the judgment be for the recovery of real or
personal property, or the enforcement of
the lien thereon;
(c) In case of the death of the judgment
obligor, after execution is actually levied
upon any of his property, the same may be
sold for the satisfaction of the judgment
obligation, and the officer making the sale
shall account to the corrsponding executor
or administrator for any surplus in his
hands.
So, in case of death of the party, the party here
could be the plaintiff or defendant. Ang nakadaog
ang plaintiff, patay naman siya kinsa man ang
mu-execute? Then it should be the executor
or administrator or any of successors in
interest. Patay na ang defendant or judgment
obligor, then it should be against his executor or
administrator.
In case of the death of the judgment
obligor, after execution is actually levied
upon any of his property, the same may be
sold for the satisfaction of the judgment
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
obligation, and the officer making the sale
shall account to the corresponding
executor or administrator for any surplus in
his hands. Problema ni basta ang namatay ang
defendant. Ngano man? Kung wala pa na levy...
Unsa man nang levy? Kanang wa pa particular
property na nakuha. Kanang pananglitan
desisyunan ka and then wa ka kabayad kai wa ka
ikabayan na kwarta, ang imong mga properties
maoy birahon. Pero dili na buot pasabot na
dalhon to sa plaintiff sa ilaha katung imu awto.
Ibaligya na siya by auction, pero before the
auction duna usai levy, meaning i-separate sa na
siya human ana mao na nang auction.
So, before the auction, comes the levy. Pero wa
pa gani levy, the money claim must be filed
before the probate court ( mao tong sa iyo
special proceeding dunay gitawag na money
claims). Kai kung dili ka mu-file ug money claims
the same shall be considered waived. Pero kung
duna nay levy on any of his property (meaning
gi-pinpoint na) the same may be sold for the
satisfaction of the judgement.
Sec. 8. Issuance, form and contents of a
writ of execution.
The writ of execution shall: (1) issue in the
name of the Republic of the Philippines
from the court which granted the motion;
(2) state the name of the court, the case
number and title, the dispositive part of the
subject judgment or order; and (3) require
the sheriff or other proper officer to whom
it is directed to enforce the writ according
to its terms, in the manner herein after
provided:
(a) If the execution be against the property
of the judgment obligor, to satisfy the
judgment, with interest, out of the real or
personal property of such judgment obligor;
(b) If it be against real or personal property
in the hands of personal representatives,
heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy
the judgment, with interest, out of such
properties;
(c) If it be for the sale of real or personal
property, to sell such property, describing
it, and apply the proceeds in conformity
with the judgment, the material parts of
which shall be recited in the writ of
execution;
(d) If it be for the delivery of the possession
of real or personal property, to deliver the
possession of the same, describing it, to
the party entitled thereto, and to satisfy
any costs, damages, rents, or profits
covered by the judgment out of the
personal property of the person against
whom it was rendered, and if sufficient
personal property cannot be found, then
out of the real property; and
(e) In all cases, the writ of execution shall
specifically state the amount of the
interest, costs, damages, rents, or profits
due as of the date of the issuance of the
writ, aside from the principal obligation
under the judgment. For this purpose, the
motion for execution shall specify the
amounts of the foregoing reliefs sought by
the movant.
Then section 8, is the form and contents of writ of
execution. Unya ang writ of execution shall state
the dispositive portion. The most important part
of decision is the dispositive portion. Sa
pleadings nga i-file sa mga parties, ang pinaka
importante kai ang body. Pero sa decision na
buhaton sa court ang pinaka-importante is not
the body but the dispositive portion.
The dispositive portion shall be stated in the writ
of execution. The writ of execution must conform
to the dispositive portion; otherwise the writ of
execution shall be considered VOID.
And it shall be signed by the clerk of court.
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So look at letter A: If the execution be against
the property of the judgment obligor, to
satisfy the judgment, with interest, out of
the real or personal property of such
judgment obligor.
Letter B: If it be against real or personal
property in the hands of personal
representatives, heirs, devisees, legatees,
tenants, or trustees of the judgment
obligor, to satisfy the judgment, with
interest, out of such properties.
Letter C:If it be for the sale of real or
personal property, to sell such property,
describing it, and apply the proceeds in
conformity with the judgment, the material
parts of which shall be recited in the writ of
execution.
Letter D: If it be for the delivery of the
possession of real or personal property, to
deliver the possession of the same,
describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the
personal property of the person against
whom it was rendered, and if sufficient
personal property cannot be found, then
out of the real property.
Letter E: In all cases, the writ of execution
shall specifically state the amount of the
interest, costs, damages, rents, or profits
due as of the date of the issuance of the
writ, aside from the principal obligation
under the judgment.
For this purpose, the motion for execution
shall specify the amounts of the foregoing
reliefs sought by the movant.
Sec. 9. Execution of judgments for money,
how enforced.
(a) Immediate payment on demand. - The
officer shall enforce an execution of a
judgment for money by demanding from
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the judgment obligor the immediate
payment of the full amount stated in the
writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified
bank check payable to the judgment
obligee or his authorized representative if
present at the time of payment. The lawful
fees shall be handed under proper receipt
to the executing sheriff who shall turn over
the said amount within the same day to the
clerk of court of the court that issued the
writ.
If the judgment obligee or his authorized
representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possesssion within
the same day to the clerk of court of the
court that issued the writ, or if the same is
not practicable, deposit said amount to a
fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
The clerk of court shall thereafter arrange
for the remittance of the deposit to the
account of the court that issued the writ
whose clerk of court shall then deliver said
payment to the judgment obligee in
satisfactionn of the judgmen. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be
retained by the clerk of court for
disposition as provided by law. In no case
shall the executing sheriff demand that any
payment by check be made payable to him.
Section 9: this is now how are going to execute
money judgement or judgement for money.
Q: By the way kinsa mai mu-execute ana? Ang
judge mismo? Clerk of court?
A: No,the sheriff.
There are courts having no sheriff for example
MTC, MCTC...ang sheriff naa lang na siya sa MTCC
ug MMTC as well as RT, CA and SC.
Q: Asa man manguha ug sheriff katong MTC ug
MCTC?
A: Ari sa RTC. So the MTC and MCTC will direct
the RTC sheriff to execute the decision whenever
a motion for execution is filed. Manghuwan didto.
The officer shall enforce an execution of a
judgment for money by demanding from
the judgment obligor the immediate
payment of the full amount stated in the
writ of execution and all lawful fees.
So, kung dili siya mubayad adtuon siya sa sheriff,
“ma’am bayari na ni”.
Q: Unya kung mubayad, asa man ibayad ang
amount? Adto sheriff?
A: Ayaw! Kai basig mulahos sa bulsa. Ang sheriff
kinahanglan mag-uban daan sa judgement
obligor. Then ang judgement obligor maoy
mudawat.
Q: Kung wa diha ang judgement obligor, kinsa
mai mudawat?
A: Ah kana mapugos na ang sheriff ug dawat ana
but the same should be turn over to the COC and
the COC will turn it over to the creditor. The Clerk
of court will now notify the judgement creditor
that the judgement debtor has already paid the
obligation.
Kabalo mo kaning execution, pag-execute mao
man nang sagad na trabaho sa sheriff, mao ning
isa sa mga hinungdan na ang sheriff ma-
dimissed. Ngano man? Involved man gud ni ug
kwarta, just imagine kung ang kaso nga imu i-
enforce mu-involve ug millions... ang uban mang
gud sheriff medyo mai pagkabaga-baga nasad ba
mangayo jud aron kunuhay iyaha i-execute. So
naa na diha mu-entra ang graft and corruption.
So, mangayo man ka or dili, bisag wa to nimu
pangayu-a pero nidawat ka crime gihapon na
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siya labhi na gud kung nangayo jud ka. Possible
nga muhatag na pero disgusto, so unsa mahitabo
tagaan ka pero inig kahuman ana reklamo. So
unsay rule ana arong dili ka maproblema ayaw
nlang dawat bisag buluntaryo na gi-hatag.
(kahilakon ang voice ni judge while saying this)
(b) Satisfaction by levy. - If the judgment
obligor cannot pay all or part of the
obligation in cash, certified bank check or
other mode of payment acceptable to the
judgment obligee, the officer shall levy
upon the properties of the judgment obligor
of every kind and nature whatsoever which
may be disposed of for value and not
otherwise exempt from execution giving
the latter the option to immediately choose
which property or part thereof may be
levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not
exercise the option, the officer shall first
levy on the personal properties, if any, and
then on the real properties if the personal
properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient
portion of the personal or real property of
the judgment obligor which has been levied
upon.
When there is more property of the
judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he
must sell only so much of the personal or
real property as is sufficient to satisfy the
judgment and lawful fees.
Real property, stocks, shares, debts,
credits, and other personal property, or any
interest in either real or personal property,
may be levied upon in like manner and with
like effect as under a writ of attachment.
Q: What happened when an obligor cannot pay
all or part of the obligation?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: This would be the time that there is levying of
properties. Because di man siya mubayad or wa
man siya ikabayad then the obligation now shall
be paid out of properties, personal or real
properties, of the obligor. So dunay sakyanan
mao to ang i-levy.
Q: What do you mean by levy?
A: Levy is the act whereby a sheriff sets apart or
appropriates for the purpose of satisfying the
command of the writ a part or the whole of the
judgement. Levy is the prerequisite of the auction
sale. Di man ka muderitso ug baligya, imu sa na
siyang kuhaon. Mao nang gi-ingon sa ato silingan
nga “gi-sheriff”, gidad-an ug dekarga gi-sheriff
ang TV, gi-sheriff ang refrigerator....
Kanang gi-sheriff mao pa nang pag-levy, wa pa
na gi-baligya gikuha ra sa kai aron ibaligya. Diba
kadungog man mu ana? Kana gud nang gi-sheriff
gipanguha ang iyang mga properties, ang legal
term an kai levy.
Human ato dalhon to siya sa court, i-auction
dayon to siya. So, levying (katong panguha) mao
to ang pre-requisite for the auction. Di man ka
ka-auction sa balay katong debtor kung wa pa
levy. So, mao to “gi-sheriff”....“Gi-sheriff to oi,
luoya bitaw kai gi-sheriff”. “Kung di ka mubayad,
halaka sheriffon jud ka!”
Q: Then unsa mai i-levy?
A: Properties, real or personal, but the debtor
may have the option to choice which property
thereof may be levied upon, sufficient to satisfy
the judgement. If the judgement obligor did not
exercise such option then officers shall first levy
on the personal properties and then on the real
properties. So tagaan ang debtor ug unsa, kai
dunay mga properties nga para niya dunay
sentimental value. So, for example ingon siya,
“ayaw lang nang ako awto kung puede naa man
koy yuta didto mao nlang to ang inyong ibaligya.
Ayaw lang ang ako awto kai dunay sentimental
value, there were wonderful things and memories
na nahitabo diha sulod sa awto nga dili nako i-
dispose of”.
Nahinumdum ko sa ako estudyante sa una nga
nag-teach pako sa CIT, ang iya ngalan kai
“Carlife”. I was so curios, “dai nganong Carlife
man imu ngalan?” “Kabalo naka sir, sa uyab pa si
mama ug si papa...”
So, if you do not want your car to be levied you
can choice, “tu-a ako yuta didto”. But if you don’t
then the sheriff will execute first personal
properties then if this is not enough then real
properties.
Unya, the sheriff shall sell only a sufficient
portion of the personal or real property of
the judgment obligor which has been levied
upon. Dili hutdon kung gamay lang ang utang
then portion lang. Pero kung ang imong utang
mas daghan pa kaysa sa imong properties, ah
hurot jud nang properties. Except atong mga
exempt for execution.
Then, Real property, stocks, shares, debts,
credits, and other personal property, or any
interest in either real or personal property,
may be levied upon in like manner and with
like effect as under a writ of attachment.
Kanang mga shares of stock unsaon man na pag-
levy? Pahibaluon lang nang ang katong
corporation. The president shall be given notice.
Unya kung real properties, the register of deeds
shall be given notice.
(c) Garnishment of debts and credits. - The
officer may levy on debts due the judgment
obligor and other credits, including bank
deposits, financial interests, royalties,
commissions and other personal property
not capable of manual delivery in the
possession or control of third parties. Levy
shall be made by serving notice upon the
person owing such debts or having in his
possession or control such credits to which
the judgment obligor is entitled. The
garnishment shall cover only such amount
as will satisfy the judgment and all lawful
fees.
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The garnishee shall make a written report
to the court within five (5) days from
service of the notice of garnishment stating
whether or not the judgment obligor has
sufficient funds or credits to satisfy the
amount of the judgment. If not, the report
shall state how much funds or credits the
garnishee holds for the judgment obligor.
The garnished amount in cash, or certified
bank check issued in the name of the
judgment obligee, shall be delivered
directly to the judgment obligee within ten
(10) working days from service of notice on
said garnishing requiring such delivery,
except the lawful fees which shall be paid
directly to the court.
In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have
the right to indicate the garnishee or
garnishees who shall be required to deliver
the amount due; otherwise, the choice shall
be made by the judgment obligee.
The executing sheriff shall observe the
same procedure under paragraph (a) with
respect to delivery of payment to the
judgment obligee.
Then katong mga intangible how is the levy
done? For example mga bank deposits, unsaon
man na? Ang tawag ana garnish. In notice of
garnishment the bank is ordered not to pay the
judgement debtor meaning the bank shall freeze
the account, it will not allow withdrawals.
So, the officer may levy on debts due the
judgment obligor and other credits,
including bank deposits, financial interests,
royalties, commissions and other personal
property not capable of manual delivery in
the possession or control of third parties.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Levy shall be made by serving notice upon
the person owing such debts, kana gud bank
deposits dili man gud na di-ingon na contract of
deposits (kabalo naman ta ana). Ang relationship
between the bank and the depositors is contract
debtor and creditor. So kanang bangko is
considered as debtor, so kung kabalo ka na naa
to siyay bank deposit imu nanag pahibaluon ang
bangko nga ayaw sa nang ibayad. Mao nang
gitawag nga notice of garnishment.
Q: Is notice of garnishment a violation of the
bank secrecy law?
A: According to the SC, NO! Kai you did not
inquire into the deposit igo man lang ka niingon
sa banko, “kung naa siyay bank deposit ayaw sa
na i-allow”.
Q: Is Notice of Garnishment not a violation
of the Bank Secrecy Law?
A: According to the Supreme Court, NO
because you did not inquire on the bank deposit.
Igo ra man ka mo ingon sa bangko nga kung naa
siyang bank deposit…i-allow.
So, The garnishee shall make a written
report to the court within five (5) days from
service of the notice of garnishment stating
whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of
the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the
judgment obligor.
Section 10. Execution of judgments for
specific act. —
(a) Conveyance, delivery of deeds, or
other specific acts; vesting title. — If a
judgment directs a party to execute a
conveyance of land or personal property, or
to deliver deeds or other documents, or to
perform, any other specific act in
connection therewith, and the party fails to
comply within the time specified, the court
may direct the act to be done at the cost of
the disobedient party by some other person
appointed by the court and the act when so
done shall have like effect as if done by the
party. If real or personal property is
situated within the Philippines, the court in
lieu of directing a conveyance thereof may
by an order divest the title of any party and
vest it in others, which shall have the force
and effect of a conveyance executed in due
form of law. (10a)
If a judgment directs a party to execute a
conveyance of land…pananglitan btaw kung
ipadeliver nimo imong yuta. For example nag
puyo ka diha unya gipa eject ka. So you’re
ordered to turn over the possession to the owner.
Unya pananglitan kung magpa gahi2x ka, unsaon
man na? Mao nang sa Sec. 10.
If a judgment directs a party to execute a
conveyance of land or personal property, or to
deliver deeds or other documents, or to perform,
any other specific act, the court may direct the
act to be done at the cost of the disobedient
party by some other person appointed by the
court and the act when so done shall have like
effect as if done by the party.
For example: You were odered by the
court to execute a deed of absolute sale kay
gikihaan ka ug specific performance kay wala ka
mo execute of ug dedd of absolute sale bisan
nakadawat na ka sa bayad. Dili jud ka mo perma.
Then the court may order the Clerk of Court to
sign the deed of sale. Aw dili ka mo perma? Eh di
kaning clerk of court (ang mo perma)
And the effect would be the same – as if
the deed of sale was signed by the defendant.
If real or personal property is situated
within the Philippines, the court in lieu of
directing a conveyance thereof may by an order
divest the title of any party and vest it in others.
So the court may order nga “wala na na…dili na
na iyaha”
(b) Sale of real or personal property. —
If the judgment be for the sale of real or
personal property, to sell such property,
describing it, and apply the proceeds in
conformity with the judgment. (8[c]a)
Then what about sale of real or personal
property? It shall be sold and the proceeds shall
be divided according to the decision.
For example: Partition unya ang dicision
sa court ipabaligya then it shall be sold and the
proceeds will be divided.
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(c) Delivery or restitution of real
property. — The officer shall demand of the
person against whom the judgment for the
delivery or restitution of real property is
rendered and all persons claiming rights
under him to peaceably vacate the property
within three (3) working days, and restore
possession thereof to the judgment
obligee, otherwise, the officer shall oust all
such persons therefrom with the
assistance, if necessary, of appropriate
peace officers, and employing such means
as may be reasonably necessary to retake
possession, and place the judgment obligee
in possession of such property. Any costs,
damages, rents or profits awarded by the
judgment shall be satisfied in the same
manner as a judgment for money. (13a)
Look at letter c. kana gud papahawa-on
ka. Pananglitan nakadaug ka…ikaw ron ang
plaintiff. Nakadaug ka. Nahimo nang final and
executor and decision unsay buhaton nimo?
For example: Duna kay balay unya
imong gipa-abangan. Gi-filan nimo ug ejectment.
Nidaug ka. Final and executory. Unsay imong
buhaton nga wala man gihapon nipahawa bisan
ni 15 days na. didto sa decision gibutang didto
“WHEREFORE judgment is hereby rendered
directing the defendant to vacate the described
property and turned over the possession thereof
to the plaintiff peacefully.” Wala man jud siya mo
vacate…wala niya gi turn over. Unsay buhaton
ron nimo? File a Motion for Execution.
The court now issues a Writ of Execution
it is a matter of right. The decision is final and
executory. The court granted the motion and the
clerk of court now issues a writ of execution.
Under letter c: Unsay buhaton now sa
sheriff? The sheriff not will go to the
place/premises and order the defendant to
vacate the property within three (3) working
days, and restore possession thereof to the
judgment obligee otherwise, the officer shall oust
all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
judgment obligee in possession of such property.
So, papahawaon ka sa maong balay
Duna na say laing problema. Walay
problema kung balay kay pwede man to pugson
sa sheriff. Panglabnihon to…”gawas-gawas” 
Ang problema kung dili sa plaintiff anf balay. Yuta
ra iyaha. Sa ato pa kinahanglan nga i-demolish
ang balay.
Q: Pwede ba nga inig issue sa Writ of
Execution…di man jud siya mo pahawa…aron
mapugos ug pahawa demolishon ang balay.
Pwede ba?
A: The answer is NO. Issuance of Writ of
Execution is not an enough authority for the
sheriff to demolish the structure.
Unsay may buhaton? The plaintiff should
file another Motion for Demolition under par. d.
nay paragraph d diha sa inyong libre? Kang
Regalado raba walay par. d. actually nay par d
diha. Naa sa codal.
(d) Removal of improvements on
property subject of execution. — When the
property subject of the execution contains
improvements constructed or planted by
the judgment obligor or his agent, the
officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment obligee after the
hearing and after the former has failed to
remove the same within a reasonable time
fixed by the court. (14a)
Under par. d, in order for the sheriff to
make the demolition legal, there has to be a
special order from the court directing him or
ordering him to demolish the structure. But of
course before issuing the order, there has to be a
motion. Unsa may motion? Motion for Demolition.
And upon receipt of the order for
demolition, the court will to give the defendant
reasonable time to demolish the structure.
So it says in par d, when the property
subject of the execution contains improvements
constructed or planted by the judgment obligor
or his agent, the officer shall not destroy,
demolish or remove said improvements except
upon special order of the court, issued upon
motion (There has to be a motion. The court
cannot moto proprio) of the judgment obligee
after the hearing and after the former has failed
to remove the same within a reasonable time
fixed by the court.
Aw, di-a na sad ang lalis diri sa
reasonable time.
For example: Gi-adto didto…kay lagi
mga informal settlers. Pildi na sila. Karon gi-issue
han ug Writ of Execution. Dili pa man jud sila
mamahawa kay nangayo sila ug relocation site.
Unya karon wala jud mamahawa. Unsa may
buhaton sa sheriff ana? Gub-on niya ang mga
balay? DILI.
Dili na pwede nga iyang gub-on pina-agi
lang sa Writ of Execution. He has to wait for a
order for demolition. So mo balik siya sa korte ug
buhatan ug report nga wala ma-execute. Then
the plaintiff now will file a Motion for Demolition.
Now the court now will set the hearing
and will have to give reasonable time to the
defendants to remove by themselves.
Unya ang court dili pod mo gamit anang
word nga reasonable time. Meaning, the court
has to specify the time.
So unsa may reasonable time? – ah it
could be 1 week, it could be 2 weeks, it could be
1 month…depende.
Usahay mo ingon nga…unsa man tar on?
November…duna nay motion. Ingon dayon tong
mga defendants pina-agi sa counsel nga “judge,
pwede pa nga diri sa mi mag celebrate sa pasko
ug new year kay wala man tawon mi balay?” aw
kanus-a man di-i? ah karon nalang mga 1st week
sa January. Cge, 1st week sa January. Oi pag abot
sa January 7 wala na man sad…wala pa man sad
nangguba. Nangayo na sad sila kay Pista Senor.
 nangayo na sad sila ug extension na sad.
Paghuman si Pista Senor nangayo na sad sila kay
mo graduate na sad ilang mga anak until last
week sa March.  Pwede ra gihapon na ihatag sa
court kay discretion man na sa court.
Pero matawag nab a na nga reasonable
time kung mo ingon ang court inig January 7 nga
i-demolish na gyud? YES because they have
been given reasonable time to remove by
themselves the structure. Pero usahay ang korte
malooy man na. usahay  usahay pod ang korte
“may pusong bato”    Because the court has
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to take into consideration the right of the plaintiff
or the right of the owner of the property.
So take note of these ha? Take note of
these…mga importante kaayo na siya.
(e) Delivery of personal property. — In
judgment for the delivery of personal
property, the officer shall take possession
of the same and forthwith deliver it to the
party entitled thereto and satisfy any
judgment for money as therein provided.
If it is a personal property then the sheriff
will have to take that and turn over that to the
plaintiff if capable of manual delivery.
Section 11. Execution of special
judgments. — When a judgment requires
the performance of any act other than
those mentioned in the two preceding
sections, a certified copy of the judgment
shall be attached to the writ of execution
and shall be served by the officer upon the
party against whom the same is rendered,
or upon any other person required thereby,
or by law, to obey the same, and such party
or person may be punished for contempt if
he disobeys such judgment.
Then special judgments...kanang
mandamus, prohibition, cerciorari. Unsaon man
na pag serve? Mao nay gitawag nga special
judgements. Kadtong atong gimention kadtong
mga money judgment, kadtong mga properties
mao nag gitawag ug mga ordinary judgments.
Kani maoy special judgment.
How is it Executed?
Now, when a judgment requires the
performance of any act other than those
mentioned in the two preceding sections, a
certified copy of the judgment shall be attached
to the writ of execution and shall be served by
the officer upon the party against whom the
same is rendered.
So for example: cerciorari or
mandamus. Gi offeran ka nga pabuhaton ka then
you should do that otherwise you can be
punished for contempt. Importante kaayo ning
special judgment.
Kadtong gi-orderan ang defendant nga
papahawaon naa man to sa order diba? “the
defendant is hereby ordered to vacate the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
property and to turn over the possession thereof (a) The judgment obligor's family home
to the plaintiff peacefully.” Pananglitan dili sila as provided by law, or the homestead in
mo vacate kan he be cited for contempt? Now which he resides, and land necessarily used
the answer is NO because in the first place the in connection therewith;
writ of execution is directed not to them but to (b) Ordinary tools and implements
the sheriff. personally used by him in his trade,
Matud pa sa SC, kanang mga specific employment, or livelihood;
acts under Sec. 10 ug kadtong sa Sec. 9, the (c) Three horses, or three cows, or
defendant there cannot be subjected for three carabaos, or other beasts of burden,
contempt because if they do not comply with the such as the judgment obligor may select
order of the court the court can order other necessarily used by him in his ordinary
persons for the performance of such acts occupation;
mandated by the court. (d) His necessary clothing and articles
For example: You were ordered to for ordinary personal use, excluding
executed a deed of sale unya dila ka mo execute. jewelry;
Kinsa man toy pwedeng orderen sa court? Ang (e) Household furniture and utensils
Clerk of Court. So, in other words the court direct necessary for housekeeping, and used for
other person to perform such act. And that is the that purpose by the judgment obligor and
reason why you cannot cite that person for his family, such as the judgment obligor
contempt because the court has other remedy. may select, of a value not exceeding one
Whereas compared it to acts mentioned hundred thousand pesos;
in Sec. 11 no other person can comply with the (f) Provisions for individual or family
order. That is why in case of none compliance the use sufficient for four months;
disobedient party can be cited for contempt. (g) The professional libraries and
Unsa man ning mga Special Judgements? equipment of judges, lawyers, physicians,
– Mandamus, Petition and Certiorari. You call pharmacists, dentists, engineers,
these special judgments. surveyors, clergymen, teachers, and other
Section 12. Effect of levy on execution as professionals, not exceeding three hundred
to third person. — The levy on execution thousand pesos in value;
shall create a lien in favor of the judgment (h) One fishing boat and accessories not
obligee over the right, title and interest of exceeding the total value of one hundred
the judgment obligor in such property at thousand pesos owned by a fisherman and
the time of the levy, subject to liens and by the lawful use of which he earns his
encumbrances then existing. livelihood;
Pananglitan kining yutaa gi-levy ni siya (i) So much of the salaries, wages, or
kay lagi wala kabayad. Gi pin point na ni nga earnings of the judgment obligor for his
maoy ibaligya. Unsaon to na pag levy? By personal services within the four months
informing the Registry of Deeds nga mao ni siya. preceding the levy as are necessary for the
However if that parcel of land na prinda sauna support of his family;
prior to the finality of the execution…prior to the (j) Lettered gravestones;
levy then that lien/encumbrance should be (k) Monies, benefits, privileges, or
respected. annuities accruing or in any manner
Section 13. Property exempt from growing out of any life insurance;
execution. — Except as otherwise expressly (l) The right to receive legal support, or
provided by law, the following property, money or property obtained as such
and no other, shall be exempt from support, or any pension or gratuity from
execution: the Government;
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(m) Properties specially exempted by
law.
But no article or species of property
mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a judgment
of foreclosure of a mortgage thereon.
Sec. 13 tells us the properties that are
exempt from execution. Dili ni nimo pwede nga
mabaligya. Unsa man?
 Family Home - But of course look at the
last paragraph. Although Home or House
is exempt from execution, but if the
purpose is to recover the price thereof
through foreclosure of mortgage then
that would be valid.
So kung inutang na nimo imong balay sa
Pag-ibig or sa Bank aw pede na siya ma forclose.
Exeption na. unya family home ha walay limit
ang price
Sauna sa Family Code…unsa to sauna?
Murag 500,000? Aw pila? 300,000? 200,000? But
there is a decision of the SC that the price or the
worth of the house is disregarded. Basta kay
balay na nimo.
 Tools – use for livelihood.
Pananglitan you are engaged in Security
Agency unya nay mga firearms diba assets man
na? pwede ban a ibaligya? Ingon ang defendant
No because these are tools used in the livelihood.
Are they exempt? Look at this case of Pentagon
security Agency vs. Jimenez 192 SCRA 492.
 Clothing and articles for ordinary
personal use – so ayaw kabalaka anang
imong mag branded nga sinina dili na
siya e-execute. But excluding jewelry.
 Professional Libraries
 Fishing boat
 Salaries, wages – within four (4)
months. Ang imong sweldo pede na siya
ma levy pero not entirely kay wala na
pod kay…in one decision the Court orders
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
that 25 % of the salary. Depende na kung
gamay ra imong sweldo.
 Lettered gravestones – lapida dili
pwede marimati; etc.
Claims for Exemptions:
If you believe that that piece property is
exempt then you should object before the
auction sale. So kung kuhaon na gani na sa
Sheriff, kinahanglang mo object na ka nga kana
wala nay apil akong mga libro oi.
Section 14. Return of writ of execution. —
The writ of execution shall be returnable to
the court issuing it immediately after the
judgment has been satisfied in part or in
full. If the judgment cannot be satisfied in
full within thirty (30) days after his receipt
of the writ, the officer shall report to the
court and state the reason therefor. Such
writ shall continue in effect during the
period within which the judgment may be
enforced by motion. The officer shall make
a report to the court every thirty (30) days
on the proceedings taken thereon until the
judgment is satisfied in full, or its
effectivity expires. The returns or periodic
reports shall set forth the whole of the
proceedings taken, and shall be filed with
the court and copies thereof promptly
furnished the parties.
Then after the Sheriff execute the writ of
execution, the Sheriff will have to make a report
whether or not the same has been satisfied. If
not satisfied, the writ shall continue to be in
effect during the period of 5 years because
according to Sec. 14, the Writ of Execution shall
be effective during the period within which the
judgment will be enforced by motion.
Unya kanus-a man siya ma enforce by
motion on judgment? – within 5 years.
But the officers shall make a report within
30 days.
Section 15. Notice of sale of property on
execution. — Before the sale of property on
execution, notice thereof must be given as
follows:
(a) In case of perishable property, by
posting written notice of the time and place
of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal or city hall, post office and public
market in the municipality or city where the
sale is to take place, for such time as may
be reasonable, considering the character
and condition of the property;
(b) In case of other personal property,
by posting a similar notice in the three (3)
public places above-mentioned for not less
than five (5) days;
(c) In case of real property, by posting
for twenty (20) days in the three (3) public
places abovementioned a similar notice
particularly describing the property and
stating where the property is to be sold,
and if the assessed value of the property
exceeds fifty thousand (P50,000.00) pesos,
by publishing a copy of the notice once a
week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in
English, Filipino, or any major regional
language published, edited and circulated
or, in the absence thereof, having general
circulation in the province or city;
(d) In all cases, written notice of the
sale shall be given to the judgment obligor,
at least three (3) days before the sale,
except as provided in paragraph (a) hereof
where notice shall be given the same
manner as personal service of pleadings
and other papers as provided by section 6
of Rule 13.
The notice shall specify the place, date and
exact time of the sale which should not be
earlier than nine o'clock in the morning and
not later than two o'clock in the afternoon.
The place of the sale may be agreed upon
by the parties. In the absence of such
agreement, the sale of the property or
personal property not capable of manual
delivery shall be held in the office of the
clerk of court of the Regional Trial Court or
the Municipal Trial Court which issued the
writ of or which was designated by the
appellate court. In the case of personal
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property capable of manual delivery, the
sale shall be held in the place where the
property is located.
Sec. 15 is important because this has
something to do with the auction sale.
To make the auction sale valid, one of the
most important requirements is NOTICE to the
obligor.
Before the sale of property on execution,
notice thereof must be given as follows:
In case of perishable property, by
posting written notice of the time and place of
the sale in three (3) public places, preferably in
conspicuous areas of the municipal or city hall,
post office and public market in the municipality
or city where the sale is to take place, for such
time as may be reasonable, considering the
character and condition of the property;
In case of other personal property, by
posting a similar notice in the three (3) public
places above-mentioned for not less than five (5)
days.
Market, City Hall, unsa pa tong uban nga
mga public place. Usahay sa Church. Mananghid
ta sa pari  because the Church is a public place.
In case of real property depende. If the
value of the property is below 50,000 mga
(posting in) cuspicuous places lang. Pero if above
50,000 there has to be a notice to be publish in
the newspaper. Then you might ask why is it that
a notice is a must? Kay public auction man gud
ni. So that the public can participate. Unsaon
pagkahibalo sa public kung dili sila pahibaw-on.
And aside from posting of the notices, there has
to be a notice to the judgment obligor. Look at
letter d.
In the notice, the properties to be sold
have to be specified. Then the place, date and
the exact time of the sale (have to be specified).
In the absence of any agreement as to where the
place of the sale would be held, it shall be in the
office of the Clerk of Court of the RTC or the MTC.
Section 16. Proceedings where property
claimed by third person. — If the property
levied on is claimed by any person other
than the judgment obligor or his agent, and
such person makes an affidavit of his title
thereto or right to the possession thereof,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
stating the grounds of such right or title,
and serves the same upon the officer
making the levy and copy thereof, stating
the grounds of such right or tittle, and a
serves the same upon the officer making
the levy and a copy thereof upon the
judgment obligee, the officer shall not be
bound to keep the property, unless such
judgment obligee, on demand of the officer,
files a bond approved by the court to
indemnity the third-party claimant in a sum
not less than the value of the property
levied on. In case of disagreement as to
such value, the same shall be determined
by the court issuing the writ of execution.
No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action therefor
is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The officer shall not be liable for damages
for the taking or keeping of the property, to
any third-party claimant if such bond is
filed. Nothing herein contained shall
prevent such claimant or any third person
from vindicating his claim to the property in
a separate action, or prevent the judgment
obligee from claiming damages in the same
or a separate action against a third-party
claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in
favor of the Republic of the Philippines, or
any officer duly representing it, the filing of
such bond shall not be required, and in
case the sheriff or levying officer is sued for
damages as a result of the levy, he shall be
represented by the Solicitor General and if
held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may
be appropriated for the purpose.
Sec. 16 is very important! Take note of
this. This provision tells us in a situation where
the property/properties levied upon is claimed by
a third party. Meaning a party or a person who is
a stranger to the judgement. Wala siya na apil sa
kiha pero ang iyang property gi apil ug auction.
So you notice Third Party Claim (this is very
important). So these are the remedies – Sec. 16
tells us the remedy of a party/person stranger to
the suit but the properties he claimed to be
owned by him is levied upon by the sheriff.
So unsay iyang buhaton? Under Sec.16,
in order that the sheriff will not include his
property anymore in the levy and eventually in
the auction sale he has to execute an affidavit
stating his claim of ownership. Mao ni gitawag ug
TERCERIA (not sure if correct spelling). And the
copy of the affidavit shall be serve upon the
officer making the levy and as well as to the
judgment creditor/prevailing party.
After the service of the affidavit the
sheriff is not anymore obliged to levy that
property except when the judgment creditor will
put up a bond. Now the judgment creditor is not
compelled to put up a bond.
Kung dili xa mo put uo ug bond then that
is within his discretion. But there is an effect.
Although he cannot be compelled to put up a
bond, the sheriff also is not obliged to keep the
property. Dili ka mo put up ug bond? Then the
sheriff will not also oblige to keep the property.
Sa ato pa, ang sheriff adunay discretion to keep
or not to keep the property. Pero adunay risk
kung iyang e-keep because in case of damage,
then he will personally answer to the damage kay
mao man toy gamit sa bond. Pero kung nay bond
then he can keep the property.
Q: How much is the amount of the bond?
A: The amount of the bond shall be
equivalent to the value of the property. Not less
than the value of the property levied upon.
For example: Ang car was levied upon
and the value of the car let us say 400,000. Then
the prevailing party or the judgment creditor has
to put up a bond equivalent to that amount.
Q: Nganu mang pa put up-on man siya ug
bond?
A: kay kung mahitabo gani nga iyaha gyud
to sa kadtong third claimant or third person then
kadtong amount sa bond mao to siyay birahon.
Q: Unsa may kalainan sa Third Party Claim
ug sa third Party Complaint? Nahinumdum pa
mo?
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A: Third Party Claim - refers to a mere
affidavit executed by a person whose property is
levied upon by the sheriff. Third person who is
not included or a party to a decision.
Third Party Complaint – refers to a
pleading file by a defendant against a third party
for contribution, subrogation, etc.
Unsa pa may lain remedy? Imagina kuno
bi nga aduna kay auto/awto didto unya naa nay
sheriff didto kay ni ingon nga kanang awtoha
iyaha na kadtong previous nga tag-iya nga imong
gipalitan. Unsay imong buhaton arong kana siya
dili madayon ug ka auction or kalada sa sheriff?
Kung nadala na sa sheriff, e release sa sheriff.
Unsay imong buhaton? Sayon ra kaayo. Execute
ra ka ug affidavit stating your ownership over the
car.
Unya kung ikaw ang kihante unya nagtuo
jud ka nga iyaha gyud na sa debtor. Unya gi
ingon2x ran a nga/ gipaangkon ran a ug lain para
dili ma apil sa imbargo. Unsa man sad imong
buhaton? Put up a bond. But of course nay risk.
Kung tinud anay jud nga siyang tag-iya then
kadtong imong bond mao toy mo answer.
What other remedy do you have? Aside
from executing an affidavit that is called Tirseria
(see correct spelling) unsa pa may lain?
Now the third party claimant (take note
of the term ha) can also file a separate action in
another court. Pwede ka mo file ug imohang
action for the vindication of your right.
For example: Gikuha na sa sheriff.
Gikuha na tua na sa court. You can file a case for
replevin unya you pray for temporary relief. Of
recovery of ownership and possession over your
car. You ask for temporary order. You know,
kanang replevin is a permanent action at the
same time it could also be a provisional remedy.
Q: Is your act of filing another action in
order to recover this property that was seized by
the sheriff…is it not considered as an
interference of the order of the court? Timan-e
nga kaning awtoha wala bya ni personal nga
gikuha sa sheriff. Gikuha ni sa sheriff kay duna
siyay authority. Unsa may authority sa sheriff?
Kadtong weit of execution diba? Is it now
considered as an interference? Diba duna tay
gitawag nga Doctrine of Interference? Is your
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
act of filing another separate case not a violation
of the doctrine?
A: according to the SC, the answer is NO
because in the first place, the rules of court allow
it. Another in the case of Abierra vs. CA 45
SCRA 314, a third person may vindicate such
claim by a separate action. A judgment in his
favor declaring him to be the owner of the
property would NOT constitute interference the
property being that of a stranger is NOT subject
to levy. Thus, an interlocutory order such as
injunction upon a claim and prima facie suing
ownership by the claimant cannot be considered
as such as interference. Another reason by the
court is the Court did not direct the sheriff to levy
on a particular property in dispute. The order was
for him to levy upon properties of the judgment
debtor without specifying them.
Mao nay justification sa SC. Ingong ang
SC, aw dili na siya interference oi. Kay kung
kadtong korteha diin gifile tong maong kaso sa
third party claimant mo ingon gani nga iyaha jud
na sa claimant sa ato pa dili na sa debtor. So kay
dili man sa debtor then walay interference kay
only the properties of the debtor ka be levied
upon. Ikaduha, ingon ang SC nga ang kaning
korteha nga wherein kadtong decision gi render,
wala mag specify kung unsa nga mga properties
ang e-levy. Igo ra man ni ingon nga mga
properties sa debtor. Wala mo specify so no
interference.
REMEDIES OF THIRD PARTY CLAIMANT:
Ikapila na man to nga remedies sa third
party claimant?
1. Affidavit – TERCERIA; if not…
2. File a separate action to vindicate his
claim; or
3. File a Motion or can invoke the so called
Supervisory Power of the Court which
authorized the execution and ask the
court to determine whether the sheriff
acted correctly.
In other words, he can file a motion
before the court who rendered the decision to
determine whether the sheriff acted correctly in
levying his property. Mao nay gitawag nga
invoking the Supervisory Power of the Court.
Kay kana gung sheriff, under man na sa
Court. So magpalaban ka didto sa Judge. “Judge
oh patakalang jud ni siya ug kuha Judge.”  Then
the court now will conduct a hearing whether the
sheriff acted correctly in levying the property.
Invoking the supervisory power of the court. So
those are the 3 remedies that the third party
claimant may avail. And these remedies are
cumulative meaning, one remedy does not
exclude the other. That is the ruling of the SC in
the case of Evangelista vs. Pinserga 242
SCRA 702 (check the correct name of the case).
And reiterated by the SC in the case of
Ching vs. CA. 356 ….I forgot the…volume ra.
Then another decision regarding third party
claimant is resent case Imani vs. Metropolitan
Bank and Trust Company 635 SCRA 357
Nov. 17, 2010.
REMEDY OF JUDGMENT CREDITOR:
Unya ang kadtong obligor unsa may
remedy sa creditor? For example: The obligor
believes that the claim of the third party claimant
is spurious/frivolous what is the remedy? Look at
the 2nd paragraph. The obligor can file a case for
damages against the third party claimant.
Q: When is he going to file the claim?
A: He can file the claim by mere Motion
before the Trial Court that rendered the decision
or in a separate action.
Ok, mo balik ta sa atong mga na discuss-
an. For example the third party claimant will file
an action for intervention. Nahinumdom pa mo sa
intervention? When a person who is not a party
to a case but his interest of the property is
affected he can intervene in the action by filing a
Motion to Intervene. Is it not?
Q: Can he not file a Motion for Intervention?
A: NO. Motion for Intervention is not
anymore available because the action is already
terminated. Motion for intervention can be file
only before the termination of the proceedings.
Q: Can he not file Appeal? Can he file a
motion for Certiorari?
A: No because he is not a party to the case.
He cannot file appeal because in the first place
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the case is already terminated and the decision
has already become final and another reason is
that he is not a party to the case.
So you now have the idea of what is a
third party claimant? Tan-awa unsay remedy
especially sa third party claimant ug unsay
remedy sa judgment creditor or obligee.
Section 17. Penalty for selling without
notice, or removing or defacing notice. —
An officer selling without the notice
prescribed by section 15 of this Rule shall
be liable to pay punitive damages in the
amount of five thousand (P5,000.00) pesos
to any person injured thereby, in addition
to his actual damages, both to be recovered
by motion in the same action; and a person
willfully removing or defacing the notice
posted, if done before the sale, or before
the satisfaction of the judgment if it be
satisfied before the sale, shall be liable to
pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in
addition to his actual damages, to be
recovered by motion in the same action.
The sale is void.
Section 18. No sale if judgment and costs
paid. — At any time before the sale of
property on execution, the judgment
obligor may prevent the sale by paying the
amount required by the execution and the
costs that have been incurred therein.
Q: Can the debtor stop the auction sale?
A: Yes by paying the amount of the
judgment.
Section 19. How property sold on
execution; who may direct manner and
order of sale. — All sales of property under
execution must be made at public auction,
to the highest bidder, to start at the exact
time fixed in the notice. After sufficient
property has been sold to satisfy the
execution, no more shall be sold and any
excess property or proceeds of the sale
shall be promptly delivered to the judgment
obligor or his authorized representative,
unless otherwise directed by the judgment
or order of the court. When the sale is of
real property, consisting of several known
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
lots, they must be sold separately; or, when
a portion of such real property is claimed
by a third person, he may require it to be
sold separately. When the sale is of
personal property capable of manual
delivery, it must be sold within view of
those attending the same and in such
parcels as are likely to bring the highest
price. The judgment obligor, if present at
the sale, may direct the order in which
property, real or personal shall be sold,
when such property consists of several
known lots or parcels which can be sold to
advantage separately. Neither the officer
conducting the execution sale, nor his
deputies, can become a purchaser, nor be
interested directly or indirectly in any
purchase at such sale.
How should a property be sold to the
execution and who will direct the sale?
Now look Sec. 19. It should be under the
direction of the sheriff.
After sufficient property has been sold to
satisfy the execution, no more shall be sold and
any excess property or proceeds of the sale shall
be promptly delivered to the judgment obligor or
his authorized representative, unless otherwise
directed by the judgment or order of the court.
Neither the officer conducting the
execution sale, nor his deputies, can become a
purchaser. The sheriff cannot be a buyer.
Nahinumdom mo sa inyohang subject nga sale
ana? He cannot be a purchaser nor be interested
directly or indirectly in any purchase at such sale.
Q: What about the creditor? Can he be a
buyer?
A: Yes. In fact, mostly ang creditor mao ra
sad ang bidder.
Section 20. Refusal of purchaser to pay.
— If a purchaser refuses to pay the amount
bid by him for property struck off to him at
a sale under execution, the officer may
again sell the property to the highest
bidder and shall not be responsible for any
loss occasioned thereby; but the court may
order the refusing purchaser to pay into the
court the amount of such loss, with costs,
and may punish him for contempt if he
disobeys the order. The amount of such
payment shall be for the benefit of the
person entitled to the proceeds of the
execution, unless the execution has been
fully satisfied, in which event such
proceeds shall be for the benefit of the
judgment obligor. The officer may
thereafter reject any subsequent bid of
such purchaser who refuses to pay.
Pananglitan kadto kunohayng purchaser
dili mo bayad. E-bid man na. Highest bidder.
“akoy palit ani.” Pila may palit nimo? “aw paliton
ko ni ug 400,000.” Ingon nga “sige ikaw ang
highest bidder.”
Sec. 20 refusal of purchaser to pay. The
officer may again sell the property to the highest
bidder but the court may order the refusing
purchaser to pay into the court the amount of
such loss, with costs, and may punish him for
contempt if he disobeys the order.
Section 21. Judgment obligee as
purchaser. — When the purchaser is the
judgment obligee, and no third-party claim
has been filed, he need not pay the amount
of the bid if it does not exceed the amount
of his judgment. If it does, he shall pay only
the excess.
As what we have said, the oblige can be
the purchaser. And in fact, sometimes siya ra pod
maoy the only bidder.
When the purchaser is the judgment
obligee, and no third-party claim has been filed,
he need not pay the amount of the bid if it does
not exceed the amount of his judgment. If it
does, he shall pay only the excess.
So pwede nga compensation. So kanang
awtoha (car) pila iyang bid…400,000 unya
400,000 man sad ang utang then there could be
compensation or set off.
Section 22. Adjournment of sale. — By
written consent of the judgment obligor
and obligee, or their duly authorized
representatives, the officer may adjourn the
sale to any date and time agreed upon by
them. Without such agreement, he may
adjourn the sale from day to day if it
becomes necessary to do so for lack of time
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to complete the sale on the day fixed in the
notice or the day to which it was adjourned.
Then the sale would be adjourned. By
written consent of the judgment obligor and
oblige, the officer may adjourn the sale to any
date and time agreed upon by them. So pwede e-
reset kung wala gani mo palit or wala ma halin.
Then unsaon man na kung adunay
mahalin or adunay mo palit? How is the property
sold delivered?
Section 23. Conveyance to purchaser of
personal property capable of manual
delivery. — When the purchaser of any
personal property, capable of manual
delivery, pays the purchase price, the
officer making the sale must deliver the
property to the purchaser and, if desired,
execute and deliver to him a certificate of
sale. The sale conveys to the purchaser all
the rights which the judgment obligor had
in such property as of the date of the levy
on execution or preliminary attachment.
If capable of manual delivery (meaning
personal property), then the same shall be
delivered to the purchaser and the sheriff shall
execute the Certificate of Sale.
Section 24. Conveyance to purchaser of
personal property not capable of manual
delivery. — When the purchaser of any
personal property, not capable of manual
delivery, pays the purchase price, the
officer making the sale must execute and
deliver to the purchaser a certificate of
sale. Such certificate conveys to the
purchaser all the rights which the judgment
obligor had in such property as of the date
of the levy on execution or preliminary
attachment.
What about personal property NOT
capable of manual delivery? Kanang car. Dili man
na nimo pwede e hand carry. The same shall be
delivered by the sheriff through or by execution
of Certificate of Sale.
Section 25. Conveyance of real property;
certificate thereof given to purchaser and
filed with registry of deeds. — Upon a sale
of real property, the officer must give to the
purchaser a certificate of sale containing:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(a) A particular description of the real
property sold;
(b) The price paid for each distinct lot or
parcel;
(c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year from the
date of the registration of the certificate of
sale.
Such certificate must be registered in the
registry of deeds of the place where the
property is situated.
What about real property? Conveyance of
real property, the officer must give to the
purchaser a certificate of sale.
Kaning real property mao ni usahay kuti.
Two stage ni siya. Because as regards real
property, the debtor has a Right of
Redemption within 1 year. Kung personal
property walay right of redemption. But as
regards real property, the obligor has a
redemption period of 1 year.
Aside from that…aside from the obligor,
the junior encumbrancers – meaning those
persons who are also interested in the property.
Kadtong uban nga gipang utangan who have
interest over the property may exercise also
the right of redemption within the period of
60 days.
Q: So unsa may buhaton sa sheriff? Unsa
may proof nga ang purchaser maoy nakapalit
gyud?
A: The sheriff will issue a Certificate of Sale.
But the Certificate of Sale is just a proof of the
sale but it will not transfer title yet to the buyer
because the sheriff will have to wait the obligor
and the other redemptioners to redeem the
property within the period of 1 year or 60 days.
DECEMBER 3, 2012
RULE 39 EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Okay, let’s continue our discussion on Execution.
What do you mean by cognovit
judgment? That is a judgment upon the
promissory note, so the promissory note the
debtor waives his right to have a trial, naa ni sa
inyo book sa kinds of judgment. Judgment note
(?) or cognovit judgment occurs when the debtor
waives his right to have a trial so that when he
incurred default, judgment can be readily
rendered upon him. And according to the SC that
is void because he is waiving his day in court.
One of reason why naa mcq para wla na
shocking question, maong giwala ang essay, krn
gibalik mn ang essay you can expect nga kating
mga practice sa una sa mga examiner nga mga
shocking question mamalik na sd nah. Kanang
cognovit isa na cya sa mga shocking questions
kaniaadto. Pareho atong 1989, what is writ of
amparo. Krn makatubag nata unsa nang amparo.
Section 26. Certificate of sale where
property claimed by third person. - When a
property sold by virtue of a writ of
execution has been claimed by a third
person, the certificate of sale to be issued
by the sheriff pursuant to sections 23, 24
and 25 of this Rule shall make express
mention of the existence of such third-party
claim.
Now, certificate of sale this is the
document to be issued by the sheriff as proof of
sale over the property sold.
Section 27. Who may redeem real property
so sold. –
As far as real property is concerned, the
judgment debtor meaning the defendant has the
right of redemption. He can redeem the property
within 1 year from the registration of the
certificate of sale. Aside from the judgment
debtor, the junior encumbrancers, katong mga
lain nga creditors nga iyang utangan other than
the judgment creditor can also has a right of
redemption. But their right of redemption has to
be exercise within 60 days.
Real property sold as provided in the last
preceding section, or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following
persons:
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(a) The judgment obligor, or his
successor in interest in the whole
or any part of the property;
What do you mean by his
successors in interest? Now
because the judgment obligor
can still sale the property,
whoever the transferee will take
into the shoes of the judgment
obligor.
(b) A creditor having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold. Such
redeeming creditor is termed a property w/in 60 days from the last
redemptioner.
These are the creditors’ nga dunay right
over the property after the judgment or after the
lien.
Now, the redemptioners other that the
judgment obligor, the redemptioners cannot
redeem the property when the judgment obligor
exercise his right to redeem.
Section 28. Time and manner of, and
amounts payable on, successive
redemptions; notice to be given and filed. -
The judgment obligor, or redemptioner, may
redeem the property from the purchaser, at
any time within one (1) year from the date
of the registration of the certificate of sale,
How should the redemption be done? by paying
the purchaser the amount of his purchase,
with one per centum per month interest
thereon in addition, up to the time of
redemption, together with the amount of
any assessments or taxes which the
purchaser may have paid thereon after
purchase, and interest on such last named
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
amount at the same rate; and if the
purchaser be also a creditor having a prior
lien to that of the redemptioner, other than
the judgment under which such purchase
was made, the amount of such other lien,
with interest.
- Meaning to say if the judgment
obligor wants to exercise his right of
redemption all he has to do is to pay
the purchaser. So knsa mn tong
nkapalit iyang uli.an but ofcourse
with interest.
Property so redeemed may again be
redeemed within sixty (60) days
- Now if the judgment debtor will not
exercise his right of redemption. Any
of the redemptioners can redeem the
redemption.
after the last redemption upon payment of
the sum paid on the last redemption, with
two per centum thereon in addition, and
the amount of any assessments or taxes
which the last redemptioner may have paid
thereon after redemption by him, with
interest on such last-named amount, and in
addition, the amount of any liens held by
said last redemptioner prior to his own,
with interest. The property may be again,
and as often as a redemptioner is so
disposed, redeemed from any previous
redemptioner within sixty (60) days after
the last redemption, on paying the sum
paid on the last previous redemption, with
two per centum thereon in addition, and
the amounts of any assessments or taxes
which the last previous redemptioner paid
after the redemption thereon, with interest
thereon, and the amount of any liens held
by the last redemptioner prior to his own,
with interest.
Ang debtor naa syay 1 year from the
registration of the certificate of sale from the civil
registry. If the debtor will redeem his property by
paying the purchase price plus interest and other
expenses the redemptioners cannot exercise
their right of redemption.
However, of the debtor will not exercise
his right of redemption, any redemptioner can
exercise his right of redemption. The first
redemptioner, ang una nga mu redeem has 1
year, pareho cya sa debtor but the succeeding
redemptioner has only 60 days.
Example: Si A si B, C, mao ni clay other
creditors ni A. Si A for example ni exercise his
right of redemption shall we say 3 months from
the registration of the sale. Now, w/in 60days
thereafter the other redemptioner for example
Mr. B, can exercise his right w/in 60 days, then
the next redemptioner.
Even if pwd the other redemptioner can
exercise their right of redemption within 60 days
even if it is beyond the 1 yr. period. So dghn cla
nanaglinya, dghan cla junior encumbrancers so
ug mulapas pa sa one year bsta lng w/in 60 days
lng except atong 1st redemptioner. After the 1 st
redemptioner, other redemptioner have 60 days
only. But of course samtang kani cla nag
redeem2 and if it is still in the 1 year period the
judgment obligor can exercise his right of
redemption as long it is still within 1 year. In
other words the judgment obligor may redeem
the property either from the purchaser or from a
redemptioner.
Example:
Si A, ni redeem kai nagtuo cya
nga d mulukat ans debtor. Unya misulod c B. sad
hang niredeem c B and it is still one year the
judgment obligor can still exercise his right of
redemption by reimbursing the expenses of the
redemptioner B.
Written notice of any redemption
must be given to the officer who made the
sale and a duplicate filed with the registry
of deeds of the place, and if any
assessments or taxes are paid by the
redemptioner or if he has or acquires any
lien other than that upon which the
redemption was made, notice thereof must
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in like manner be given to the officer and
filed with the registry of deeds; if such
notice be not filed, the property may be
redeemed without paying such
assessments, taxes, or liens.
Section 29. Effect of redemption by
judgment obligor, and a certificate to be
delivered and recorded thereupon; to whom
payments on redemption made. - If the
judgment obligor redeems, he must make
the same payments as are required to
effect a redemption by a redemptioner,
whereupon, no further redemption shall be
allowed and he is restored to his estate.
The person to whom the redemption
payment is made must execute and deliver
to him a certificate of redemption
acknowledged before a notary public or
other officer authorized to take
acknowledgments of conveyances of real
property. Such certificate must be filed and
recorded in the registry of deeds of the
place in which the property is situated, and
the registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale. The payments mentioned
in this and the last preceding sections may
be made to the purchaser or redemptioner,
or for him to the officer who made the sale.
Section 30. Proof required of redemptioner.
– waste on the property by injunction, on the
The redemptioners, you know you cannot
just redeem.
By the way basin mangutana mu nganu
mn gd interesado cla ana nga muredeem? Kana
mn gud sa auction patas anay ra mn gd ug knsay
highest bidder. Unya for example katong highest
bidder cya pinkataas ug bid pro ang iyang ubos
gihapon kau. So mao nga katong mga
redemptioners nagtoo gihapon nga makginansya
gihapon cla if ilang eredeem, ilang eredeem. For
example ang worth sa maong property is 1 billion
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
nya nahalin ra ug 20 million, so bsan knasy pa na
mu redeem2 d pa nah mu abot 1 billion d pa cya
ma.alkanse.
A redemptioner must produce to the officer,
or person from whom he seeks to redeem,
and serve with his notice to the officer a
copy of the judgment or final order under
which he claims the right to redeem,
certified by the clerk of the court wherein
the judgment or final order is entered; or, if
he redeems upon a mortgage or other lien,
a memorandum of the record thereof,
certified by the registrar of deeds; or an
original or certified copy of any assignment
necessary to establish his claim; and an
affidavit executed by him or his agent,
showing the amount then actually due on
the lien.
Not just any person can be a
redemptioner. You have to throw that you have
an interest in the property. A redemptioner under
Section 30, are required to serve a copy of the
judgment or final order under which he claims
the right to redeem, certified by the clerk of the
court wherein the judgment or final order is
entered; or, if he redeems upon a mortgage or
other lien, a memorandum of the record thereof,
certified by the registrar of deeds; or an original
or certified copy of any assignment necessary to
establish his claim; and an affidavit executed by
him or his agent, showing the amount then
actually due on the lien.
So he has to present his interest over the
property such as that he is a mortgagee or a
creditor of the judgment obligor with real estate
mortgage.
Section 31. Manner of using premises
pending redemption; waste restrained.
Now, remember that w/in the one year
period or w/in the 1 year period wherein the
judgment debtor can exercise his right of
redemption the debtor shall continue to occupy
the property. Sa ato pa bsan nabaligya na nah
cya pero kai duna pa mn cyay right of
redemption magpabilin gihapon cya sa premises.
Pro pananglitan ikw ron ang tag.iya sa balay.
Balay na cya or apartment, unya nkahibalo mn ka
nga maglisod ka ug redeem unsay buhaton
nimu? Most likely imu na nah cyang pasagdan.
Nganung pasagdan nmn nah nimu? Anyway d
nmn nah imu. Pareho gd na sa sakyanan nga
g.utang nimu bangko, khiblo na jd ka nga d na jd
na madala nimu ug bayad imu nlng na paturagas
ug dagan anyway bawionon namn sa bangko. So
under Section 31, the court may restrain the
commission of waste on the property by
injunction, on the application of the purchaser or
the judgment oblige.
Example: Yuta, nkakita nka nga gpamutol
na nang kahoy dha, gpamutol na ang mga lubi.
So unsa mn buhaton nimu? Nganung gipamutol
mn ang lubi? Kai khibalo mn cya nga bawionon
na sa nkapalit. So the buyer or the purchaser or
the plaintiff may ask the court to restrain the
commission of waste on the property by
injunction.
Now, the court also may appoint a
receiver in order to preserve the property. Kung
sa ato pang sinultian kanang gitawag ug
caretaker to preserve the property.
Until the expiration of the time allowed for
redemption, the court may, as in other
proper cases, restrain the commission of
application of the purchaser or the
judgment obligee, with or without notice;
but it is not waste for a person in
possession of the property at the time of
the sale, or entitled to possession
afterwards, during the period allowed for
redemption, to continue to use it in the
same manner in which it was previously
used; or to use it in the ordinary course of
husbandry; or to make the necessary
repairs to buildings thereon while he
occupies the property.
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Section 32. Rents, earnings and income of
property pending redemption. - The
purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and
income of the property sold on execution,
or the value of the use and occupation
thereof when such property is in the
possession of a tenant. All rents, earnings
and income derived from the property
pending redemption shall belong to the
judgment obligor until the expiration of his
period of redemption.
The purchaser or a redemptioner shall
not be entitled to receive the rents, earnings and
income of the property w/in the period of one
year. Because the debtor or defendant shall
continue to occupy the property before the
lapsed of redeeming period, he shall continue to
enjoy the fruits the industrial and the natural
fruits of the property.
Section 33. Deed and possession to be
given at expiration of redemption period;
by whom executed or given.
If after the lapsed of the 1 year
redemption period the debtor did not exercise his
right of redemption and the redemptioners also
did not exercise their right of redemption w/in the
period of 60 days the purchaser is now entitled
for the conveyance of the title of the property.
And the sheriff under Section 33 shall execute
now the so called deed of conveyance. The deed
of conveyance shall be register to the registry of
deeds and this will now cause the transfer of the
title to the purchaser. Katong certificate of title
cannot be ground for the transfer of title. Ang
mka patransfer ra sa title mao 2ng deed of
conveyance executed by the sheriff.
In other words, as regards sa real
property w/c is levied for execution, there are 2
documents to be prepared by the sheriff. No. 1 is
certificate of sale w/c is executed after the
auction and No. 2 Deed of Conveyance w/c is
executed after redemption period expires.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
If no redemption be made within one (1)
year from the date of the registration of the
certificate of sale, the purchaser is entitled
to a conveyance and possession of the
property; or, if so redeemed whenever sixty
(60) days have elapsed and no other
redemption has been made, and notice
thereof given, and the time for redemption
has expired, the last redemptioner is
entitled to the conveyance and possession;
but in all cases the judgment obligor shall
have the entire period of one (1) year from
the date of the registration of the sale to
redeem the property. The deed shall be
executed by the officer making the sale or
by his successor in office, and in the latter
case shall have the same validity as though
the officer making the sale had continued in
office and executed it.
Upon the expiration of the right of
redemption, the purchaser or redemptioner
shall be substituted to and acquire all the
rights, title, interest and claim of the
judgment obligor to the property as of the
time of the levy. The possession of the
property shall be given to the purchaser or
last redemptioner by the same officer
unless a third party is actually holding the
property adversely to the judgment obligor.
Section 34. Recovery of price if sale not
effective; revival of judgment.
Now, what is the remedy of the purchaser
of the real property sold or his successor in
interest if he fails to recover the possession
thereof or evicted therefrom, in consequence of
irregularities in the proceedings concerning the
sale, or because the judgment has been reversed
or set aside, or because a third person has
vindicated his claim to the property? Unsa may
remedy niya kung bawian cya. Okay pananglitan
ikw nakapalit, in the auction sale, ikw nkapalit,
what is your remedy if you fail to possess the
property or if you possess the property you were
evicted or ejected from the property? One reason
why you are ejected is that there were
irregularities in the auction sale. Khbalo nmn mu
unsa 2ng mga requisites, such as publication,
posting, supposed there is irregularities and the
auction sale is declared void and as a
consequence the purchaser was divested of his
possession or ownership over this property. Unsa
mn angn iyahang remedy? Ah naa diri, he can file
motion in the same action or he can file a
separate action to recover from the creditor the
price paid. Nkabayad nmn cya sa creditor ang
ka2ng iyang gibayad so he can file motion in the
same case or he can file a separate action to
recover the price paid to the judgment obligee
with interest, or he may also upon motion have
have the original judgment revived in his name
for the whole price with interest, or so much
thereof as has been delivered to the judgment
obligor.
Hinumdumi ha nga kaning purchaser ane
dle cya part sa case. Lahe ni cya ka2ng revival of
judgment. Kaning revival of judgment under
Section 34, this is only for the purpose of
collection, this is only for the purpose of having
the purchaser collect from the judgment debtor.
If the purchaser of real property sold
on execution, or his successor in interest,
fails to recover the possession thereof, or is
evicted therefrom, in consequence of
irregularities in the proceedings concerning
the sale, or because the judgment has been
reversed or set aside, or because the
property sold was exempt from execution,
or because a third person has vindicated
his claim to the property, he may on motion
in the same action or in a separate action
recover from the judgment obligee the
price paid, with interest, or so much thereof
as has not been delivered to the judgment
obligor; or he may, on motion, have the
original judgment revived in his name for
the whole price with interest, or so much
thereof as has been delivered to the
judgment obligor.
The judgment so revived shall have the
same force and effect as an original
Page | 167

judgment would have as of the date of the
revival and no more.
- Usbon nato ang iyang remedies, the
purchaser can recover from the
judgment creditor or from debtor at
his option. So unsa mn ang iyang
basihan kung knas iyang gukuron. So
tan.awon niya kung which (?) who
cguro is the most solvent.
- kung na eject cya, He may also file
an action for ejection. Kung
interesado jd cya sa property he can
file a separate action to recover the
possession of the property.
Section 35. Right to contribution or
reimbursement.
This about a right of solidary debtor to
recover or compel contribution from his co-
debtors, he may compel the contribution to
others.
So do you remember solidary debtors? So
the creditor can collect from any one of them. For
example, A, B, C, D, they are solidary debtors.
The creditor can run after from any one of them.
So for example Mr. A was the one who is
compelled to pay, he can demand contribution
from his co-debtors. Of course that pre-supposes
that g.apil pd to cla sa kiha.
When property liable to an execution
against several persons is sold thereon,
and more than a due proportion of the
judgment is satisfied out of the proceeds of
the sale of the property of one of them, or
one of them pays, without a sale, more than
his proportion, he may compel a plaintiff nga duna jud ni cyay mag kabtangan
contribution from the others; and when a
judgment is upon an obligation of one of
them, as security for another, and the
surety pays the amount, or any part
thereof, either by sale of his property or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
before sale, he may compel repayment from
the principal.
Section 36. Examination of judgment
obligor when judgment unsatisfied.
Kane cyang Sections 36 to 43 this
sections provide proceedings supplementary to
execution.
This presupposes that there has been an
execution. Duna nay execution, duna nay writ of
execution g.issue ang court. Pro the judgment
was still unsatisified? Nganung wa mn
nasatisfied? Kai way kabtangan nag debtor nga
nakita nila. Kai kung ikw debtor unsa mn imung
buhaton kung naa nay writ of execution? Natural
tago.an na nimu imung properties. Magpa.pobre2
jd ka kai d mn ka mapriso ana, d mn ka mapriso
ug utang ang imu ra mn kabtangan ang apason.
Now, Sections 36 to 43 these are the
proceedings after the execution that the
judgment creditor or obligee may undertake in
order to satisfy the judgment.
Unsa mn ning section 36?
- When the return of a writ of
execution issued against property of a
judgment obligor, or any one of several
obligors in the same judgment, shows
that the judgment remains unsatisfied,
in whole or in part,
sa ato pa wa jd butang nga nkita, way
nasheriff, way refrigerator or tv, lawas ug
kalag ra jud sa debtor, pag.adto sa balay
exempt mn s ang balay for execution, bsan
bicyle wla. Unsa mn buhaton? Nagtoo mn nag
nga gitagoan, now look at section 36.
the judgment obligee, at any time after
such return is made, shall be entitled to
an order from the court which rendered
the said judgment, requiring such
judgment obligor to appear and be
examined concerning his property and
income before such court or before a
commissioner appointed by it, at a
specified time and place; and
proceedings may thereupon be had for
the application of the property and
income of the judgment obligor towards
the satisfaction of the judgment.
 Meaning to say the plaintiff, the prevailing
party can file a motion in court to have the
obligor examined under oath the
whereabouts of his property including his
income kai nagtoo j dang plaintiff nga dako
jd ni cya ug income.
But no judgment obligor shall be
so required to appear before a
court or commissioner
outside the province or city in
which such obligor resides or is
found.
 So the obligor is not required to appear
outside the city or outside the province. He
can be examined only w/in the province or
city where he is residing. What’s the
purpose? Mura ni cyag ug mode ug
discovery ba, under oath, of course if you
are found to be telling a lie, you can be
cited for contempt.
Another, kung pananglitan wala jd cya, bsan
personal wala pero nahibwan nga naa cyay
collectibles, or naa cyay mga bank deposits. Look
at Section 37.
Section 37. Examination of obligor of
judgment obligor. - When the return of a
writ of execution against the property of a
judgment obligor shows that the judgment
remains unsatisfied, in whole or in part,
and upon proof to the satisfaction of the
court which issued the writ, that a person,
corporation, or other juridical entity has
property of such judgment obligor or is
indebted to him, the court may, by an order,
require such person, corporation, or other
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juridical entity, or any officer or member
thereof, to appear before the court or a
commissioner appointed by it, at a time and
place within the province or city where such
debtor resides or is found, and be examined
concerning the same.
 Now, this person now to be examined is
different from the defendant. They are
other [persons nga dunay bayronon or
utang sa debtor. For example a bank,
example the plaintiff has obtained an
information that the debtor has a bank
deposit in this certain bank or duna cyay
shares of stocks ane or duna cyay utang
nga collectahonon aneng maong
corpoaration. So unsay buhaton sa
plaintiff? That person who is the debtor of
the judgment debtor, duna cyay utang sa
debtor shall be examined as to the extent
of the collectible, as to the amount of
collectible of the judgment obligor.
Examined nah cya kung pila jd ag
iyahang utang sa judgment debtor.
Examinon na cya because credits of the
judgment debtor can be garnish.
Pananglitan duna cya bank deposit aneng
maong bangko, the same can be garnish
for the satisfaction of the judgment.
The service of the order shall bind all
credits due the judgment obligor and all
money and property of the judgment
obligor in the possession or in the control
of such person, corporation, or juridical
entity from the time of service; and the
court may also require notice of such
proceedings to be given to any party to the
action in such manner as it may deem
proper.
Sec. 38. Enforcement of attendance and
conduct of examination. - A party or other
person may be compelled, by an order or
subpoena, to attend before the court or
commissioner to testify as provided in the
two preceding sections, and upon failure to
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
obey such order or subpoena or to be
sworn, or to answer as a witness or to
subscribe his deposition, may be punished
for contempt as in other cases.
 If the refuse to obey with subpoena or
refuse to answer question, they can be
punish for contempt as in other cases.
Examinations shall not be unduly
prolonged, but the proceedings may be
adjourned from time to time, until they are
completed. If the examination is before a
commissioner, he must take it in writing
and certify it to the court. All examinations
and answers before a court or
commissioner must be under oath, and
when a corporation or other juridical entity
answers, it must be on the oath of an
authorized officer or agent thereof.
Section 39. Obligor may pay execution
against obligee.
 This refers now to the persons indebted
to the judgment debtor.
After a writ of execution against
property has been issued, a person
indebted to the judgment obligor (katong
tawo nga naay utang sa napildi nga obligor, for
example bank) may pay to the sheriff holding
the writ of execution the amount of his
debt or so much thereof as may be
necessary to satisfy the judgment, in the
manner prescribed in section 9 of this Rule,
and the sheriff’s receipt shall be a sufficient
discharge for the amount so paid or
directed to be credited by the judgment
obligee on the execution.
 In other words there could be a so called
force or compulsory novation. Sa ato pa
ang katong debtor isipon na to cya nga
debtor sa plaintiff, dle debtor sa
judgment debtor.
Section 40. Order for application of
property and income to satisfaction of
judgment. - The court may order any
property of the judgment obligor, or money
due him, not exempt from execution, in the
hands of either himself or another person,
or of a corporation or other juridical entity,
to be applied to the satisfaction of the
judgment, subject to any prior rights over
such property.
If, upon investigation of his current
income and expenses, it appears that the
earnings of the judgment obligor for his
personal services are more than necessary
for the support of his family, the court may
order that he pay the judgment in fixed
monthly installments, and upon his failure
to pay any such installment when due
without good excuse, may punish him for
indirect contempt.
 Pabayron pro dle kuhaon tanan, kai unsa
p mn ang ila ipalit ug bugas. Ah tingali
20%, 25% of his income or his salary.
Section 41. Appointment of receiver. - The
court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with, the
property of the judgment obligor not
exempt from execution.
 Unsa nang receiver? He is considered as
in layman term mao na cyay gitawag ug
caretaker. Nganu mn? Tungod kai kung
way caretaker e.appoint, basig pasagdan
ra 2 cya sa judgment debtor kai anyway
d nmn nah iya later on.
Section 42. Sale of ascertainable interest of
judgment obligor in real estate. - If it
appears that the judgment obligor has an
interest in real estate in the place in which
proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest
therein can be ascertained without
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controversy, the receiver may be ordered to
sell and convey such real estate or the
interest of the obligor therein; and such
sale shall be conducted in all respects in
the same manner as is provided for the sale
of real estate upon execution, and the
proceedings thereon shall be approved by
the court before the execution of the deed.
 So ka2ng receiver mao 2 cyay
mu.ascertain, kung ibaligya to niya ang
interest sa judgment obligor, if the
judgment obligor has interest in any real
property for the satisfaction of the
decision.
Section 43. Proceedings when indebtedness
denied or another person claims the
property. - If it appears that a person or
corporation, alleged to have property of the
judgment obligor or to be indebted to him,
claims an interest in the property adverse
to him or denies the debt, the court may
authorize, by an order made to that effect,
the judgment obligee to institute an action
against such person or corporation for the
recovery of such interest or debt, forbid a
transfer or other disposition of such
interest or debt within one hundred twenty
(120) days from notice of the order, and
may punish disobedience of such order as
for contempt. Such order may be modified
or vacated at any time by the court which
issued it, or by the court in which the action
is brought, upon such terms as may be just.
 For example, here is a person wherein it
is suspected that he is holding the
property of the judgment debtor nya
nagtoo ang kihante nga kane cya gigamit
ra ni cya nga dummy aron makalihay sa
execution. Now unsaon mn na ron, unsa
mn ang remedy? Under section 43, the
court may authorize the creditor to file a
collection case or to recover the property.
So for example the plaintiff really
believes that this person is just a dummy
of the judgment obligor, so he believe
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
that the owner of the property is really
the judgment debtor, and in order to
escape execution, now under section 43
the court may authorize the judgment
creditor to file a case for collection or to
recover the property from that person
who is claiming to be the owner of the
property.
 In other words under section 43, kung
ka2ng tawo nag gi.ingon nga nakupot
a2ng property sa judgment debtor,
mudeny gani 2 nga dle nah sa judgment
debtor the court has no power to
determine whether the property really
belongs to the judgment debtor and to
order such person to pay the judgment
creditor. What the court can do is to
merely authorize the judgment creditor
to file a case to recover the property.
Section 44. Entry of satisfaction of
judgment by clerk of court. - Satisfaction of
a judgment shall be entered by the clerk of
court in the court docket, and in the
execution book, upon the return of a writ of
execution showing the full satisfaction of
the judgment, or upon the filing of an
admission to the satisfaction of the
judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by his
counsel unless a revocation of his authority
is filed, or upon the endorsement of such
admission by the judgment obligee or his
counsel on the face of the record of the
judgment.
If the judgment has already been
satisfied the same shall be recorded in the
judgment book or the execution book.
Section 45. Entry of satisfaction with or
without admission. - Whenever a judgment
is satisfied in fact, or otherwise than upon
an execution, on demand of the judgment
obligor, the judgment obligee or his counsel
must execute and acknowledge, or indorse,
an admission of the satisfaction as provided
in the last preceding section, and after
notice and upon motion the court may order
either the judgment obligee or his counsel
to do so, or may order the entry of
satisfaction to be made without such
admission.
So pananglitan wla naghulat ang debtor
ug writ of execution kai nivoluntario cya ug
bayad, unsa may proweba niya nga nkabayad na
cya? the obligor or defendant can demand from
the plaintiff or his counsel to execute and
acknowledge that he has already satisfied the
judgment.
Sec. 46. When principal bound by judgment
against surety. - When a judgment is
rendered against a party who stands as
surety for another, the latter is also bound
from the time that he has notice of the
action or proceeding, and an opportunity at
the surety’s request to join in the defense.
Now under this rule, when the surety is
being sued by the creditor the principal debtor
would not be bound by the decision if the
principal debtor is not notified. So this rule
applied where the surety is sued by the creditor
w/o joining the principal, now the surety should
notify the principal.
Section 47 this is important
Section 47 tells us about res judicata.
There are two kinds of res judicata: bar by prior
judgment and conclusiveness of judgment.
Paragraph a is about judgment in rem and
paragraph b is judgment in personam. Paragraph
a and Paragraph b is about bar by prior
judgment, judgment in rem and judgment in
personam.
Sec. 47. Effect of judgments or final orders.
- The effect of a judgment or final order
rendered by a court of the Philippines,
having jurisdiction to pronounce the
judgment or final order, may be as follows:
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

 Now take note that there is res judicata not the subject-matter and of the cause of
only when there is judgment on the merits, action.
(a) In case of a judgment or final there could also be res judicata when the  So there is res judicata if the first action
order against a specific thing, or court has rendered a final order, meaning has been already terminated and the
in respect to the probate of a will, an order w/c finally disposes the case. parties in the first and the second cases
or the administration of the are more or less the same.
estate of a deceased person, or in Example: during pre-trial the plaintiff did not
respect to the personal, political, appear w/o valid reason. What would the Example:
or legal condition or status of a court do w/ regards to the case? Dismiss
particular person or his the case and as what you have learned the 1. naay uban nga magminladito.
relationship to another, the order of dismissal is considered as Pananglitan si C files a case against D,
judgment or final order is dismissal w/ merits, meaning dismissal w/ unya because he failed to attend during
conclusive upon the title to the prejudice. Suppose the order of dismissal trial the case is dismiss. Magmilnaldito
thing, the will or administration, has become final because there is no ni usahay si C, so in order to resurrect
or the condition, status or appeal or no reconsideration or the case he will file the same sum of
relationship of the person; whatsoever, now that would now create res money against D unya pakapinan niya
however, the probate of a will or judicata as regards parties. So as regards ug laing party shall we say Mr. A. Now,
granting of letters of party there was no more case that could be take note that the parties are
administration shall only be file over the same issues or over the same substantially the same, there could still
prima facie evidence of the death parties. be res judicata.
of the testator or intestate;  Usbon nko ha kanang res judicata dle lng 2. Another palusot, kung d mn usbon ang
 This is about for judgment in para sa decision or judgment but also there parties ari sa cause of action. For
rem. is res judicata if there has already been a example managsuon, A, B, C, D.
final order. And that final order is final and Gi.angkon jud tanan ni D ang ilang
(b) In other cases, the judgment or executor. We already discussed what is kabtangan, wa namahin si D. So unsay
final order is, with respect to the final order that is an order w/c finally buhaton nilang tulo? They may file
matter directly adjudged or as to disposes of the case. action for partition, dghan paagi, but
any other matter that could have 2. It must be a judgment or order on the one remedy is to file a complaint for
been raised in relation thereto, merits partition against Mr. D. Let us say that
conclusive between the parties  Now, order of dismissal due to the non the 3 failed during pre-trial or during the
and their successors in interest appearance of the plaintiff, Kung ang korte initial presentation of evidence and the
by title subsequent to the mudismiss tungod kai ang plaintiff wla court dismiss the case. The dismissal is
commencement of the action or mutunga during pre-trial, so gdismiss ang dismissal on the merits or dismissal w/
special proceeding, litigating for case. So imung mkita nag gdismiss w/o the prejudice. Unsa ilang gibuhat, instead of
the same thing and under the presentation of evicence . Bsan wlay filing a partition ang ilang abogado
same title and in the same presentation of evidence the dismissal is mi.ingon nga filan nato ug recovery of
capacity; and considered dismissal on the merits. And if that ownership. Take note that the issues of
 This is about judgment in order becomes final and executory it is as if both cases are the same or similar. Is
personam there has been already a decision in the there res judicata? The answer is yes.
merits of the case, so isipon nga ang kaso You cannot escape res judicata by
JD: REPEAT Paragraph a and b this about bar from nadecidan on the merits. So mao nay pasabot changing the theory of the case or by
prior judgment. In judgment in rem and judgment anang judgment or order on the merits. changing the title of the case. d ba
in personam. pareha mn nah cla ug issue, yes
3. That it must have been rendered by a ownership. So there is identity of the
Now what are the elements of bar by prior court having jurisdiction over the subject parties between these two cases,
judgment or unsa mn requisite sa res judicata? matter and the parties identity of issues or causes of action and
1. The former judgment or order must be 4. There must be, between the first and the identity of the subject matter.
final second actions, identity of the parties, of
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Kanang res judicata popareha ra jd na cya sa litis
pendencia. Ang nkalahi lng sa litis pendencia, the
other action or both action is still pending. Res
judicata on the other hand is one of the action is
already terminated, so you call that as bar by
prior judgment.
Is that necessary that the parties are the same?
Kai usahay magminaldito mn nang uban, pun.an
ug party. Ah the SC said that the parties are
substantially the same. There could still be res
judicata.
Now what about conclusiveness of judgment?
Usa mn kalainan niini sa res judicata? Although
kanung conclusiveness of judgment popareha ra
ni sa res judicata.
- In conclusiness of judgment there is only
identity of issues or preclusion of issues.
Example:
Mr. D obtain a loan from Mr. C. Let us
suppose that he obtain a loan in amount of
1 Million. And is payable in 10 monthly
installments. So 100thousand in 1 been so adjudged, or which was actually
installment. Let us suppose that when the 1 st
installment was due Mr. C filed a collection
case against D. Ang G.R. jud and one
contract one breach and because there is
only one violation one case. Pero kaning
atoang example this is the exception to the
rule. Because if the contract is capable of a
several performance just in this case,
kadgahn niya bayran ang iyang utang, pwd
ni cya masubject ug different cases or
several cases. So kada installment can be a
subject of one case. Let us suppose that
when the 1st installment becomes due, D
failed to pay despite demand. That’s why
Mr. C filed a collection case against Mr. D. In
his answer Mr. D raised the defense of shall
we say forgery, ingon cya forge nah, this
promissory note is forged. Now the court
however did not listen to his defense and
the court ruled that the promissory note is
valid.
Now let us soppose that the 2 nd installment
is now also due, when it was due Mr. C made
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
a demand despite demand Mr. D failed to
pay. Mr. C now filed another case over the
2nd installment against D. Can Mr. D raise
again the defense of forgery? Pananglitan
iya gihapon gibalik ang iyang defense nga
forgery. Question is he allowed now to raise
the same issue? The answer is no more
there is now preclusio abecio (?) or
conclusiveness of judgment.
Meaning in conclusiveness of judgment,
there is only identity of issues but different
causes of action. You take note that only
issues are identical but the causes of action
are different unlike in res judicata or bar by
prior judgment that there is identity of the
parties, identity of causes of action and
identity of subject-matter.
(c) In any other litigation between
the same parties or their successors in
interest, that only is deemed to have been
adjudged in a former judgment or final
order which appears upon its face to have
and necessarily included therein or
necessary thereto.
Section 48. Effect of foreign judgments or
final orders.
Now our courts will not take judicial
notice on foreign judgments. You have learned
that in your evidence. Dle nah pwd nga kung
dunay decision didto sa gawas nga automatic pd
nga e.implement nato dri. You have to prove that.
You have to file a case or the plaintiff has to file a
case in this country for the enforcement of that
decision. D pwd nga pareha dri nga if nakadaug
nka final and executory all you have to do is to
file a motion for execution. Kung didto sa America
nkadaug ka d nah pwd nga mufile ka dri diretso
ug motion for execution, dle nah automatic. You
have to file a case and the cause of action of the
case is the enforcement of the foreign judgment.
In that case of the enforcement of foreign
judgment under Section 48, the defendant can
raise the defense of want of jurisdiction, absence
of jurisdiction, lack of jurisdiction of the foreign
court who render judgment, want of notice to the
party, collusion, fraud, or clear mistake of law or
facts.
In other words, judgment of a foreign
court cannot be enforce for execution here in our
country, such judgment will only create a right of
action and its non-satisfaction can create right of
action. Sa ato pa kung nkadaug ka didto adto
unta nah nimu e.execute. Pro Kung whatever
reason you failed to execute that foreign
judgment in that court where you file a case and
you choose to enforce it here, ah d nah
automatic. If you want to enforce that foreign
judgment here you have to file a complaint. That
foreign judgment will only give you a cause of
action. So you file a case here for the
enforcement of that decision. Unya in that
complaint or in that action the defendant will be
given a chance to answer and raise the defense
of want of jurisdiction, absence of jurisdiction,
lack of jurisdiction of the foreign court who
render the decision, want of notice to the party,
collusion, fraud, or clear mistake of law or facts.
The effect of a judgment or final
order of a tribunal of a foreign country,
having jurisdiction to render the judgment
or final order is as follows:
(a) In case of a judgment or final
order upon a specific thing, the judgment or
final order is conclusive upon the title to
the thing; and
(b) In case of a judgment or final
order against a person, the judgment or
final order is presumptive evidence of a
right as between the parties and their
successors in interest by a subsequent
title.
In either case, the judgment or final
order may be repelled by evidence of a
want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of
law or fact.
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RULE 39; Sec 48
So in one case, sa letter a
(a) In case of a judgment or final
order upon a specific thing, the
judgment or final order is
conclusive upon the title of the
thing; and
(b) In case of a judgment or final
order against a person, the
judgment or final order is
presumptive evidence of a right
as between the parties and
their successors in interest by a
subsequent title.
In either case, the judgment or final order
may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact.
So if it is IN REM- Conclusive, if it is in
PERSONAM-Presumptive, but in either case the
judgment or final order is recalled bec of want of
jurisdiction. In other words, the court here finds
that the decision in that court is in order, there is
jurisdiction, there is notice to the parties, there
was no collusion, there was no fraud, there was
no mistake of law or fact our court now will
enforce the decision here.
Now in one case, in the case of Northwest Orient
Airlines Inc. vs. CA 241 SCRA 982, plaintiff
obtained a judgment against the defendant in
Tokyo Japan, but being unable to execute a
judgment in Japan, plaintiff filed a suit for its
enforcement before RTC Manila. Defendant filed
his answer alleging lack of jurisdiction, clear
mistake of fact and law . The SC said here that a
foreign judgment is presumed to be valid and
binding from the country from which it comes
until the contrary is shown. Since the defendant
was unable to overcome this presumption, the SC
ordered the enforcement of the decision.
So in other words, the defendant has the burden
of / has to present evidence that the court there
lacks jurisdiction, there was no notice, that there
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
was collusion failing which then the decision is their intending rendition and for purposes of
considered valid and shall be enforced here in their ultimate effects of a final judgment in a
our country. main case.
COMPROMISE AGREEMENT: They are considered provisional because they are
Now take note that judgment based on merely temporary although later on if there is/are
compromise agreement, basis to make them permanent, they can be
akonasiguroningnasultininyokanang judgment made permanent after the termination of the
based on compromise agreement, so proceedings. Now kaningmga provisional
pananglitannagkiniha-ay si C ugsi D ugdunaysilay remedies niasa rules of court, they can be
compromise agreement, now kanangilang granted even by first level courts, as long as the
compromise agreement main case is pending in that court. Kay gitawag
pwederanamaoyhimoungdesisyonsa court man gudnisiyana ancillary remedies so it
kopyahunrasa court. For example “ Herein presupposes that there is a main case, even the
parties submitted to compromise agreement, the first level court can grant provisional remedies as
terms and conditions of which are as follows: 1. long as the main case is pending in that court.
Unsay ilangmgakasabutan, pakpak quoted For example, the provisional remedy of
(hehehe) dretsodayunug wherefore. Wherefore, preliminary injunction, the first level court can
finding the said compromise agreement to be in issue preliminary injunction in cases of forcible
accordance with good customs, public policy, entry and unlawful detainer because these cases
public order, the court hereby approves it and are cognizable by first level courts. And also, you
adopts it as decision of this case”. Simple ra kayo should also take note that these provisional
na. So in other words, even if parties have remedies mentioned in RULES 57-61, these are
entered into a compromise agreement, the court not the only provisional remedies that can be
will have to see that the compromise agreement granted by the court. There are other provisional
is in accordance with law, public customs, public remedies that the court may grant, for example
morals, public policy. If there is nothing irregular kanang petition for the writ of amparo, daghan
about the compromise agreement then the court man kayo, naa may provisional remedies
will have to approve it and adopts it as judgment napwedeniya ma grant, naa may gitawagna
in the case. temporary protection order, witness protection
order, inspection order, production order. In VAW-
Remember that decision based on C kahinumdummo, katongsa criminal law, when a
compromise agreement IS IMMEDIATELY wife files a case for violation of “violence against
EXECUTORY, the parties need not wait, for 15 women and children”, she can ask for temporary
days for the execution of judgment because it is relief that so called, temporary protection order.
immediately executory. The parties cannot file an So that is an example of provisional remedy that
appeal therefrom unless the compromise can be granted by the court. And TPO is not
agreement is set aside because the same mentioned in in Rules 57-61 although kaningmga
entered into through force, duress etc. provisional remedies dirimaoniangmga common,
PRELIMINARIES FOR PROVISIONAL the point is that this is not the only provisional
REMEDIES remedies that the court may issue, but there are
Now, Rules 57-61 these are all about provisional other provisional remedies that the court may
remedies. Provisional meaning issue as long as the court has jurisdiction over
temporary,PROVISIONAL REMEDIES known the main case
also as ANCILLARY/AUXILIARY When we discussed execution, we came to know
REMEDIES.These are writs and processes that when the judgment defendant fails to satisfy
available during the pendency of the action the a decision for example payment of sum of
which may be resorted to by a litigant to money, di nasigurokabayad, the plaintiff may ask
preserve and protect certain rights and interest for a motion for execution. Thereafter the court
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will issue a writ of execution, the sheriff now will
go after the properties of the judgment debtor for
the satisfaction of the decision. Wala man
kayikabayad, karun and plaintiff
pugsonkasapagpabayadpina.agisapag attach
saimong properties or attachment of your
properties.
Kananghakutonimongmga properties mao nay
gitawagug“LEVY ON EXECUTION”unya nay
terminoangtagaeskinaana, sheriponka,
gipangsherip, gidalhanugdekarga, gisherip,
gidad.an oy, louy kayo. Kanisiya, kining
preliminary attachment,
kanangpaghakotanangmgabutang, aronibayad,
kanisiyapwederanisiyabuhaton even if the case is
still pending kung siguristaka, gusto kamaniguro,
so preliminary attachment, sheriponnimodaan so
that kung makadaugganikasakasodilika empty
handed.
However, preliminary attachment can only be
issued on certain grounds, this is not available in
any case. There are specific grounds, mentioned
in Rule 57 Sec 1 and the grounds here are
exclusive.
RULE 57
PRELIMINARY ATTACHMENT
Section 1.Grounds upon which attachment
may issue.
At the commencement of the action or at
any time before entry of judgment, a
plaintiff or any proper party may have the
property of the adverse party attached as
security for the satisfaction of any
judgment that may be recovered in the
following cases:
(a) In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a cause
of action arising from law, contract, quasi-
contract, delict or quasi-delict against a
party who is about to depart from the
Philippines which intent to defraud his
creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
or an officer of a corporation, or an
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
attorney, factor, broker agent, or clerk, in
the course of his employment as such, or by
other person in a fiduciary capacity, or for a
willful violation of duty;
(c) In an action to recover the possession of
property unjustly or fraudulently 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;
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon which
the action is brought, or in the performance
thereof;
(e) In an action against a party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors; or
(f) In an action against a party who does
not reside and is not found in the
Philippines, or on whom summons may be
served by publication.
So what is the purpose, for
security.Sheripondaan, maniguroka.Kanus.a man
kamaka file ani? At the commencement of the
action or at any time before the entry of
judgment. Pero kasaguran jud ani, inig file sa
complaint naa na did toy prayer for the issuance
of preliminary attachment. Inig file nimo,
imodayuni-allege any of these grounds, and you
ask now the court for the issuance of preliminary
attachment. Mao gyud nay sagad, for example
complaint for a sum of money, naa nani daan.
Mangayo naka daan, usually at the
commencement of the action.
Next question, who can ask for preliminary
attachment? You might have an idea that it
is only the plaintiff who can ask for
preliminary attachment, actually it is not.
Preliminary attachment can be asked by
any party who has a claim, he could be the
plaintiff or he could be the defendant as regards
his counterclaim, he could be the defendant as
regards his cross claim against his co-defendant,
or he could be a third party claimant
So what are the grounds, action for the recovery
of a specified amount of money, meaning
liquidated. Other than moral or exemplary,
kaning moral gud, di man gudniklarogud,
sagadanaangkorte di ganimuhatag, mao nay
gitawagugunliquidated damages.
SO for example the plaintiff got an information,
that defendant is about to leave the Philippines.
Question, can that be already a basis for the
issuance of preliminary attachment? The answer
is NO, the mere ground that a defendant is going
abroad is not sufficient basis for the issuance of
preliminary attachment. There must be proof,
that there is intent of the defendant to defraud
his creditors. Departure alone is not enough.
So in letter b: In a case of malversation,
atonglinawon ha. Kaningmaong provisions in
provisional remedies, this could also be applied
to criminal cases. So for example, an accused is
charged with malversation, now the prosecution
can file for preliminary attachment on the ground
mentioned in letter b because, the money or
property embezzled or fraudulently misapplied or
converted tohis own use. So in letter B intent
to defraud is no longer required, the mere
fact that the subject of the case is money
or property embezzled or fraudulently
misapplied or converted to his own use.
Then another, wagyudmoymahimu,
inyonggyudningmemorizon. (he simply reads the
subparagraph above). So pwederamanna, i-
mnemonic ninyo, di man necessary you have to
memorize everything keywords langba.
For example, the defendant is charged with
estafa thru issuance of bouncing check, that
would fall under letter d, the prosecution can ask
for preliminary attachment.
Another, letter f.So for example, Mr. C filed a case
against Mr. K, Mr. K is a Korean, being a Korean,
he is not a resident here in the Philippines, unya
he cannot also be found in the Philippines,
milayassiMr. K. Now remember that Mr. K cannot
be served with summons personally and even by
substituted service of summons. In order for the
court to acquire jurisdiction over the case, take
note that this case is purely in personam, so that
the court can acquire jurisdiction over Mr. K, Mr. C
can ask for the issuance of preliminary
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attachment over certain properties of Mr. K here
either personal or real properties so that by doing
so, the case now will be converted from purely in
personamto quasi in rem. And after the court
issued the writ of preliminary attachment, the
plaintiff can now have the summons published in
a newspaper and other requirements under Sec
15 Rule 14 of the Rules of Court. Summons by
publication must be accompanied by
complimentary service of summons by a
registered mail. MAO NI SIYAY PURPOSE SA
LETTER F, TO CONVERT THE ACTION INTO
QUASI-IN REM.So when the court acquires
custody over the res, the jurisdiction over the
person of the defendant maybe dispensed
with.Then, why is there a need to published the
summons by publication? For compliance of due
process.Bastagani nay publication duna nay
kaluha“ complimentary service of summons by
registered mail”.
So there are two purposes for preliminary
attachment.
1. To seize the property of the debtor
before final judgment and put the
same in custodialegis even while the
action is pending for the satisfaction
of the later judgment and
2. Enable the court to acquire
jurisdiction over the res or property
subject of the action in case the
service in person or other service to
acquire jurisdiction over the
defendant cannot be effected.
Application for preliminary attachment is usually
included in the complaint. Of course in the
complaint, it must be alleged any of these
grounds, or some of these grounds should be
alleged in the complaint, aside from the cause of
action.
Then attach also to the complaint would be the
affidavit because, in the application for
preliminary attachment, there are two
requisites. 1. The affidavit setting forth the
ground 2. The bond of the applicant.>>>
What is the purpose of the bond? To answer for
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
whatever damages, kaypananglitan, kana baying
kasodilibayasiguradona muda.ug ka . So what if
later on the court will find that you have no
evidence or there is no basis for the issuance of
the preliminary attachment. So the plaintiff has
to pay the defendant damages. So
unsaonmanapagsigurosa defendant..>>>upon
the bond.?
If not, if the plaintiff did not incorporate in his
complaint, he can file a motion for the issuance
of preliminary attachment. So for example, wala
pa mugawassanasud with intent to defraud, so
unsaon man, imodiayi.incorporatesaimong
complaint, unsaon man, wa pa man mugawas?
Peropagkadawatsa summons usapamanniguwas,
usa pa man nilayas to defraud the creditors so
dali2x sad dayunkag file.
BAR Q: DEFINE & DIFFERENTIATE
PRELIMINARY ATTACHMENT, LEVY ON
EXECUTION AND GARNISHMENT
In two bar exams, examinees were asked to
distinguish and define these three kinds of
attachments; preliminary attachment,
garnishment and levy on execution.
PRELIMINARY ATTACHMENT>>> it is one
which is issued at the commencement of the
action or anytime before the entry of judgment
as security for the satisfaction of any judgment
that maybe recovered in cases provided for
under the rules. LEVY ON EXECUTION>>> of
course maonisiyaang counterpart sa preliminary
attachment after the judgment has become final
and executory. That is the writ issued where the
property of the defendant are taken after the
judgment has become final and executory
(sheripon). GARNISHMENT>>> is a kind of
attachment in which the plaintiff reaches the
credits such as family deposits belonging to the
defendant and other third persons who are
indebted to the debtor. This is a kind of
attachment to reach the so called incorporeal
properties of the debtor. Garnishment does not
involve actual seizure of incorporeal properties, it
is done by mere giving of notice to the person
who is having credits to the debtor.
Sec. 2.Issuance and contents of order.
An order of attachment may be issued
either ex parte or upon motion with notice
and hearing by the court in which the
action is pending, or by the Court of
Appeals or the Supreme Court, and must
require the sheriff of the court to attach so
much of the property in the Philippines of
the party against whom it is issued, not
exempt from execution, as may be
sufficient to satisfy the applicant's demand,
unless such party makes deposit or gives a
bond as hereinafter provided in an amount
equal to that fixed in the order, which may
be the amount sufficient to satisfy the
applicant's demand or the value of the
property to be attached as stated by the
applicant, exclusive of costs. Several writs
may be issued at the same time to the
sheriffs of the courts of different judicial
regions.
Saato pa discretion nasiyasa court kung mag
hearing pa basiya or i-dretsonalangbaniyaug
grant. Provided that all the requisites are present.
So in other words, order of preliminary
attachment could be granted ex parte. After the
court issues an order, granting the prayer for
preliminary attachment, unsa may sunodana, the
next is the issuance of the writ itself, the writ of
preliminary attachment. Ang kana man gung writ
of preliminary attachment, and
mu.issueanaangkanang clerk of court, of course
upon the order of the court, katong order sa
judge, issue dayunug writ of preliminary
attachment ang clerk of court. Inig issue atong
writ of preliminary attachment, unsa may
mahitabo? The sheriff now will have to
implement the writ, so maadtonatodidtoang
sheriff sabalaysa debtor.
Now, take note, the order granting the issuance
of the writ, can be granted ex parte, the order
granting the preliminary attachment can be
granted ex parte and before the issuance of the
summons. So is the issuance of the writ itself, it
can be issued before the service of summons
upon the defendant. However, upon the
enforcement of the writ by the sheriff, the same
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must be preceded or it must be served
contemporaneously with summons.
We suppose that there is already a prayer for the
issuance of preliminary attachment, so the court
now, issues an order granting the preliminary
attachment, now the issuance of the order could
be made before the service of summons. After
the order is issued granting the issuance of
preliminary attachment, comes the issuance of
the writ. Now the issuance of the writ could also
be done before the issuance of summons, before
service of summons upon the defendant. Now,
nganumana, nagi.allowmanasa rules of court nai-
issue ang writ before the service of summons,
nganugi allow manasa rules nai.issueang writ of
preliminary attachment and order sa writ of
preliminary attachment ex parte, nganumana?
>>>> So that the defendant will not be warned,
natural man gyudna, na kung makahibawnakana
pang embarguhon nana, ipang.attach nan a
imong property, taguan man gyudnanimo.
However, the rules require that upon the
enforcement of the writ, when the sheriff would
now serve the writ, the same must be preceded
or accompanied with the service of summons.
Mao nigitawagna contemporaneous service of
summons, so upon the enforcement of the writ,
the same must be preceded or at least, it must
be enforced contemporaneously with the service
of summons, otherwise, the service or the
enforcement of the writ would be void because
the court did not acquire jurisdiction over the
defendant. Dunay exception; exception of course,
when the defendant cannot be served with
summons, because he is out of the country, nay
decision dihasainyonglibrokanang “Mangila vs.
CA” , so there are three stages in the grant of
preliminary attachment, 3 stages, 1.) issuance
of the order, 2.)issuance of the writ---as
regards the issuance of order and the writ,
this can be done before service of
summons, but as regards to the service of the
writ upon the defendant, the same must be
accompanied or preceded with, by service of
summons.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Now under Sec. 2, the properties which are
exempt from execution shall also be exempt from
preliminary attachment. And the writ of
preliminary attachment shall not be issued,
unless the plaintiff shall put up a bond , how
much is the amount of the bond? >>> Equal to
the amount of that property stated in the order.
What is the purpose of the bond, to answer for
whatever damages, that the defendant may
suffer, by virtue of preliminary attachment.
Sec. 3. Affidavit and bond required.
An order of attachment shall be granted
only when it appears by the affidavit of the
applicant, or of some other person who
personally knows the facts, that a sufficient
cause of action exists, that the case is one
of those mentioned in section 1 hereof, that
there is no other sufficient security for the
claim sought to be enforced by the action,
and that the amount due to the applicant,
or the value of the property the possession
of which he is entitled to recover, is as
much as the sum for which the order is
granted above all legal counterclaims. The
affidavit, and the bond required by the next
succeeding section, must be duly filed with
the court before the order issues.
So Sec. 3 requisites for affidavit and bond. These
are two of the impt requisites for the issuance of
preliminary attachment, affidavit and bond. Of
course, the affidavit must contain those grounds
mentioned in Sec. 1 kay mag. Unsamanangimong
affidavit, mag unsamanangimong bond kung
wala tong grounds under Sec. 1 . So what are the
requisites there for the issuance of the writ of
attachment?
1. The case must fall on those grounds
where preliminary attachment is proper;
2. The applicant must file a motion, the
court cannot grant the writ motuproprio,
there must be a motion,
3. The applicant must show by affidavit that
there is now sufficient evidence for the
claim sought to be enforced. In other
words, kunikaw for example bangko, if
there is collateral then preliminary
attachment, has no ground, because
preliminary attachment would only be
asked if there is no security for your
claim. So in your complaint, in your
prayer for preliminary attachment, it
must be alleged that there is no security
for the claim, and that maopud to any of
those grounds where the defendant is
attempting to go abroad, with intent to
defraud his creditors etc.
Now, mere insolvency cannot be a ground.
Sec 3., another is the applicant must post a bond,
executed to the adverse party.
Gitawagnasiyaugattachment bond.
Sec. 4.Condition of applicant's bond.
The party applying for the order must
thereafter give a bond executed to the
adverse party in the amount fixed by the
court in its order granting the issuance of
the writ, conditioned that the latter will pay
all the costs which may be adjudged to the
adverse party and all damages which he
may sustain by reason of the attachment, if
the court shall finally adjudged that hte
applicant was not entitled there to.
Sec. 4, this is the requirement for application of
bond.
So timan.an judnaninyo, nawagani bond, ah
diligyudnai.issue and preliminary attachment.
Nganudili man issuehanug preliminary
attachment? Kay wala may pasaligngakungdunay
damage unya, maoy mu-answer sa damage.
Because that is the purpose of the
bond.Leksiyonninyo, kana ganingdatu, there
must be security to pay for the damage,
dunagani damage mu.answerdayun. Wagani
bond, way preliminary attachment kay way
security. “paradilinangnabiktimaug hit and run”
(wa kayo maklarosaakong record, sori,
murag joke nihehehe)
Sec. 5.Manner of attaching property.
The sheriff enforcing the writ shall without
delay and with all reasonable diligence
attach, to await judgment and execution in
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the action, only so much of the property in
the Philippines of the party against whom
the writ is issued, not exempt from
execution, as may be sufficient to satisfy
the applicant's demand, unless the former
makes a deposit with the court from which
the writ is issued, or gives a counterbond
executed to the applicant, in an amount
equal to the bond fixed by the court in the
order of attachment or to the value of the
property to be attached, exclusive of costs.
No levy on attachment pursuant to the writ
issued under section 2 hereof shall be
enforced unless it is preceded, or
contemporaneously accompanied, by
service of summons, together with a copy
of the complaint, the application for
attachment, the applicant's affidavit and
bond, and the order and writ of attachment,
on the defendant within the Philippines.
The requirement of prior or
contemporaneous service of summons shall
not apply where the summons could not be
served personally or by substituted service
despite diligent efforts, or the defendant is
a resident of the Philippines temporarily
absent therefrom, or the defendant is a
non-resident of the Philippines, or the
action is one in rem or quasi in rem.
Sheriff shall attach the property so much of what
will answer the claim of the defendant. Unless
the former shall make a deposit from which the
writ is issued. So in other words, the defendant
can pre-empt the attachment by making a
deposit in court, that’s one, so di ka gusto ma
attach imongawto, okey you make a deposit in
court. OR another way is to put up a COUNTER-
BOND. If the bond posted by the applicant, if the
purpose of the bond put up by the applicant is to
answer for damages, that the defendant may
suffer by reason of preliminary attachment, the
counter bond of the defendant the purpose of
which is to answer for the claim, of the plaintiff.
How much is the amount of the counter bond?
The same, the same amount.
No levy on attachment pursuant to the writ
issued under section 2 hereof shall be enforced
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
unless it is preceded, or contemporaneously
accompanied, by service of summons, together
with a copy of the complaint, the application for
attachment, the applicant's affidavit and bond,
and the order and writ of attachment, on the
defendant within the Philippines. So this is in
pursuant nisa “Mangila ruling”
Okay, so exception ni, “The requirement of
prior or contemporaneous service of
summons shall not apply where the
summons could not be served personally or
by substituted service despite diligent
efforts, or the defendant is a resident of
the Philippines temporarily absent
therefrom, or the defendant is a non-
resident of the Philippines, or the action is
one in rem or quasi in rem”.So inyong
timan.an nai-exempt ang contemporary service
of summons, in those instances where summons
by publication could be had. Dibakaningmga
instances dirimaomaniangmga instances where
summons by publication could be availed of?
Peroayawnininyoi.directa, inyogyudningi-
enumerate unya.
Then after the service of the writ of preliminary
attachment, the sheriff now should make a
report, or return of the service. So look at Sec. 7,
these are the manners of attaching real/personal
property. At least the procedures here are more
or less the same with levy on execution,diba
weon discussed in rule 38, more or less the
same. Such as with regards to real property, the
preliminary attachment maybe made by leaving
a copy of the order together with the desription
(di klarosaaudio ) of the property attached
and a notice that it is attached to the office of the
Register of Deeds.
Sec. 7.Attachment of real and personal
property; recording thereof.
Real and personal property shall be
attached by the sheriff executing the writ in
the following manner:
(a) Real property, or growing crops thereon,
or any interest therein, standing uponthe
record of the registry of deed of the
province in the name of the party against
whom attachment is issued, or not
appearing at all upon such records, or
belonging to the party against whom
attachment is issued and held by any other
person, or standing on the records of the
registry of deeds in the name of any other
person, by filing with the registry of deeds
a copy of the order, together with a
description of the property attached, and a
notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached, and by leaving a copy of such
order, description, and notice with the
occupant of the property, if any, or with
such other person or his agent if found
within the province. Where the property
has been brought under the operation of
either the Land Registration Act or the
Property Registration Decree, the notice
shall contain a reference to the number of
the certificate of title, the volume and page
in the registration book where the
certificate is registered, and the registered
owner or owners thereof.
The registrar of deed must index
attachments filed under this section in the
names of the applicant, the adverse party,
or the person by whom the property is held
or in whose name it stands in the records. If
the attachment is not claimed on the entire
area of the land covered by the certificate
of title, a description sufficiently accurate
for the identification of the land or interest
to be affected shall be included in the
registration of such attachment;
(b) Personal property capable of manual
delivery, by taking and safely keeping it in
his custody, after issuing the corresponding
receipt therefor;
(c) Stocks or shares, or an interest in stocks
or shares, of any corporation or company,
by leaving with the president or managing
agent thereof, a copy of the writ, and a
notice stating that the stock or interest of
the party against whom the attachment is
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issued is attached in pursuance of such
writ;
(d) Debts and credits, including bank
deposits, financial interest, royalties,
commissions, and other personal property
not capable of manual delivery, by leaving
with the person owing such debts, or
having in his possession or under his
control, such credits or other personal
property, or with his agent, a copy of the
writ, and notice that the debts owing by
him to the party against whom attachment
is issued, and the credits and other
personal property in his possession, or
under his control, belonging to said party,
are attached in pursuance of such writ;
(e) The interest of the party whom
attachment is issued in property belonging
to the estate of the decedent, wether as
heir, legatee, or devisee, by serving the
executor or administrator or other personal
representative of the decedent with a copy
of the writ and notice that said interest is
attached. A copy of said writ of attachment
and of said notice shall also be filed in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
If the property sought to be attached is in
custodialegis, a copy of the writ of
attachment shall be filed with the proper
court or quasi-judicial agency, and notice of
the attachment served upon the custodian
of such property.
Then what about personal property? Personal
property capable of manual delivery by simply
taking and keeping it in his custody. Oh dad.an
ugdekargadidto, or stocks or shares or interest in
stocks by giving a copy of the writ to the
President or the managing agent.
Then what about debts, credits including bank
deposits, the same. Kaning C ug D transferred, or such debts are paid, to the
maonigitawagug garnishment. Then what about
letter e, what if the defendant has an interest to
the property belonging to the estate of the
deceased? Naasiyay claim sa estate saiyang
papa, now the notice of the writ or the copy of
the writ shall be served upon the executor, and if
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the properties would be divided among the heirs,
whenever there would be distribution of the
properties, then the property attached shall be
ordered delivered to the sheriff, subject to the
claim of the heir or the legatee.
Can a property in custodial legis in another case
could still be subjected to preliminary
attachment? >>> Look at the last paragraph “If
the property sought to be attached is in
custodialegis, a copy of the writ of
attachment shall be filed with the proper
court or quasi-judicial agency, and notice of
the attachment served upon the custodian
of such property”.
So in other words, even if the property is already
in custodial egis in another case, or in another
court, the same could still be subjected to
preliminary attachment.
Look at Sec. 8, in case of garnishment there
could be forced novation. Parehorapudsa levy on
execution, katong bank deposits, credits there
could be a forced novation.
Nahinumdummoatong NOVATION? Meaning the
debtor of the defendant, the defendant would be
replaced by the plaintiff. So there would be
FORCED NOVATION.
Sec. 8.Effect of attachment of debts, credits
and all other similar personal property.
All persons having in their possession or
under their control any credits or other
similar personal property belonging to the
party against whom attachment is issued,
or owing any debts to him, at the time of
service upon them of the copy of the writ of
attachment and notice as provided in the
last preceding section, shall be liable to the
applicant for the amount of such credits,
debts or other similar personal property,
until the attachment is discharged, or any
judgment recovered by him is satisfied,
unless such property is delivered or
clerk, sheriff, or other proper officer of the
court issuing the attachment.
Now, look at Sec 9.
Sec. 9.Effect of attachment of interest in
property belonging to the estate of a
decedent.
The attachment of the interest of an heir,
legatee, or devisee in the property
belonging to the estate of a decedent shall
not impair the power of the executor,
administrator, or other personal
representative of the decedent over such
property for the purpose of administration.
Such personal representative, however,
shall report the attachment to the court
when any petition for distribution is filed,
and in the order made upon such petition,
distribution may be awarded to such heir,
legatee, or devisee, but the property
attached shall be ordered delivered to the
sheriff making the levy, subject to the claim
of such heir, legatee, or devisee, or any
person claiming under him.
Now, the attachment cannot prevent the
distribution of the property, such personal
representative shall report the attachment to the
court when any of the petition for distribution is
filedand the order be made on such petition. The
distribution maybe awarded to such heir, legatee
or devisee but the property attached shall be
delivered to the sheriff for the levy subject to the
claims of such heir, legatee etc.
Then Sec. 10
Sec. 10.Examination of party whose
property is attached and persons indebted
to him or controlling his property; delivery
of property to sheriff.
Any person owing debts to the party whose
property is attached or having in his
possession or under his control any credit
or other personal property belonging to
such party, may be required to attend
before the court in which the action is
pending, or before a commissioner
appointed by the court, and be examine on
oath respecting the same. The party whose
property is attached may also be required
to attend for the purpose of giving
information respecting his property, and
may be examined on oath. The court may,
after such examination, order personal
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property capable of manual delivery
belonging to him, in the possession of the
person so required to attend before the
court, to be delivered to the clerk of the
court or sheriff on such terms as may be
just, having reference to any lien thereon
or claim against the same, to await the
judgment in the action.
Kung way Makita na property sa sheriff, kay
gitago.an, those persons whom the plaintiff or
the sheriff believe having custody of the property
of the defendant maybe examined. So, if “Any
person owing debts to the party whose
property is attached or having in his
possession or under his control any credit
or other personal property belonging to
such party, may be required to attend
before the court in which the action is
pending, or before a commissioner
appointed by the court, and be examine on
oath respecting the same”.
So parehoraniatongsa execution, “The court
may, after such examination, order
personal property capable of manual
delivery belonging to him, in the
possession of the person so required to
attend before the court”>>>kay mu attempt
laginaugtago, tago-an judlagena. So the person
keeping the property maybe subjected to
examination.
Sec. 11. When attached property may be
sold after levy on attachment and before
entry of judgment.
Whenever it shall be made to appear to the
court in which the action is pending, upon
hearing with notice to both parties, that the
party attached is perishable, or that the
interests of all the parties to the action will
be will be subserved by the sale thereof,
the court may order such property to be
sold at public auction in such manner as it
may direct, and the proceeds of such sale
to be deposited in court to abide the
judgment in the action.
Then, Sec 11 “When attached property may be
sold after levy on attachment and before entry of
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
judgment” For example those property which are
perishable, example iyangmga property sa
debtor kaykanangmgabugas,
kaynanindasilaugbugas, unyaunsaonmananimo,
madautmana kung madugay. So such property
attached being perishable maybe sold at public
auction and the proceeds shall be deposited in
court.
Sec. 12. Discharge of attachment upon
giving counterbond.
After a writ of attachment has been
enforced, the party whose property has
been attached, or the person appearing on
his behalf, may move for the discharge of
the attachment wholly or in part on the
security given. The court shall, after due
notice and hearing, order the discharge of
the attachment if the movant makes a cash
deposit, or files a counter-bond executed to
the attaching party with the clerk of the
court where the application is made, in an
amount equal to that fixed by the court in
the order of attachment, exclusive of costs.
But if the attachment is sought to be
discharged with respect to a particular
property, the counter-bond shall be equal
to the value of that property as determined
by the court. In either case, the cash
deposit or the counter-bond shall secure
the payment of any judgment that the
attaching party may recover in the action. A
notice of the deposit shall forth with be
served on the attaching party. Upon the
discharge of an attachment in accordance
with the provisions of this section, the
property attached, or the proceeds of any
sale thereof, shall be delivered to the party
making the deposit or giving the counter-
bond, or to the person appearing on his
behalf, the deposit or counter-bond
aforesaid standing in place of the property
so released. Should such counter-bond for
any reason to be found to be or become
insufficient, and the party furnishing the
same fail to file an additional counter-bond,
the attaching party may apply for a new
order of attachment.
Then Section 12, discharge of property upon
giving of counterbond, we discussed earlier that
the order granting the preliminary attachment,
can be issued ex parte. But an order lifting or
discharging an order granting preliminary
attachment, cannot be issued ex parte; there
must be a notice and a hearing. Now,
anus.amanisiyamahitabo, for example, the court
issued preliminary attachment, the defendant
however questioned the propriety of the issuance
of the same, because he said none of the
grounds mentioned in Sec 1 Rule 57 is present.
So therefore he argued that the issuance were
improper, so he is now filing a motion to lift or
discharge the writ of attachment, such motion
must be set for hearing. And the order of the
court discharging or lifting the order granting the
issuance of preliminary attachment, the same
can only be set aside after hearing. The
absence of any of the grounds for the
issuance of preliminary attachment is just
one of the grounds.
Another way of discharging is the putting up of
counterbond by the defendant. So there are
about five (5) grounds for the lifting of
preliminary attachment.
1. When the debtor has posted the
counterbond or has made a cash
deposit, kadtongmubuhatsiyaug
deposit.
2. When the attachment is improperly
or irregularly issued
3. That the attachment is excessive,
but the discharge shall be limited to
the excess under Sec 13
4. That the property attached is
exempt from execution
5. That the judgment was made
against the attaching creditor
So putting up a counterbond is just one of the
reasons for the discharge of the preliminary
attachment.
Sec. 13. Discharge of attachment on other
grounds.
The party whose property has been ordered
attached may file a motion with the court in
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which the action is pending, before or after
levy or even after the release of the
attached property, for an order to set aside
or discharged the attachment on the
ground that the same was improperly or
irregularly issued or enforced, or that the
bond is insufficient. If the attachment is
excessive, the discharge shall be limited to
the excess. If the motion be made on
affidavits on the part of the movant but not
otherwise, the attaching party may oppose
the motion by counter-affidavits or other
evidence in addition to that on which the
attachment was made. After due notice and
hearing, the court shall order the setting
aside or the corresponding discharge of the
attachment if it appears that it was
improperly or irregularly issued or
enforced, or that the bond is insufficient, or
that the attachment is excessive, and the
defect is not cured forthwith.
So Section 13, other grounds, such as improper
issuance of the writ of attachment, that the
attachment is excessive. So that is Sec. 13, other
grounds for the discharge.
Sec. 14.Proceedings where property
claimed by third person.
If the property attached is claimed by any
person other than the party against whom
attachment had been issued or his agent,
and such person makes an affidavit of his
title thereto, or right to the possession
thereof, stating the grounds of such right
or title, and serves such affidavit upon the
sheriff while the latter has possession of
the attached party, and a copy thereof upon
the attaching party, the sheriff shall not be
bound to keep the property under
attachment, unless the attaching party or
his agent, on demand of the sheriff, shall
file a bond approved by the court to
indemnify the third-party claimant in a sum
not less than the value of the property
levied upon. In case of disagreement as to
such value, the same shall be decided by
the court issuing the writ of attachment. No
claim for damages for the taking or keeping
of the property may be enforced against
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the bond unless the action therefor is filed
within one hundred twenty (120) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages
for the taking or keeping of such property,
to any such third-party claimant, if such
bond shall be filed. Nothing herein
contained such prevent such claimant or
any third person from vindicating his claim
to the property, or prevent the attaching
party from claiming damages against a
third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a
separate action.
When the writ of attachment is issued in
favor of the Republic of the Philippines, or
any officer duly representing it, the filing of
such bond shall not be required, and in
case the sheriff is sued for damages as a
result of the attachment, he shall be
represented by the Solicitor General, and if
held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of the funds to be
appropriated for the purpose.
Sec. 14, this are now the grounds where the
property attached is claimed by another person.
Nahinumdum mu sa execution, unsay buhaton
kung and property i-levy unyadilidiayiyahasa
debtor, unsay buhatonsa third party claimant,
unsa toy iyangbuhaton? He has to execute, an
affidavit, unsa toy ngansa affidavit, >>>
TERCERIA. What other remedy could he take,
aside from executing an affidavit, he can file a
separate action or a separate case for the
vindication of his ownership or title. And in that
action he can ask for temporary remedies such
as preliminary injuction to hold the auction sale.
Or he can ask the court itself, to determine
whether the sheriff has exceeded his powers in
attaching or making levy on execution.
Now the same remedies are available in Sec 14.
So when it happens that the property attached is
claimed by a stranger, meaning, not by the
debtor under Sec 14, that person can prevent the
preliminary attachment by executing an affidavit
of his title, or right of possession over the
property. After the person executes an affidavit,
the sheriff will not be obliged to keep the
property because somebody is claiming
ownership , claiming to be the true owner of the
property unless the plaintiff will put up a bond.
Under Sec 14, the same, the person claiming to
be the true owner, of the property subjected to
preliminary attachment, can file a separate
action to vindicate his right. Unsamaning
separate action, it could be recovery of
ownership or possession or napaylain, he could
file intervention because he has interest over the
property attached, he can file motion for
intervention. So that he could litigate his interest
over the property.
Why is it that motion in intervention is now
available, why is it that motion for intervention is
not available in Rule 39? Because in Rule 39,
execution of judgment, this presupposes that the
decision has become final and executory.
Intervention is available only before entry of final
judgment or before the decision has become final
and executory . So that is why here, when the
property attached is subjected to a third party
claim, such third person can file a motion for
intervention, that is another remedy. Unyahe may
file another action to vindicate his right to
enforce his right over the property. Such that he
can ask the court where the case is pending for
the issuance of preliminary injunction.
Question, can that be considered as interference
of the order or proceeding in another court? Now
according to the SC, the answer is NO, because
the Rules of Court itself provides for such remedy.
Then, another, if ever the court may determine
that, that property belongs to the third person
therefore, there is no such basis for the
preliminary attachment because it does not
belong to the debtor. Then what about the
plaintiff, katongsa third person man to, unsa man
say remedy sa plaintiff? Now the plaintiff can file
damages against this person, this third person if
his claim is found to be frivolous, baseless. Asa
man siya mu file saiyang action for damages, he
can file a motion on the same action. Or he can
file damages in another action in another court.
Now in the last paragraph, “When the writ of
attachment is issued in favor of the
Republic of the Philippines, or any officer
Page | 180

duly representing it, the filing of such bond
shall not be required, and in case the
sheriff is sued for damages as a result of
the attachment, he shall be represented by
the Solicitor General, and if held liable
therefor, the actual damages adjudged by
the court shall be paid by the National
Treasurer out of the funds to be
appropriated for the purpose”.
Sec. 15. Satisfaction of judgment out of
property attached; return of sheriff.
If judgment be recovered by the attaching
party and execution issue thereon, the
sheriff may cause the judgment to be
satisfied out of the property attached, if it
be sufficient for that purpose in the
following manner:
(a) By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment;
(b) If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff's hands, or in those of the clerk of
the court;
(c) By collecting from all persons having in
their possession credits belonging to the
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such credits
and debts as determine by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over
to the judgment obligee.
The sheriff shall forthwith make a return in
writing to the court of his proceedings
under this section and furnish the parties
with copies thereof.
So after the proceedings of the case is
terminated, the property attached shall be used
to satisfy the judgment. And the excess shall be
returned to the debtor, the judgment recovered
by the attaching obligee and the execution
issued thereon may cause the judgment to be
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
satisfied, sufficient for the purpose in the
following manner.
Sec. 16. Balance due collected upon an
execution; excess delivered to judgment
obligor.
After realizing upon all the property
attached, including the proceed of any
debts or credits collected, and applying the
proceeds to the satisfaction of the
judgment, less the expenses of proceedings
upon the judgment, any balance shall
remain due, the sheriff must proceed to
collect such balance as upon ordinary
execution. Whenever the judgment shall
have been paid, the sheriff, upon
reasonable demand, must return to the
judgment obligor the attached property
remaining in his hands, and any proceeds of
the sale of the property attached not
applied to the judgment.
The balance shall be returned to the debtor. The
surplus returned.
Sec. 17.Recovery upon the counter-bond.
When the judgment has become executory,
the surety or sureties on any counter-bond
given pursuant to the provisions of this
Rule to secure the payment of the judgment
shall become charged on such counter-bond
and bound to pay the judgment obligee
upon demand the amount due under the
judgment, which amount may be recovered
from such surety or sureties after notice
and summary hearing in the same action.
For example the writ of attachment was lifted
because of the counter bond of the defendant,
and the judgment was not satisfied, the plaintiff
can run after the counter bond.Meaning if the
writ of execution has been returned unsatisfied
then the liability of the counter bond
automatically arises.
Remember when preliminary attachment is
issued, unsa toy buhatonsa defendant, if he does
not want his property attached? He will put up a
cash deposit or put up a counterbond. Now Sec
18, this is the cash deposit. (gi read raniya the
provisions below)
Sec. 18. Disposition of money deposited.
Where the party against whom attachment
had been issued has deposited money
instead of giving counter-bond, it shall be
applied under the direction of the court to
the satisfaction of any judgment rendered
in favor of the attaching party, and after
satisfying the judgment the balance shall
be rendered to the depositor or his
assignee. If the judgment is in favor of the
party against whom attachment was issued,
the whole sum deposited must be refunded
to him or his assignee.
Sec. 19.Disposition of attached property
where judgment is for party against whom
attachment was issued.
If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sheriff, under the order of attachment, and
all property attached remaining in any such
officer's hands, shall be delivered to the
party against whom attachment was issued,
and the order of attachment discharged.
Now this is another reason for the discharge of
the attachment, when the judgment is rendered
against the plaintiff. Pwedeang plaintiff, okey.
Meaning the case is dismissed, of course the
preliminary attachment is also lifted or discharge.
Sec. 20. Claim for damages on account of
improper, irregular or excessive
attachment.
An application for damages on account of
improper, irregular or excessive attachment
must be filed before the trial or before the
trial or before appeal is perfected or before
the judgment becomes executory, with due
notice to the attaching party and his surety
or sureties, setting forth the facts showing
his right to damages and the amount
thereof. Such damages may be awarded
only after proper hearing and shall be
included in the judgment on the main case.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he must claim
damages sustained during the pendency of
Page | 181

the appeal by filing an application in the
appellate court, with notice to the party in
whose favor the attachment was issued or
his surety or sureties, before the judgment
of the appellate court becomes executory.
The appellate court may allow the
application to be heard and decided by the
trial court.
Nothing herein contained shall prevent the
party against whom the attachment was
issued from recovering in the same action
the damages awarded to him from any
property of the attaching party not exempt
from execution should the bond or deposit
given by the latter be insufficient or fail to
fully satisfy the award.
Now, this refers to the damages, put up by the
plaintiff. Unsa toy rasunnganupa.put-upon ang
plaintiff ug bond?To answer for damages. Now,
take note that the plaintiff could be held liable for
damages even if he won the case. Nganu man,
nganupabayrun man siyaug damages
bisansiyanakadaug? Because if the issuance of
preliminary attachment, even if he won the case
but it is found later on that the preliminary
attachment is improperly issued, since its
improperly issued, the property was also deemed
improper and so the defendant can ask for
damages for the plaintiff based on his bond for
the improper issuance of the preliminary
attachment that is under Sec. 20.
Then you might ask, where should the defendant
file his claim for damages? He could file it in the
same court before rendition of judgment because
the judgment of the damages should be included
in the decision or if it is already on appeal, then
the order of appeal of preliminary attachment
was reversed, then he could file for damages
before the appellate court. So he can file his
claim before the trial court, if the order of
preliminary attachment is found to be improperly
issued, if it was already in the appellate court
that the writ of attachment was reversed, then
he can claim for damages before the appellate
court. If the bond would be insufficient then he
could run after the property of the plaintiff and
other properties of the plaintiff.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
December 9, 2012 1st part (0 – 55:15:00)
RULE 58
PRELIMINARY INJUNCTION (PI)
Section1.Preliminary injunction defined;
classes.
A preliminary injunction is an order
granted at any stage of an action or
proceeding prior to the judgment or
final order, requiring a party or a
court, agency or a person to refrain
from a particular act or acts. It may
also require the performance of a
particular act or acts, in which case
it shall be known as a preliminary
mandatory injunction.
Preliminary injunction is an order …xx Or
to require the performance of a particular act or
acts, in which case it shall be known as
preliminary mandatory injunction.
There are two kinds of preliminary
injunction:
1. Preventive or Prohibitory, from the word
prohibit. Prohibitory Preliminary injunction.
By the term prohibitory, meaning the
person is ordered to not to do or to refrain from
performing a particular act.
2. Preliminary Mandatory injunction
This is an order requiring the
performance of a particular act.
***
Being a provisional remedy, that
presupposes there is a main action or main case.
The main case could be an injunction itself. The
plaintiff is praying for the issuance of the
provisional order.
Or it could be the action or the case
could be a specific performance.
Or it could either be an annulment of
judgment under Rule 47. For example, the
petitioner who is filing for a petition for
annulment of judgment can ask that pending the
termination of the petition to annul the judgment,
the petitioner can ask the court to issue a
preliminary prohibitory injunction. Meaning,
prohibiting the court not to execute the
judgment.
Another example, you are diligently
paying your monthly electrical bills and without
any reason the electric company cut off your
electrical connection. So what are you going to
do? So you may file an action for specific
performance asking the court that the electric
company be required to reconnect your electrical
connection. But since the trial of the case will
take a long time, what are you going to do? You
may ask in your complaint for specific
performance that while the case is pending the
court will issue a preliminary mandatory
injunction, mandating the electric company to
reconnect the electrical connection.
So in other words, if you want the
defendant not to do the act and you want to do it
fast coz it might be so late then you file a case
and ask for a provisional/temporary remedy while
your action is still being heard.
For example, without any valid reason
San Jose will prevent you from enrolling. Let us
suppose this is an enrolment period and
tomorrow will be the last day and you were
informed that you are barred from enrolling
without any reason. What are you going to do?
You really want to enroll in San Jose because you
love the school. Perhaps you will file an action or
case for injunction. You ask the court to enjoin
San Jose from refusing you to enroll.
But since tomorrow is the last day
otherwise even if you win the case you will not be
allowed to enroll, so you need an immediate
provisional remedy. What are you going to do?
You ask the court to issue what kind of
preliminary injunction to order the school to
accept your enrolment? So this provisional
remedy can be asked in any case wherein the
plaintiff would want the defendant either to
refrain from doing a particular act or would
require the defendant to perform a particular act.
After the case is heard, if the court
determines that you are really entitled to the
relief you asked, then the court will make the
provisional remedy of injunction permanent.
Permanent injunction. The court will order that
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the defendant will be permanently barred or
mandated from performing a particular act.
The main purpose of injunction is to
preserve the status quo by restraining action or
interference or by furnishing preventive relief.
What do you mean by maintaining the STATUS
QUO? That refers to the last actual, peaceable,
uncontested status. So if the school prevented
you from enrolling, perhaps you will file an
injunction and praying for the issuance of a
provisional remedy of preliminary injunction. And
you want to preserve the status quo, meaning
the last situation before the controversy. The last
actual, peaceable, uncontested status which
precedes the pending controversy.
Sec. 2. Who may grant preliminary
injunction.
A preliminary injunction may be
granted by the court where the
action or proceeding is pending. If
the action or proceeding is pending
in the Court of Appeals or in the
Supreme Court, it may be issued by
said court or any member thereof.
Who can grant a preliminary injunction?
A preliminary injunction may be granted by
any court in which the principal action is pending.
So you may ask can a first level court issue a
preliminary injunction? YES, if it has the
jurisdiction over the main case. As what we have
said, preliminary injunction is just an ancillary
action that presupposes that there is a main
case.
For example, in a case for forcible entry
which is cognizable by the first level court, so if
you want to enjoin the defendant from further
doing acts of trespassing then you may pray to
the court to issue a preliminary injunction to
prevent or prohibit the defendant from further
acts of trespassing. For example, you have a
parcel of land, you have a fence. Here comes
another claimant na nag tuo siya he presented
himself na siya gyud ang tag iya. Unya gi guba
niya imong koral kay matod pa niya ikaw ang
trespasser so unsa man imong buhaton? You
could file for forcible entry against that person
and because there is an immediate need to stop
him or to restrain him from destroying further
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
your fence, you can ask the court to issue a
provisional remedy, a preliminary injunction –
prohibiting the person from doing further acts of
trespassing or from destroying further your
fence. Take note that forcible entry is within the
jurisdiction of the first level court. So even the
first level court has the jurisdiction to issue a
preliminary injunction, as long as it has
jurisdiction over the main action.
If the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it
may be issued by said court or any member
thereof.
Remember that including the Supreme Court
or Court Appeals can issue a preliminary
injunction. Or even by a member thereof. Bisan
ug usa ra ka member pwede if the issuance of
the injunction is really urgent.
There are however, limitations of the issuance
of the preliminary injunction:
1. The jurisdiction of the RTC to restrain acts by
writ of injunction is limited only to those being or
about to be committed within its territorial
jurisdiction. Meaning to say, the order is only
effective within the territorial jurisdiction of the
court. For example the act or acts you want to
restrain is done outside the territory of the court,
that is outside the injunction order issued by the
court cannot be implemented or enforced in that
area.
2. Preliminary injunction cannot be issued in
Unfair Labor Practices (ULP). It has no
jurisdiction. It is the NLRC.
3. RTC cannot issue preliminary injunction against
quasi-judicial bodies such as the SSS, COMELEC,
SEC.
4. RTC cannot interfere or cannot issue
preliminary injunction to enjoin a court of
coordinate jurisdiction. For example, it cannot
issue a preliminary injunction to prohibit another
RTC from enforcing its order. Of course, duna ni
siyay mga exceptions. So General Rule, an RTC
cannot issue a PI against another RTC to enjoin
the latter court from enforcing its order because
that would be a violation of the doctrine of non-
interference. But there are exceptions –
1. When there is a Third-Party Claimant.
You have learned that. So when a writ of
execution is issued and the sheriff levied on
a property claimed by a third person, the
third party claimant can file a separate
action. That is an exception to the rule.
2. We have learned also in Rule 57, that
when a preliminary attachment is issued by
a court and when the sheriff enforce the
order and attach the property claimed by a
person who is a stranger to the action, the
third party claimant can file a separate
action to vindicate his right over the
property. And the court in which the
separate action is filed, that could be
another RTC, can issue a PI to enjoin the
sheriff from enforcing the execution or the
attachment. That is one exception of that
doctrine of non-interference.
5. RTC cannot issue PI against infrastructure
projects of the government. Only the Supreme
Court has the power to issue a PI against the
infrastructure projects of the government.
Sec. 3. Grounds for issuance of preliminary
injunction.
A preliminary injunction may be
granted when it is established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part
of such relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring the
performance of an act or acts, either for
a limited period or perpetually;
(b) That the commission, continuance or
non-performance of the act or acts
complained of during the litigation
would probably work injustice to the
applicant; or
(c) That a party, court, agency or a
person is doing, threatening, or is
attempting to do, or is procuring or
suffering to be done, some act or acts
probably in violation of the rights of the
applicant respecting the subject of the
action or proceeding, and tending to
render the judgment ineffectual.
Page | 183

What are the grounds for the issuance of
PI?
Hinumdumi na kanang PI, temporary
remedy kana. Wa pa mu daog. Wa pa gyud na full
blown trial. So kailangan mag careful ang court.
The court cannot just issue any PI. So what are
the grounds for the issuance of PI? Take note
aning Section 3 very important.
Going back to the example that we had
earlier, for example, the school prevented you
from enrolling for no reason at all. So while your
case is pending you ask for the issuance of a PI.
Look at Section 3. Does the court have the
ground to issue a PI? For example, tomorrow is
the last day of enrolment. So now you are already
filing a case and you pray that pending the
determination of the case, you want the court to
issue a provisional remedy of PI. Look at Section
3. Does the court have the ground to issue a PI?
Okay, let us look at letter (a). Are you
entitled to the relief demanded either in whole or
in part of such relief consists in restraining the
commission or continuance of the act or acts
complained of? The answer is YES.
Then would that act of the defendant work
injustice to you? YES, because you will be denied
of enrolment.
Another is that.. would that be a violation of
your right?
So if these requisites are present, then the
court will issue a PI.
So next is section 4. There are rulings in
your book wherein the Supreme Court said that
the injunction contemplates acts being
committed or about to be committed. Hence,
injunction does not lie against acts already
consummated. So nahuman na gani na ang
entire acts, there is no more ground for the
issuance of the PI. Pananglitan ron ni file ka ug
forcible entry kay dunay ni trespass sa imong
property. Gi guba imong koral. Unya nahurot
naman ug guba imong koral unsa paman ang e
restrain nimo? So consummated na. the court will
not anymore issue a PI because the act has
already been consummated. So the court will
deny the issuance of the PI and will just proceed
with the whole case.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 4, these are other requisites. This is
very important.
Sec. 4. Verified application and bond for
preliminary injunction or temporary
restraining order.
A preliminary injunction or
temporary restraining order may be
granted only when:
(a) The application in the
action or proceeding is
verified, and shows facts
entitling the applicant to the
relief demanded; and
xxx
This is one instance wherein the Rules
require that the action or the case or the
complaint should be verified. In other words, if
you pray for PI in whatever case you should have
your complaint verified. Otherwise, the court will
not grant the PI.
(b) Unless exempted by the court, the
applicant files with the court where the
action or proceeding is pending, a bond
executed to the party or person enjoined, in
an amount to be fixed by the court, to the
effect that the applicant will pay to such
party or person all damages which he may
sustain by reason of the injunction or
temporary restraining order if the court
should finally decide that the applicant was
not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary
injunction shall be issued.
Another is you put a bond, in an amount to
be fixed by the court. Timan-e na imong pugngan
ang defendant or imong manduan ang
defendant. Mura bag ang kanang pagpa hunong
nimo sa defendant sa iyang buhaton it may do
damage to the defendant. For example, gi putlan
kag kuryente unya gusto nimo ipa restore ang
kuryente ni file ka ug action for specific
performance and you pray for PI. Gusto nimo ipa
connect dayon ang kuryente. There could be
damage on the part of the company. Kay what if
duna silay grounds sa pag disconnect nimo. So
dunay damage. That’s why you are going to put
up a bond. The bond is required to answer for
any damage resulting from the issuance of the
injunction.
Is there an exception? Are there instances
wherein bond is not required? YES. Look at the
first phrase “unless exempted by the court”.
Meaning there are instances wherein the court
may exempt the posting of the bond. What
instances for example? Dili na ingon na discretion
sa court. Dapat dunay balaod na nag allow na dili
required ang bond. For example:
1. Under the Clean Air Act, a citizen suit… The
petitioner is exempted from posting bond. That is
one exception to the rule that before issuing the
provisional remedy of PI the petitioner or plaintiff
must put up bond.
Aside from a bond, another requisite is
that…
(c) When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint
or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled only
after notice to and in the presence of the
adverse party or the person to be enjoined.
In any event, such notice shall be preceded,
or contemporaneously accompanied, by
service of summons, together with a copy
of the complaint or initiatory pleading and
the applicant’s affidavit and bond, upon the
adverse party in the Philippines.
However, where the summons could not be
served personally or by substituted service
despite diligent efforts, or the adverse
party is a resident of the Philippines
temporarily absent therefrom or is a
nonresident thereof, the requirement of
prior or contemporaneous service of
summons shall not apply.
In other words, the order for PI may be
issued ex parte but when it is served upon the
defendant the same must be preceded by or
contemporaneously accompanied by the service
Page | 184

of summons. That is similar to Preliminary
Attachment. Sa ato pa, dili nimo pwede e serve
ang order for PI without summons. The
requirement is the defendant at the time that the
order for PI is served, it is required that the
summons must have already been served upon
the defendant or it is contemporaneously served
together with the order. Otherwise, the order
would be consider invalid.
(d) The application for a temporary
restraining order shall thereafter be acted
upon only after all parties are heard in a
summary hearing which shall be conducted
within twenty-four (24) hours after the
sheriff’s return of service and/or the
records are received by the branch selected
by raffle and to which the records shall be
transmitted immediately.
Another VERY IMPORTANT REQUISITE is that
preliminary injunction cannot be issued without
NOTICE AND HEARING. There must be a
SUMMARY HEARING.
So either temporary restraining order or
preliminary injunction, general rule there must be
a summary hearing before the issuance of the
order.
What is a TRO?
TRO – that is more urgent than a preliminary
injunction. Mag una na siya sa preliminary
injunction. When the prayer for injunction is
urgent, the court may issue a TRO/temporary
restraining order in order to maintain the status
quo between or among the parties until the
determination of the prayer for a writ of
preliminary injunction. Mag una pana siya sa
preliminary injunction kanang TRO.
A TRO is an order to maintain the status quo
prior to the issuance of the preliminary injunction
when there is an urgent need to restrain
immediately the defendant.
To summarize, these are the requisites for the
issuance of PI or TRO. Naa na siya sa Sections 3
& 4. The provisions of Sections 3 & 4 are the
important requisites for the issuance of PI or TRO.
1. There must be a verified petition.
2. The applicant must establish that he has a
right to relief or a right to be protected and that
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the act against which injunction is sought
violates such right.
3. The applicant must establish that there is a
need to restrain the commission or continuance
of the act complained of, and if not enjoined, will
work injustice to him.
4. Injunction bond – A bond must be posted,
unless otherwise exempted by court.
5. The threatened injury or damage must be
incapable of pecuniary estimation.
***
In some instances, the Supreme Court
issues a Status Quo Order. Kaning Status quo
order pareho rani ug epekto sa TRO pero duna
gyud ni siyay mga kalainan. In some cases filed
before the Supreme Court… In cases when the
Supreme Court has original exclusive jurisdiction,
sometimes the Supreme Court will issue the so-
called States quo order, DILI TRO, pero iyang
epekto murag TRO.
What is the difference between a Status
quo order and TRO? (Asked in the bar!
Hala!)
1. In Status quo order, none of the parties is
asking or praying for it. In TRO, one of the parties
is asking or praying for the issuance of it.
2. In Status quo order, the basis is equitable
grounds. In TRO, the basis is the provisions of the
Rules of Court.
3. A Status quo order is more of a cease-desist
order. It does not direct the doing or un-doing of
an act. Whereas in TRO, it directs the doing or
un-doing of an act.
4. The Status quo order, the Supreme Court does
not require posting of a bond. Whereas in TRO, as
a general rule, bond is required, unless exempted
by the court.
Sec. 5. Preliminary injunction not granted
without notice; exception.
No preliminary injunction shall be
granted without hearing and prior notice
to the party or person sought to be
enjoined. If it shall appear from facts
shown by affidavits or by the verified
application that great or irreparable
injury would result to the applicant
before the matter can be heard on
notice, the court to which the application
for preliminary injunction was made, may
issue ex parte a temporary restraining
order to be effective only for a period of
twenty (20) days from service on the
party or person sought to be enjoined,
except as herein provided. Within the
said twenty-day period, the court must
order said party or person to show
cause, at a specified time and place, why
the injunction should not be granted,
determine within the same period
whether or not the preliminary injunction
shall be granted, and accordingly issue
the corresponding order.
However, and subject to the provisions of
the preceding sections, if the matter is of
extreme urgency and the applicant will
suffer grave injustice and irreparable
injury, the executive judge of a multiple-
sala court or the presiding judge of a
single-sala court may issue ex parte a
temporary restraining order effective for
only seventy-two (72) hours from
issuance but he shall immediately
comply with the provisions of the next
preceding section as to service of
summons and the documents to be
served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the
judge before whom the case is pending
shall conduct a summary hearing to
determine whether the temporary
restraining order shall be extended until
the application for preliminary injunction
can be heard. In no case shall the total
period of effectivity of the temporary
restraining order exceed twenty (20)
days, including the original seventy-two
hours provided herein.
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed
automatically vacated. The effectivity of
Page | 185

a temporary restraining order is not
extendible without need of any judicial
declaration to that effect and no court
shall have authority to extend or renew
the same on the same ground for which
it was issued.
However, if issued by the Court of
Appeals or a member thereof, the
temporary restraining order shall be
effective for sixty (60) days from service
on the party or person sought to be
enjoined. A restraining order issued by
the Supreme Court or a member thereof
shall be effective until further orders.
We have discussed already that no
preliminary injunction shall be granted without
hearing and prior notice to the party or person
sought to be enjoined. (JD just read the whole
Section 5).
So it is a rule that the court cannot issue a
preliminary injunction ex parte. Preliminary
injunction cannot be issued ex parte. Meaning, in
order for the issuance of PI to be valid, there
must be a prior notice and hearing.
(2nd paragraph) In exceptional cases,
wherein the plaintiff or applicant would suffer
grave or irreparable damage before the matter
can be heard on notice, the court can issue ex
parte a TRO/ temporary restraining order. But
being temporary the restraining order would last
only for 20 days. And the same cannot be
extended. The TRO/ temporary restraining order
would terminate after the lapse of 20 days even
if it is not stated in the order that would only last
in 20 days. Meaning, even if the order is silent as
to the period within which the same could be
effective.
But there are requisites before the court can
issue an ex parte TRO/ temporary
restraining order. What are these
requisites?
1. The applicant must submit affidavits or by
verified application, and in the affidavits or
application it must be shown that he would
sustain grave (codals: grave injustice) and
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
irreparable injury before the matter could be
heard.
So katong example nato ganiha katong gi
deny ka ug enrolment ugma ang last enrolment,
so ibutang na nimo sa affidavit, and you ask for
the issuance of a TRO/temporary restraining
order, do you think the court would grant you the
prayer for the issuance of a TRO/temporary
restraining order? Would you suffer grave or
irreparable injury before PI could be heard? Kung
magpaabot ba kag hearing so mahitabo na di a
gyud ka madawat. Ma close na ba ang
enrolment? So that’s why under the situation you
should ask for the issuance of a TRO/temporary
restraining order EX PARTE because there is a
tendency that you will suffer irreparable damage
if no TRO would be issue or if you wait for the
issuance of a preliminary injunction because
preliminary injunction could only be issued after
the hearing.
Within the period of 20 days, the court must
order said person to show cause why the
injunction should not be granted. So 20 days. So
pila ka adlaw ang TRO? 20 days. And within that
period of 20 days the court will have to conduct a
hearing and the defendant should show cause or
present evidence why the PI should be granted.
On the other hand, the plaintiff should also show
cause why PI should be granted.
Read (2nd paragraph). Naa raba na kwangan
kanang kang Regalado! Naay na missing diha
kanang before sa “next”.
So… “effective for only 72 hours from
issuance, but shall immediately comply
with the provisions of the next preceding
section as to service of summons and the
documents to be served therewith.”
Now, service of summons – meaning, prior
or contemporaneous service of summons. Ang
pag issue sa TRO kay ex parte. Pero ang pag
serve ana niya, it must be accompanied by or
preceded by a service of summons… sa TRO.
This paragraph (2nd paragraph) is applicable
to a multi (multiple) sala court. Kana man gung
multi sala court kana bitaw mga korte na daghan
ug branches. For example, Cebu City. Kung mu
file ka ug kaso diha, kinahanglan pana e raffle. I
think there are about 20 or 30 RTCs. Kana e raffle
na. Unya dili mana siya kada oras mag raffle.
Mag raffle na siya only once a week, I think every
Monday Civil or Criminal depende. Once a week
rana. Unya kung pananglitan mu file ka ug kaso
na Injunction, ugma na ang deadline sa
enrolment unya di deny ka enrolment kung mag
huwat pa ka ug sunod semana, wala na. so unsa
man imong buhaton ana? Unsa may buhaton sa
court ana aron dili na ma mooted imong prayer?
That’s why the executive judge, under this Rule
or provision, can issue an ex parte
TRO/temporary restraining order which is
effective within 72 hours. Kay dinalian man.
Thereafter, within the aforesaid seventy-
two (72) hours, the judge before whom the
case is pending shall conduct a summary
hearing to determine whether the
temporary restraining order shall be
extended until the application for
preliminary injunction can be heard. In no
case shall the total period of effectivity of
the temporary restraining order exceed
twenty (20) days, including the original
seventy-two hours provided herein.
The issuance of a TRO/temporary restraining
order is very urgent. So kinsa man ang mu issue
ana? It would be executive judge. Unsa man ang
buhaton within the period of 72 hours? Within the
period of 72 hours, the case has to be raffled
usually through a special raffle. Pwede manka
maka request ug special raffle. Although weekly
ang raffle, but a party can ask for a special raffle
but there must be a reason why are you asking
for a special raffle, and one of this is when you
ask for the issuance of a TRO/temporary
restraining order. So urgent gyud kaayo. And
within the period of 72 hours, the case has to be
raffled and when it is raffled to a branch, that
branch shall now determine whether there is a
need to extend the issuance of a TRO/temporary
restraining order which was issued by the
executive judge to 20 days, including the 72
hours.
General rule: TRO and PI cannot be
issued without hearing.
Page | 186

Exception: TRO can be issued ex parte if
there is grave injustice and irreparable
injury.
December 9, 2012 (Sunday)
2nd Part
Exception: TRO can be issued ex parte if
there is grave injustice and irreparable injury.
It can be issued ex parte. We are talking
of issuance. After issue, serve na. The service
shall be accompanied by service of summons or
if not, proceeded by service of summons.
Effectively of the TRO would be 20 days, but
there are, in extreme cases, instances wherein
the executive judge can issue a 72-hour-
restraining order. When the issuance of the same
is of extreme urgency. Kung maghisgot na gani ta
ug TRO kinahanglan na ang kaluha ana
irreparable injury, sa ato pa incapable of
pecuniary estimation. Di nimo ma-imagine ang
damage.
Question: What is the distinction between
preliminary injunction and temporary restraining
order?
Answer:
1. Preliminary injunction cannot be granted
without notice and hearing. Whereas, TRO may
be granted ex parte if there is a grave or
irreparable injury as shown in affidavit or verified
complaint
2. Preliminary injunction can lodge(?) longer than
20 days, whereas TRO has only a maximum
effectivity of 20 days.
Let us imagine, nig-file nimo sa kaso,
unya extreme jud ang act sa defendant. So
mangayo ka TRO. Pila effecitvity? 20 days. Within
the period of 20 days, the court shall conduct
hearing and the purpose of hearing is to
determine whether there is a need to issue a
preliminary injunction. Now, once the court
issues preliminary injunction. Kana preliminary
injunction up to the termination na nah siya sa
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
proceedings. After the proceedings, the court
now will determine whether there is a need to
make the injunction permanent or lift it.
Preliminary injunction, meaning when the
case is pending.
BPI vs. CA, June 8, 2006
The effectivity period of TRO is
inclusive of non-working days. Apil ang non-
working days. A working day is only
excluded when the last day of TRO falls on
a non-working day. In which case, the TRO
is still valid on the next working day.
However, dunay kaso, wherein the trial court
issued a TRO effective for 30 days (if I’m not
mistaken ingon ni JD). Unsa man mahitabo ana
na 20 days raman ta ang effectivity. Now, even if
the order states that it shall be effective for 30
days, the same shall be effective for 20 days.
So in the event that the application for
preliminary injunction is denied or not resolved
within the same period, the tro is deemed
automatically vacated. The effectivity of TRO is
not extendible without need of any judicial
declaration to that effect. And no court shall
have authority to extend or renew the same
ground for which it was issued.
Hwever, if issued by the Court of Appeals or the
member thereof, the TRO shall be effective for
60 days. 60 days shall be reckoned from service
on the party or persons sought to be enjoined.
What about to the TRO issued by the Supreme
Court?
Restraining order issued by the Supreme Court
or member thereof shall be effective until further
notice. Sa ato pa hangtod pun-an. However, as to
Cybercrime Act, SC issued SC against the
imolementation. Pila ka adlaw? SC issued TRO
effective for 120 days.
In the CA, the TRO can be issued by the
members as wel as the SC.
When man ni amhitabo ang usa ka member mu-
issue? For example, ma-raffle na and uban
justices nagbakasayon. Ang usa ra present. Thus,
he can issue. Pero dunay internal rules, na
kailangan affirm ang issuance. In other words,
even a mener of CA or SC can issue a TRO.
The trial court, the Court of Appeals, the
Sandiganbayan, or the Court of Tax Appeals
that issued a writ of preliminary njuction
against a lower court, board, officer, or
quasi-judicial agency shall decide the main
case or petition within six (6) onths from
the issuance of the writ. (As amended by
A.M. No. 07-7-12-SC, December 12, 2007.)
So pananglitan mu-file ka ug certiorari, dunay
order interlocutory order na gi-issue ang lower
court, defendant files motion to dismiss on the
ground that the court does not have jurisdiction.
Motion denied. Unsay remedy niya? File aswer or
kung natuo na court na wala jud jurisdiction, file
siya petition for certiorari under Rule 65.
Unsay mahitabo if mu-file siya petition for
certiorari? Kana ra saligan? The mere filing of
petition for certiorari will not stop the
proceedings of the lower court. Why? Because
petition for certiorari is considered as an original
or separate action. So, the remedy will be
stopped, in the petition for certiorari, he should
ask for preliminary injunction. And if is very
urgent, he should ask for TRO.
Kay tungod ng TRO ug preliminary injuction are
provisional remedies raman na. That
presupposes that there is a main action.
Question: What do you mean by irreparable
injury?
Answer: Injury is considered irreparable if it is a
such constant and frequent recurrence that no
fair or reasonable regress can be had therefore in
a court of law, or if it is not susceptible of
mathematical computation or incapable of
pecuniary estimation or the damage is incapable
of pecuniary estimation.
Page | 187

Sec. 6. Grounds for objection to, or for
motion of dissolution of, injunction or
restraining order.
← The application for
injunction or restraining order may be
denied, upon a showing of its insufficiency.
The injunction or restraining order may
also be denied, or, if granted, may be
dissolved, on other grounds upon
affidavits of the party or person enjoined,
which may be opposed by the applicant
also by affidavits. It may further be denied,
or, if granted, may be dissolved, if it
appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof, as the case may be,
would cause irreparable damage to the
party or person enjoined while the
applicant can be fully compensated for
such damages as he may suffer, and the
former files a bond in an amount fixed by
the court conditioned that he will pay all
damages which the applicant may suffer
by the denial or the dissolution of the
injunction or restraining order. If it
appears that the extent of the preliminary
injunction or restraining order granted is
too great, it may be modified.
“The application for injunction or
restraining order may be denied, upon a
showing of its insufficiency.” Meaning the
complaint is insufficient.
“Other grounds” – example is bond is
insufficient or insufficiency of the bond.
After the issuance of the restraining order, the
defendant may file a verified motion to dissolve
the preliminary injunction or TRO.
Sec. 7. Service of copies of bonds; effect of
disapproval of same.
← The party filing a bond
in accordance with the provisions of this
Rule shall forthwith serve a copy of such
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
bond on the other party, who may except
to the sufficiency of the bond, or of the
surety or sureties thereon. If the
applicant’s bond is found to be insufficient
in amount, or if the surety or sureties
thereon fail to justify, and a bond sufficient
in amount with sufficient sureties
approved after justification is not filed
forthwith, the injunction shall be
dissolved. If the bond of the adverse party
is found to be insufficient in amount, or
the surety or sureties thereon fail to
justify a bond sufficient in amount with
sufficient sureties approved after
justification is not filed forthwith, the
injunction shall be granted or restored, as
the case may be.
If the counter bond is insufficient, then the
preliminary injunction shall be restored.
What is the purpose of the counter-bond?
To answer for whatever damages that the plaintiff
or applicant of the restraining order or
preliminary injunction may suffer. Because the
injunction order is lifted.
What are the reasons for the dissolution of the
injunction order or preliminary injunction?
1. The complaint is insufficient/insufficiency
of the complaint.
2. If the applicant is entitled to the
injunction or restraining order, the
issuance or continuance thereof, as the
case may be, would cause irreparable
damage to the party or person enjoined
while the applicant can be fully
compensated.
3. Where the bond posted by the applicant
turned out to be insufficient or defective.
Be sure to remember that the motion dissolve
preliminary injunction or TRO must be verified.
← applying for the appointment of a receiver
Sec. 8. Judgment to include damages
against party and sureties.
← At the trial, the
amount of damages to be awarded to
either party, upon the bond of the
adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule
57.
←
Sec. 9. When final injunction granted.
← If after the trial of the
action it appears that the applicant is
entitled to have the act or acts complained
of permanently enjoined, the court shall
grant a final injunction perpetually
restraining the party or person enjoined
from the commission or continuance of the
act or acts or confirming the preliminary
mandatory injunction.
RULE 59
RECEIVERSHIP
Receivership is different from that in Corporation
Code.
Receiver – inato na storya “caretaker” sa
property.
When this provisional remedy prayed?
Section 1. Appointment of receiver.
← Upon a verified application,
one or more receivers of the
property subject of the action or
proceeding may be appointed by the
court where the action is pending, or
by the Court of Appeals or by the
Supreme Court, or a member
thereof, in the following cases:
←
(a) When it appears from the
verified application, and such other proof
as the court may require, that the party
has an interest in the property or fund
which is the subject of the action or
proceeding, and that such property or fund
is in danger of being lost, removed, or
Page | 188

materially injured unless a receiver be
appointed to administer and preserve it;
(b) When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
being wasted or dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage
debt, or that the parties have so stipulated
in the contract of mortgage;
Receiver shall administer and preserve the
property. To prevent it from being lost, remove or
materially injured.
The applicant must have interest in the property.
The property here is subject of the case or
proceeding and the property is in danger of being
lost, removed or materially injured.
0 (b) When it appears in
an action by the mortgagee for the
foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that
its value is probably insufficient to
discharge the mortgage debt, or that the
parties have so stipulated in the contract
of mortgage;
Example, banko ka nya naay nangutang nimo. In
order to insure the payment of the loan, gi-
mortgage niya iyang balay. The bank now files
foreclosure proceeding against the debtor for
failure to pay the loan. Unsa mahitabo ana,
sagad buhaton sa debtor kung hapit na
embargohon sa banko ang property? Iya na nah
pasagda. The creditor now, in order to preserve
the property ask the court for the appointment of
receiver to administer and preserve the property.
At what stage of the proceeding that the receiver
be appointed?
In preliminary attachment, at the start of the
proceedings, upon filling of the case, pwede na
ka mangayo ug preliminary attachment, so with
preliminary injunction.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What about receivership, at what stage of the
proceeding that the applicant ask for the
appointment of receiver?
1
2 (c) After judgment, to preserve the
property during the pendency of an
appeal, or to dispose of it according to
the judgment, or to aid execution when
the execution has been returned
unsatisfied or the judgment obligor
refuses to apply his property in
satisfaction of the judgment, or otherwise
to carry the judgment into effect;
3 merely an ancillary remedy. Same as in
4 This can be applied even if judgment
has become final and executory, or in the
execution stage. Fr example, wala ka kabayad
unya decision kay pabayron ka. Unsa buhaton sa
sheriff if the defendant can’t pay? Sheripon ang
property either personal or real property.
Example, apartment owned by you. Now, the
judgment creditor should apply for the
appointment of the receiver therein in order to
preserve the property.
Kani ra RECEIVERSHIP, mao ra ni siya na
provisional remedy na pwede nimo ma-applyan
bisag tapos na ang decision. Kay most provisional
remedies could be applied while the case is
pending. But receivership could be applied even
the decision has become final and executory or
during the execution stage.
Receiver must be a disinterested person to a
case appointed by the court to receive and
preserve the property.
Receiver is also considered as officer of the court
and does not represent any of the parties.
5
6 (d) Whenever in other cases it
appears that the appointment of a receiver
is the most convenient and feasible means
of preserving, administering, or disposing
of the property in litigation. During the
pendency of an appeal, the appellate court
may allow an application for the
appointment of a receiver to be filed in
and decided by the court of origin and the
receiver appointed to be subject to the
control of said court.
Remember the residual power of the court.
Appointment of receiver is one of the residual
powers of the court. But take note of the
requirements before the court could exercise its
residual power. That is the record of the case
should not be elevated or forwarded to the higher
court.
Receivership could be either main action or
Preliminary Injunction, naay main case na
Injunction title sa case, naa pud provisional
remedy lang.
Sec. 2. Bond on appointment of receiver.
← Before issuing the order
appointing a receiver the court shall
require the applicant to file a bond
executed to the party against whom
the application is presented, in an
amount to be fixed by the court, to
the effect that the applicant will pay
such party all damages he may
sustain by reason of the
appointment of such receiver in case
the applicant shall have procured
such appointment without sufficient
cause; and the court may, in its
discretion, at any time after the
appointment, require an additional
bond as further security for such
damages.
Sagad sa provisional remedies, naay bond.
Sec. 3. Denial of application or discharge of
receiver.
← The application may be
denied, or the receiver discharged,
when the adverse party files a bond
executed to the applicant, in an
amount to be fixed by the court, to
Page | 189

the effect that such party will pay
the applicant all damages he may
suffer by reason of the acts,
omissions, or other matters
specified in the application as
ground for such appointment. The
receiver may also be discharged if it
is shown that his appointment was
obtained without sufficient cause.
The adverse party can oppose for the denial of
the receivership.
Purpose of the counter-bond: To pay or answer for
all damages the applicant may suffer from the
acts, omissions, or other matters specified in the
application as ground for such appointment.
Sec. 4. Oath and bond of receiver.
← Before entering upon his
duties, the receiver shall be sworn
to perform them faithfully, and shall
file a bond, executed to such person
and in such sum as the court may
direct, to the effect that he will
faithfully discharge his duties in the
action or proceeding and obey the
orders of the court.
← his own name; to take and keep
← The purpose of the bond of the receiver is to
assure that he would perform his duties,
faithfully and diligently, and to obey the
orders of the court.
If he fails to fulfill his duties, then his bond shall
answer for the damages.
← same; to make transfers; to pay
Sec. 5. Service of copies of bonds; effect of
disapproval of same.
← The person filing a bond in
accordance with the provisions of
this Rule shall forthwith (or
immediately) serve a copy thereof on
each interested party, who may
except to its sufficiency or of the
surety or sureties thereon. If either
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the applicant’s or the receiver’s
bond is found to be insufficient in
amount, or if the surety or sureties
thereon fail to justify, and a bond
sufficient in amount with sufficient
sureties approved after justification
is not filed forthwith, the application
shall be denied or the receiver
discharged, as the case may be. If
the bond of the adverse party is
found to be insufficient in amount or
the surety or sureties thereon fail to
justify, and a bond sufficient in
amount with sufficient sureties
approved after justification is not
filed forthwith, the receiver shall be
appointed or re-appointed, as the
case may be.
This tells us the reasons for the discharge of the
receiver.
← to be surrendered, together with all
Sec. 6. General powers of receiver.
← Subject to the control of the
court in which the action or
proceeding is pending, a receiver
shall have the power to bring and
defend, in such capacity, actions in
possession of the property in
controversy; to receive rents; to
collect debts due to himself as
receiver or to the fund, property,
estate, person, or corporation of
which he is the receiver; to
compound for and compromise the
outstanding debts; to divide the
money and other property that shall
remain among the persons legally
entitled to receive the same; and
generally to do such acts respecting
the property as the court may
authorize. However, funds in the
hands of a receiver may be invested
only by order of the court upon the
written consent of all the parties to
the action. No action may be filed by
or against a receiver without leave
of the court which appointed him.
←
Sec. 7. Liability for refusal or neglect to
deliver property to receiver.
← A person who refuses or
neglects, upon reasonable demand,
to deliver to the receiver all the
property, money, books, deeds,
notes, bills, documents and papers
within his power or control, subject
of or involved in the action or
proceeding, or in case of
disagreement, as determined and
ordered by the court, may be
punished for contempt and shall be
liable to the receiver for the money
or the value of the property and
other things so refused or neglected
damages that may have been
sustained by the party or parties
entitled thereto as a consequence of
such refusal or neglect.
←
Sec. 8. Termination of receivership;
compensation of receiver.
← Whenever the court, motu
proprio or on motion of either party,
shall determine that the necessity
for a receiver no longer exists, it
shall, after due notice to all
interested parties and hearing,
settle the accounts of the receiver,
direct the delivery of the funds and
other property in his possession to
the person adjudged to be entitled
to receive them, and order the
discharge of the receiver from
further duty as such. The court shall
allow the receiver such reasonable
compensation as the circumstances
of the case warrant, to be taxed as
costs against the defeated party, or
apportioned, as justice requires.
Page | 190

← While attachment is available even if the
Sec. 9. Judgment to include recovery
against sureties.
The amount, if any, to be
awarded to any party upon any bond filed
in accordance with the provisions of this
Rule, shall be claimed, ascertained, and
granted under the same procedure
prescribed in section 20 of Rule 57.
RULE 60
REPLEVIN
When you say Replevin, automatic this case is
only applicable to personal properties that are
capable of manual delivery. It is the recovery of
the possession of personal property.
Section 1. Application.
← A party praying for the
recovery of possession of personal
property may, at the commencement
of the action or at any time before
answer, apply for an order for the
delivery of such property to him, in
the manner hereinafter provided.
Usually pangayoon kaning mga provisional
remedies sa complaint or petition. Gawas sa
elements sa cause of action nimo, mu-allege ka
didto sa complaint ang mga elements or grounds
for the issuance of the provisional remedies na
gipangayo nimo.
Question: Unsa na mga kasoha wherein you will
ask for the immediate delivery of the personal
propery?
Answer: Sagad ana na main action Replevin pud
gihapon. Unya, kanang main action na Replevin,
kinahanglan pud nah siya ug presentation of
evidence. Dugay pa nah.
Question: How do you distinguish Replevin from
Preliminary Attachment.
Answer: 1. Replevin is available only when the
principal relief sought in the action is the
recovery of possession of personal property.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
recovery of personal property is only incidental
relief sought in the action.
2. Replevin can be sought only by the defendant
is the actual or constructive possession of the
personal property. While attachment could be
resorted to even if the personal property is in the
custody of third person.
3.In Replevin, you cannot subject a personal
property, which is already in custodia legis or in
custody of another court, it cannot be subjected
to Replevin. Whereas, in preliminary attachment,
even if the property is already under in custodia
legis could also be subjected to preliminary
attachment.
What are the requisites for the issuance of
Replevin?
Answer: Section 2.
Sec. 2. Affidavit and bond.
The applicant must show by his own
affidavit or that of some other person who
personally knows the facts:
(a) That the applicant is the owner of the
property claimed, particularly describing it,
or is entitled to the possession thereof;
For example, you are not the owner, can you
ask for for replevin? It says, the owner. BUT, in
the decision rendered by the Supreme Court,
it said that it is not necessary that the
applicant is really the owner. It is enough that
he has right to possess. Yang vs. Valdez 177
SCRA 141. SC said, the applicant need not be
the owner of the property. It is enough that he
has right to possession.
Possession vs. Ownership
You might be the owner but you are not in
possession of that property.
You might be in possession of the property,
but you are not the owner.
(b) That the property is wrongfully detained
by the adverse party, alleging the cause of
detention thereof according to the best of
his knowledge, information, and belief;
(c) That the property has not been
distrained or taken for a tax assessment or
a fine pursuant to law, or seized under a
writ of execution or preliminary
attachment, or otherwise placed under
custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
In other words, a property that is
already in custodia legis cannot
be subject of Replevin.
(d) The actual market value of the property.
The applicant must also give a bond,
executed to the adverse party in double the
value of the property as stated in the
affidavit aforementioned, for the return of
the property to the adverse party if such
return be adjudged, and for the payment to
the adverse party of such sum as he may
recover from the applicant in the action.
The bond will answer for the damages for the
adverse party will be suffering specially if the
court will adjudge that the applicant is not
entitled to the delivery of that property.
- This was asked in the BAR EXAM. Explain or
State the amount of the bond. In Attachment?
Injunction? Receiver? Replevin? ( TAKE NOTE)
Duna bay provisional remedy na walay bond?
Naa. Support pendete lite. Other remedies, bond
is required.
Section 3. Order.- Upon the filing of
such affidavit and approval of the bond,
the court shall issue an order and the
corresponding writ of replevin describing
the personal property alleged to be
wrongfully detained and requiring the
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sheriff forthwith to take such property into
his custody.
The writ of replevin. Kay posible man to
dala -dalaon. Inig kahibalo nga naay kaso i-
file, iya pud tong dalhon. Katong
refrigerator, ikarga to sa iyang sakyanan.
Dalhon to bisan asa like sa Bohol. So the
Writ of Replevin can be served anywhere in
the Philippines. That is the difference from
the writ of injunction.
As what we have learned, the writ of
injunction, can only be enforced within the
territorial jurisdiction of the court .
(Fernandez vs. International Corporate
Bank, Oct. 7, 1999).
Under the Resolution of the Supreme Court
en banc, dated January 11, 1983, providing
for the interim rules and guidelines relative
to the implementation of BP 129, a writ of
replevin like the one issued in the
present case may be served anywhere
in the Philippines. Specifically, the said
Resolution states:
“3. Writs and processes. ---
(a) Writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus
and injunction issued by a regional trial
court may be enforced in any part of the
region.
(b) All other processes, whether issued by
a regional trial court or a metropolitan trial
court, municipal trial court or municipal
circuit trial court may be served anywhere
in the Philippines, and, in the last three
cases, without a certification by the judge
of the regional trial court.”
Section 4. Duty of the sheriff.- Upon
receiving such order, the sheriff must
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
serve a copy thereof on the adverse party,
together with a copy of the application,
affidavit and bond, and must forthwith
take the property, if it be in the
possession of the adverse party, or his
agent, and retain it in his custody. If the
property or any part thereof be concealed
in a building or enclosure, the sheriff must
(publicly) demand its delivery, and if it be
not delivered, he must cause the building
or enclosure to be broken open and take
the property into his possession. After
the sheriff has taken possession of the
property as herein provided, he must
keep it in a secure place and shall be
responsible for its delivery to the
property entitled thereto upon receiving
his fees and necessary expenses for taking
and keeping the same.
After the issuance of the writ, the sheriff
shall serve the order. He will take now the
property. Pagkahuman niyag kuha sa
maong property, unsaon mana niya?
Dalhon sa ilaha? No, within five (5) days
the property taken shall be delivered to
the applicant.
Now the adverse party, can also ask the
return of the property within five (5) days
from taking. Unsaon man niya pag kuha?
Unsay iya buhaton?
Answer: He must put up a redelivery
bond and serve the copy thereof to the
applicant.
What is the purpose of the Redelivery
bond?
Answer: The purpose of the Redelivery
bond, is to answer for damages that the
plaintiff may suffer if it turns out that all
along the plaintiff is entitled the
possession of property.
Timam-i ninyo ha unsay buhaton sa
kontra.
For example, in Preliminary attachment. If
you were the defendant to whom the
preliminary attachment is issued? What is
the remedy?
Another, if you were the defendant and
preliminary injunction or TRO is ordered,
what is your remedy?
Example: You are the counsel of San Jose.
What is your remedy?
Another, in Receivership, if you were the
counsel for the defendant what is your
remedy? Assuming that the defendant
really wants the return of the property ?
Mao nay imong masteron. Kay ang
abogado di man pirme molaban sa
kihante. There are instances na pede ka
bida. Naa may usahay makontrabida ka.
Section 6. Disposition of property
by sheriff.- If within five(5) days after the
taking of the property by the sheriff, the
adverse party does not object to the
sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so
objects and the court affirms its approval
of the applicant's bond or approves a new
bond, or if the adverse party requires the
return of the property but his bond is
objected to and found insufficient and he
does not forthwith file an approved bond,
the property shall be delivered to the
applicant. If for any reason the property
is not delivered to the applicant, the
sheriff must return it to the adverse party.
Pila to kaadlaw i-deliver sa shriff inighuman
niya ug take sa property? Nya asa i-deliver?
Answer: Within five days after the taking,
the sheriff will deliver the property to the
adverse party.
Within that period of Five days, the adverse
party can also file a redelivery bond for the
return of the property.
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Aside from posting a redelivery bond,
another reason for the discharge of the writ
of replevin is if it is found that the bond is
insufficient. If the bond posted by the
applicant is insufficient, the order of the writ
of replevin shall be lifted.
Another reason that will warrant the return
of the property to the defendant: if the
sheriff for whatever reason, failed to deliver
the property to the applicant.
So timan-i na ninyo nga mga grounds for
the issuance of the writ of replevin. Wa jud
moy choice ana. Memorizon jud na. Kay ang
question ana is whether or not the court has
properly issued the writ of provisional
remedies.
For example, is the court properly issued the
writ of attachment? Unsaon man nimo pag
answer kung proper ba o dili? So tan-awon
jud nimo ang mga grunds. Memoriza jud ni
ninyo.
Example: without a preliminary hearing,
does the court properly issued the writ of
preliminary injunction? So look at the
grounds.
Timan-i pud unsay remedies sa defendant.
Importante kaayo na!
So, there are three options or alternatives
or grounds for the defendant para makuha
ug balik ang property:
← Put up a counter-bond which is double
the value of the property. If he does so, he
has the right to demand the return of the
property to him.
← Object to the sufficiency of the
replevin bond.
← If the sheriff for whatever reason, fails
to deliver the property to the applicant.
Section 7. Proceedings where property
claimed by third person.- If the property
taken is claimed by any person other than
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the party against whom the writ of Unsay buhaton nimo kung ang property gi
replevin had been issued or his agent, and claim sa third-party? If you are a stranger to
such person makes an affidavit of his title the action, unya ang imong ref gikuha kay
thereto, or right to the possession thereof, matud pa iyaha sa defendant, unsa may imo
stating the grounds therefor, and serves buhaton? So section 7 is the remedy. The
such affidavit upon the sheriff while the remedies are similar to Preliminary
latter has possession of the property attachment so with the execution.
and a copy thereof upon the applicant,
the sheriff shall not be bound to keep the Q: Suppose the property seized is claimed by
property under replevin or deliver it to the a third person. What is the remedy of the
applicant unless the applicant or his agent, third person ?
on demand of said sheriff, shall file a bond
A: The same remedy of TERCERIA, third-party
approved by the court to indemnify the
claim or, there is nothing there preventing
third-party claimant in a sum not less
him to file a correct action to litigate his
than the value of the property under
claim.
replevin as provided in section 2 hereof. In
case of disagreement as to such value, the
Aside from filing an affidavit, he can also file a
court shall determine the same. No claim
separate action or file a Motion for Damages in
for damages for the taking or keeping of
the same action.
the property may be enforced against the
bond unless the action therefor is filed
What about the applicant, what is the remedy
within one hundred twenty (120) days
against third person whose action is baseless?
from the date of filing of the bond.
Answer:
The sheriff shall not be liable for damages,
1. he can file a separate action for damages
for the taking or keeping of such property,
against that person
to any such third party claimant if such
2. or he can file a Motion in the same case, for
bond shall be filed. Nothing herein
damages against that person who put a
contained shall prevent such claimant or
baseless claim
any third person from vindicating his claim
to the property, or prevent the applicant
If the applicant really wants the redelivery of
from claiming damages against a third-
the property, wherein a third party has
party claimant who filed a frivolous or
executed an affidavit, the applicant should put
plainly spurious claim, in the same or a
A BOND!! This is another bond. To answer for
separate action.
whatever damages that the third-party
claimant would suffer.
When the writ of replevin is issued in favor
of the Republic of the Philippines, or any
If the applicant will not put up a bond, then
officer duly representing it, the filing of
the sheriff is not obliged to keep the property
such bond shall not be required, and in
and deliver it him.
case the sheriff is sued for damages as a
result of the replevin, he shall be
When the writ of replevin is issued in favor of
represented by the Solicitor General, and
the Republic of the Philippines, or any officer
if held liable therefor, the actual damages
duly representing it, the filing of such bond
adjudged by the court shall be paid by the
shall not be required, and in case the sheriff
National Treasurer out of the funds to be
is sued for damages as a result of the
appropriated for the purpose.
replevin, he shall be represented by the
Solicitor General, and if held liable therefor,
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the actual damages adjudged by the court
shall be paid by the National Treasurer out of
the funds to be appropriated for the
purpose.
Section 8. Return of papers.-The sheriff
must file the order, with his proceedings
indorsed thereon, with the court within ten
(10) days after taking the property
mentioned therein.
Section 9. Judgment - After trial of the
issues, the court shall determine who has
the right of possession to and the value of
the property and shall render judgment
in the alternative for the delivery thereof
to the party entitled to the same, or for its
value is case delivery cannot be made, and
also for such damages as either party may
prove, with costs.
Section 10. Judgment to include
recovery against sureties.-The amount, if
any, to be awarded to any party upon any
bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure as prescribed in section 20 of
Rule 57.
R U L E 61
SUPPORT PENDENTE LITE
Usually the main action of Rule 61 is
SUPPORT. For example your husband is not
anymore supporting you, iyang gi
suportaran ang katong usa kay nakig duwa
man unya ikaw sad kay nakigduwa ug lain.
Imong remedy is under this section. In the
Family Code, Husband and wife are duty
bound to support each other. If you have
children or child, they are also entitled for
support. So you will file a case for support
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
against your husband. But the problem is,
support as a main action, has to be heard.
Mag file pa jud ka ug complaint, nya ang
defendant mo file pa jud ug answer, naa pay
trial, mag present pa ug evidence, so dugay
pa kaayo. So what are you going to do since
you need immediate support, unsa may
buhaton nimo?
Answer: In your complaint for support or
action for support, you ask for a provisional
remedy for SUPPORT PENDENTE LITE.
Meaning, you ask the court while the main
action is being heard or pending, that the
defendant should give provisional support
for the plaintiff. Provisional in the sense that
the same could be stopped by the court if
found that the plaintiff is not entitled for
support or the amount should be changed.
So, that is why it is called provisional
remedy.
SECTION 1. Application.- At the
commencement of the proper action or
proceeding, or at any time prior to the
judgment or final order, a verified
application for support pendente lite may
be filed by any party stating the grounds
for the claim and the financial conditions of
both parties, and accompanied by
affidavits, depositions or other authentic
documents in support thereof.
When are you going to file your
application?
Answer: At the commencement of the
proper action or proceeding, or at any time
prior to the judgment or final order.
Proper action here is usually an action for
support. But it is not limited for support
because even if there is criminal action it
would still be applicable. An action for
support could be asked in criminal action.
For example, you are a victim of rape,
because of the incident you bare a child.
Under the Revised Penal Code, the accused
is duty bound to give support to the
offspring. So the main action here is Rape.
Another main action in Criminal action is
Robbery with rape. While the case is
pending, you may file a motion to require
the accused to support in the court. The
application should be verified. In other
words, if you included in the complaint a
motion for support pendente lite, the
complaint should be verified.
What document for example are you going
to attach in your complaint praying for an
action for support pendente lite?
1.marriage contract – to show that you are
entitled for support because you are
marriage to each other
2. birth certificate of your child to show that
he or she is really your child
Example: strict naman kaayo ron ang
hospital or LCR. Ang birth certificate sa
bata didto sa luyo pede ka mo pirma sa
acknowledgment. So kun dunay
acknowlwdgment, like kung illegitimate na
imo child then that child is entitled for
support. Dunay gamay problema kun walay
acknowledgment. Why? Because you don't
have any proof that he is really your child.
Especially when the defendant deny that he
is not your child.
Sa imong complaint for support ana dunay
duha ka kaso nga i-file. So dunay Joinder
causes of Action. What are these?
1. RECOGNITION – imo na butangan ngadto
Recognition and Support. So you ask the
court to recognize that he is your child.
2. SUPPORT
so, the title for your action would be AN
ACTION FOR RECOGNITION AND SUPPORT
WITH PRAYER FOR SUPPORT PENDENTE
LITE
Kung dunay mga ebidensya nya klaro na
kaayo nga iya jud ni anak, nya wa
gisuportahan , an action for support na lang
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i-file. Then you ask a provisional remedy of
support pendente lite.
So there must be documents as evidence.
Kasagaran ana kay affidavit.
Once there is an application for support
pendente lite, of course the defendant is
required to give comment. The comment
should be filed together with his ANSWER
or it could be incorporated with the answer
or it could be a separate document. Then,
there shall be a hearing . The order to give
support pendente lite is coupled with
Notice and Hearing. It could not be issued
ex parte, the defendant should be heard.
And should give reason why the action
should not be granted.
Usually ang mo file ug support kay kadtong
baye, ang asawa or ang laing baye nga
duna siyay anak. Pero sa Family Code, both
spouses are duty bound to give support for
each other. Pero kung laki, mauwaw man
mangayo ug support. So, mao kasagaran
baye. Kadungog ba mo nga ang laki
mangayo ug support? (Class: ang uyab daw
nga laki mangayo ug support sa baye.)
After hearing the court will now issue an
order. For example, the court finds out that
the applicant is really entitled for support,
then the court will compute the amount of
support. Because this is provisional, the
court's computation of the amount is also
temporary. What is the basis of the court to
determine the amount for support?
Answer: The court will fix the amount for
support based on the following:
1. the need of the applicant
2. the capacity of the defendant to give
support ( Judge D: for example lawyer na
siya! Class: Judge na Judge D... Nikatawa ug
kusog si judge!! Judge D: aw dako dako na
siya mabayran for support.)
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NB: Kung police ang bana sa imo client nga
nag-ask for support pangutan-a ang police
kung importante na ang iya gi-pang loan.
Kay wise baya na sila para maka evade sa
ila responsibility. Mangutang ug daghan
para inig kita sa korte sa ilang pay slip
gamay na lang ang ilang sobra sa sweldo.
Nya dili na sila ka support.
SECTION 2. Comment.- A copy of the
application and all supporting documents
shall be served upon the adverse party,
who shall have five (5) days to comment
thereon unless a different period is fixed
by the court upon his motion. The
comment shall be verified and shall be
accompanied by affidavits, depositions or
other authentic documents in support
thereof.
SECTION 3. Hearing.- After the comment is
filed, or after the expiration of the period
for its filing, the applications shall be set
for hearing not more than three (3) days
thereafter. The facts in issue shall be
proved in the same manner as is provided
for evidence on motions.
SECTION 4. Order.- The court shall
determine provisionally the pertinent
facts, and shall render such orders as
justice and equity may require, having
due regard to the probable outcome of the
case and such other circumstances as may
aid in the proper resolution of the
question involved. If the
application is granted, the court shall fix
the amount of money to be provisionally
paid or such other forms of support as
should be provided, taking into account
the necessities of the applicant and the
resources or means of the adverse party,
and the terms of payment or mode for
providing the support. If the application is
denied, the principal case shall be tried
and decided as early as possible.
SECTION 5. Enforcement of order.- If the
adverse party fails to comply with an order
granting support pendente lite, the court
shall, motu proprio or upon motion, issue
an order of execution against him,
without prejudice to his liability for
contempt.
When the person ordered to give support
pendente lite refuses or fails to do so, any
third person who furnished that support to
the applicant may, after due notice and
hearing in the same case, obtain a writ of
execution to enforce his right of
reimbursement against the person ordered
to provide such support.
Now before ka maka execute, the order to
give provisional support is merely
interlocutory . Generally you cannot execute
an interlocutory order but here the order to
give a provisional support can be executed
by the court. In fact the defendant can also
be cited for contempt and he shall be
detained until he can give support.
Q: Suppose there is a judgment for support,
not an order, and then the defendant
refuses to give support, can the defendant
be adjudged liable for contempt ?
A: NO. What is enforceable by contempt is
refusal to comply with the order pendente
lite, not judgment for support. It would seem
that the only remedy there is execution.
Under the second paragraph, if imong bana
dili ma ka give ug support nya ang nihatag
ug support si pare , so pede si pare maka
ayo ug reimbursement sa bana.
As what we have said earlier, provisional
remedy of support pendente lite is not only
exclusive in civil cases but it can also be
availed of in criminal cases. Even during the
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pendency of the case it can be objected. The
usual objection of the accused in the
criminal case is that he is presumed
innocent. Now, that argument will not
prosper because the Rules of Court provides
that the accused can be ordered to provide
support pendente lite even while the case is
pending.
Example of criminal cases of which
provisional remedy of Support Pendente Lite
could be availed of:
Rape
Rape with robbery
Seduction
Abduction
SECTION 6. Support in criminal cases.- In
criminal actions where the civil liability
includes support for the offspring as a
consequence of the crime and the civil
aspect thereof has not been waived,
reserved or instituted prior to its filing, the
accused may be ordered to provide support
pendente lite to the child born to the
offended party allegedly because of the
crime. The application therefor may be filed
successively by the offended party, her
parents, grandparents or guardian and the
State in the corresponding criminal case
during its pendency, in accordance with the
procedure established under this Rule.
SECTION 7. Restitution.- When the
judgment or final order of the court finds
that the person who has been providing
support pendente lite is not liable
therefor, it shall order the recipient
thereof to return to the former the
amounts already paid with legal interest
from the dates of actual payment,
without prejudice to the right of the
recipient to obtain reimbursement in a
separate action from the person legally
obliged to give the support. Should the
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recipient fail to reimburse said amounts,
the person who provided the same may
likewise seek reimbursement thereof in a
separate action from the person legally
obliged to give such support.
Take note of these provisional remedies.
These are very useful if you are the counsel
of the plaintiff. Usually ang mga plaintiffs
man ang mangayo ani. Labi na ang support.
Kung naay kaso nga support, aw pede ka
mo-apply ug provisional support while
waiting for the outcome of the case. Unsa
may mahitabo kung kinahanglanon na jud
kaayo ug support? Di ka-eskwela ang bata.
Kung kinahanglan na jud kaayo then you
pray for the provisional support pendente
lite.
Those are the conditional remedies. So let us
go now to Special Civil Action.
Why are they called Special Civil Actions?
Answer: They are not only governed by the
Ordinary Civil Actions but there are also
special rules applicable only to these
actions. Mura ganig bata nga paborito jud
kaayo nimo. Kung tulo imo anak nya tagaan
nimo ug karsones ang duha nya ang usa
gipakapinan nimo ug sinina kay paborito
man nimo. Mao ra pud na siya sa Special
Civil Actions. Governed pa siya sa Ordinary
Rules of Civil Actions nya duna pa jud siyay
kaugalingong special rules applicable only to
such special civil actions.
Now what are these Special Civil Actions?
Answer:
1. Interpleader
2. Expropriation
3. Foreclosure of Real Estate Mortgage
4. Partition
5. Forcible Entry/ Unlawful Detainer
6. Certiorari, Prohibition and Mandamus
7. Quo warranto
8. Contempt
9. Declaratory Releif
These Special Civil Actions are filed in the
First Level and there are also actions that
can be filed in the higher level. Another,
there are special civil actions that can be
commenced by means of a complaint and
other Special Civil actions that can be
commenced by a Petition.
What are these Special Civil Actions that can
be commenced by means of a Complaint?
Answer:
1. Ejectment- You will not file in the court a
Petition for Ejectment but Complaint for
Ejectment. Pero pareho ra gud na gud. Title
ray diperensya. Pero mas mogamit jud ta ug
appropriate term kana ang Complaint for
Ejectment.
2. Expropriation
3. Foreclosure of Real Estate Mortgage
4. Partition
The rest are filed thru a Petition.
Regarding the venue, they are governed by
the general rule except if there are special
rule or rules on venue for Special Civil
Actions like Quo Warranto. Quo Warranto has
special Rule on Venue.
So Let's Go now to the First Special Civil
Action.
Rule 62
INTERPLEADER
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What do you mean by an interpleader?
Section 1. When interpleader proper.—
Whenever conflicting claims upon the same
subject matter are or may be made against
a person who claims no interest whatever
in the subject matter, or an interest which
in whole or in part is not disputed by the
claimants, he may bring an action against
the conflicting claimants to compel them to
interplead and litigate their several claims
among themselves.
In the case of Interpleader, it is presumed
nga aduna kay gikuptan nga butang or
funds. And this matter or property or facts
have several claimants. And now the
person who possess the property is
confused to whom he will deliver the
property.
For example, nag-abang ka ug apartment.
Namatay man ang tag-iya kay naanod sa
bagyo nga Pablo. Here comes now the
children nga nag-iya iya ug angkon sa rent
or abang. Permiro si A ang niadto ngadto.
Nanukot sa imo abang. Nag duha-duha kag
hatag kay daghan man sila ka -igsuon.
Sunod si B, ni-ingon nga ayaw ihatag ni A
kay adik na siya. Nya karon si C nasad ang
nidu-ol. Sunod si D nasad. So what are you
going to do since there are a lot of several
claimants? Your remedy is to file an action
for interpleader. You let them litigate their
case. Hala pag-away sa mo dira. Resolbaha
sa na inyong claims diha.
Another example. In case of pieces of
jewelries nga nalabay sa dumpsite
inadvertently. Tinuod ni nga nahitabo. Nang
limpyo kuno to siya nya iya nalabay. Kay
kato laging edad edaran na bisag asa na
man lang itago ang mga alahas. Ang
butangan lagi para di ma-ilhan nga mga
alahas butangan ug mga papel. Nang
limpyo sila nya nalabay didto sa basurahan
nya nadala sa garbage truck. Nya
napunitan sa mamasurahay. Kung ikaw
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
naka punit ato, unsay may imo buhaton
para mahatag sa tinu-od na tag-iya? Mag
file kag interpleader so that the conflicting
claimants are compelled to litigate their
several claims.
Where can you file your action for
interpleader?
Answer: You can file it whether in the MTC
or RTC depending upon the value of the
property.
Now the reason of the rule allowing the
filing of interpleader is not to protect the
interplaeder against a doulble liability but
to protect him from double vexation in
respect to single liability . Just imagine
kung adto na ihatag didto sa usa, di ma
filan jud ka ug kaso. So, ikaw dapat unahan
nimo.
Sec. 2. Order. — Upon the filing of the
complaint, the court shall issue an order
requiring the conflicting claimants to
interplead with one another. If the interests
of justice so require, the court may direct
in such order that the subject matter be
paid or delivered to the court.
So for example nakahuwam ka, unya
namatay imong nahuwaman nya karon
nahan ka mobayad. Uy daghan may
nangayo, unsaon mana nimo? So file an
interpleader. Now what about their
expenses? You will be reimburse later on.
Sec. 3. Summons. — Summons shall be
served upon the conflicting claimants,
together with a copy of the complaint and
order.
Sec. 4. Motion to dismiss. — Within the
time for filing an answer, each claimant
may file a motion to dismiss on the ground
of impropriety of the interpleader action or
on other appropriate grounds specified in
Rule 16. The period to file the answer shall
be tolled and if the motion is denied, the
movant may file his answer within the
remaining period, but which shall not be
less than five (5) days in any event,
reckoned from notice of denial.
A motion to dismiss on the ground of
impropriety of the interpleader action is
another ground. This is a different ground
from rule 16.
Read this case of WACK WACK Golf and
Country Club vs Lee E.Won March 26, 1996.
The Supreme Court in this case said that an
action for interpleader should be filed within
a reasonable time after a dispute has arisen
without waiting to be sued by any of the
conflicting claimants.
WACK WACK Golf and Country Club vs
Lee E.Won March 26, 1996
The action of interpleader, under section 120
of the Code of Civil Procedure, is a remedy
whereby a person who has personal property
in his possession, or an obligation to render
wholly or partially, without claiming any right
to either, comes to court and asks that the
persons who claim the said personal property
or who consider themselves entitled to
demand compliance with the obligation, be
required to litigate among themselves in
order to determine finally who is entitled to
tone or the one thing. The remedy is afforded
to protect a person not against double
liability but against double vexation in
respect of one liability. The procedure under
the Rules of Court is the same as that under
the Code of Civil Procedure, except that
under the former the remedy of interpleader
is available regardless of the nature of the
subject-matter of the controversy, whereas
under the latter an interpleader suit is proper
only if the subject-matter of the controversy
is personal property or relates to the
performance of an obligation.
Page | 197

There is no question that the subject matter
of the present controversy, i.e., the
membership fee certificate 201, is proper for
an interpleader suit. What is here disputed is
the propriety and timeliness of the remedy in
the light of the facts and circumstances
obtaining.chanroblesvirtualawlibrary
A stakeholder should use reasonable
diligence to hale the contending claimants to
court. He need not await actual
institution of independent suits against
him before filing a bill of interpleader.
He should file an action of interpleader
within a reasonable time after a dispute
has arisen without waiting to be sued by
either of the contending claimants.
Otherwise, he may be barred by laches
or undue delay. But where he acts with
reasonable diligence in view of the
environmental circumstances, the remedy is
not barred.
Sec. 5. Answer and other pleadings. — Each
claimant shall file his answer setting forth
his claim within fifteen (15) days from
service of the summons upon him, serving
a copy thereof upon each of the other
conflicting claimants who may file their
reply thereto as provided by these Rules. If
any claimant fails to plead within the time
herein fixed, the court may, on motion,
declare him in default and thereafter
render judgment barring him from any
claim in respect to the subject matter.
The parties in an interpleader action may
file counterclaims, cross-claims, third-party
complaints and responsive pleadings
thereto, as provided by these Rules.
Sec. 6. Determination. — After the
pleadings of the conflicting claimants have
been filed, and pre-trial has been
conducted in accordance with the Rules,
the court shall proceed to determine their
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
respective rights and adjudicate their
several claims.
Sec. 7. Docket and other lawful fees, costs
and litigation expenses as liens — The
docket and other lawful fees paid by the
party who filed a complaint under this Rule,
as well as the costs and litigation
expenses, shall constitute a lien or charge
upon the subject matter of the action,
unless the court shall order otherwise.
What is the difference between
intervention and interpleader? This was
asked in the bar.
INTERVENTION INTERPLEADER
It is an ancillary action. It is an original action.
It is proper in any It presupposes that the
situautions mentioned plaintiff has no interest in
in Rule 19. the subject-matter of the
action or has the interest
therein of which , in whole
or in part, is not disputed
by the other parties to the
action.
The defendants are The defendants are being
already original parties sued precisely to implead
to the pending suit. them.
Rule 63
DECLARATORY RELIEF (DR) AND
SIMILAR REMEDIES
Section 1. Who may file petition —
Any person interested under a deed,
will, contract or other written
instrument, whose rights are affected
by a statute, executive order or
regulation, ordinance, or any other
governmental regulation may, before
breach or violation thereof, bring an
action in the appropriate Regional
Trial Court to determine any question
of construction or validity arising,
and for a declaration of his rights or
duties, thereunder.
An action for the reformation of an
instrument, to quiet title to real
property or remove clouds therefrom,
or to consolidate ownership under
Article 1607 of the Civil Code, may be
brought under this Rule.
So take note under Section 1, any person
should be INTERESTED under a deed, will,
contract or other written instrument or the
petitioner must be affected by statute or
law, executive order or regulation,
ordinance, or any other governmental
regulation before breach or violation
thereof, bring an action in the appropriate
Regional Trial Court to determine any
question of construction or validity arising,
and for a declaration of his rights or
duties, thereunder because if there is
already a violation then this provision is
not applicable.
If there is a violation or a breach, then
what action should be filed?
Answer: The case that will be filed by the
aggrieved party would be an ordinary civil
action with respect to the violation or
breach that has been committed such as
injunction.
Now what would be the relief or what
would be his prayer in the petition?
Answer: He can ask to declare his right
under such statute or law . He will ask the
court to interpret or to determine the
validity of the law.
For example, the City Council or the City f
Cebu will enact an ordinance requiring
churches to pay tax. So you might say that
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it is unconstitutional because of the
separation between the church and the
State. So what are you going to do now if
you are one of the parties that might be
affected by the ordinance?
Answer: You may file a Petition for a
Declaratory Relief. Then what is your
purpose of filing such petition?
Answer: To have the ordinance declared
invalid. But you must show that you are
affected. Nga taga simbahan ka. Kay kung
dili ka taga simbahan, then you don't have
any basis that you are affected.
Tolenteno vs Board Of Accountancy,
90 Phil 83
Under the law, an action for declaratory
relief is proper when any person is
interested “under a deed, will, contract or
other written instrument, or whose rights
are affected by a statute or ordinance” in
order to determine any question of
construction or validity arising under the
instrument or statute, or to declare his
rights or duties thereunder (section 1, Rule
66). Moreover, the action should be
predicated on the following conditions:c
(1) there must be a justiciable
controversy; (2) the controversy must be
between persons whose interest are
adverse; (3) the party seeking declaratory
relief must have a legal interest in the
controversy; cyand (4) the issue involved
must be ripened for judicial determination.
(Tolentino vs. Board of Accountancy, 90
Phil., 83)
Now there are similar cases to declaratory
relief. These are Actions:
For the reformation of an instrument or to
quite title for real property or to remove
cloud therefrom or to consolidate
ownership. These actions can be brought
under this Rule although this can be
brought by an Ordinary Civil Actions under
the Rule of Civil Procedure.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Kay ug dili ka taga simbahan you cannot say that
you can be affected by such ordinance. You try
to read this case of Tolentino vs.Board of
Accountancy, et. al. 19 Phil 83.
Now there are similar cases to declaratory relief
these are actions for reformations of instrument
or to quiet title to real property or to remove
clouds therefrom or to consolidate ownership
under Article 1607 of the Civil Code. And these
action can be brought under this Rule. Of course
kaning maong mga actions can also be brought
under the rules on ordinary civil procedure or
ordinary civil actions.
Sagad nga atong madunggan nga nay
declaratory relief nga file didto sa Korte,
kasagaran ni ana, asking for invalidity of a law or
ordinance.
To summarize what are the requisites of an action
for declaratory relief? There are about 6.
1. The subject matter of the controversy must be
a deed, will, contract, or any other written
instrument, statute, executive orders or
regulation or ordinance.
2. The terms of said document or the validity
thereof are doubtful and require judicial
construction.
3. There must have been no breach of the
instrument in question otherwise ordinary civil
action is availing. Etc.
SEC. 2. Parties. – All persons who have or
claim any interest which would be affected
by the declaration shall be made parties;
and no declaration shall, except as
otherwise provided in these Rules,
prejudice the rights of persons not parties
to the action.
If they (all persons who have or claim any
interest) are not made parties in the petition, the
judgment of the Court will not prejudice their
rights.
SEC. 3. Notice on Solicitor General. – In any
action which involves the validity of a
statute, executive order or regulation, or
any other governmental regulation, the
Solicitor General shall be notified by the
party assailing the same and shall be
entitled to be heard upon such question.
SEC. 4. Local government ordinances. – In
any action involving the validity of a local
government ordinance, the corresponding
prosecutor or attorney of the local
government unit involved shall be similarly
notified an entitled to be heard. If such
ordinance is alleged to be unconstitutional,
the Solicitor General shall also be notified
and entitled to be heard.
SEC. 5. Court action discretionary. – Except
in actions falling under the second
paragraph of Section 1 of this Rule, the
court, motu proprio or upon motion may
refuse to exercise the power to declare
rights and to construe instruments in any
case where a decision would not terminate
the uncertainty or controversy which gave
rise to the action, or in any case where the
declaration or construction is not necessary
and proper under the circumstances.
If an action for declaratory relief is filed, the
Court has the discretion not to rule, not to render
judgment on the petition where a decision would
not terminate the uncertainty or controversy
which gave rise to the action, or in any case
where the declaration or construction is not
necessary and proper under the circumstances.
So for example when the language or the
wordings of the ordinance is clear and there is
nothing ambiguous then there is nothing to
interpret so the Court motu proprio or upon
motion, may refuse to exercise power to declare
rights and to construe instruments.
SEC. 6. Conversion into ordinary action. – If
before the final termination of the case, a
breach or violation of an instrument or a
statute, executive order or regulation,
ordinance, or any other governmental
regulation should take place, the action
may thereupon be converted into an
ordinary action, and the parties shall be
allowed to file such pleadings as may be
necessary or proper.
Here the action for declaratory relief can be
converted into an ordinary action. A petition for
declaratory relief is a special civil action but if the
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court believes that there is a need to change or
to convert the action into an ordinary civil action
then the court do so but the court may require
the parties to file the appropriate pleadings as
may be necessary or proper.
So for example a case for declaratory relief is
filed questioning validity of an ordinance or law
then the court can convert into for example an
action for prohibition or an action for mandamus.
There is that in your book that case of Mantalin
Coconut Company Incorporated vs. Municipality
of Palabang Lanao del Sur. So this involves an
action for declaratory relief. However in this
case, although the petitioner asked for the
refund, because he questioned the validity of the
ordinance and he paid the inspection fees under
protest and he filed a petition for declaratory
relief asking the court to declare the ordinance
void and asked further that the Municipality be
ordered to refund the amount that he paid under
protest. This action could have been properly
converted into an ordinary civil action, however,
according to the Supreme Court since the
defendant did not ask that the same be
converted or the defendant failed to object then
it was just proper (because the defendant did not
object) that the court did not convert it. It was
proper for the trial court not to convert it into an
ordinary civil action.
Also in declaratory relief, third party complaint
CANNOT be entertained therein, it is compulsory
counter-claim that may be set up. So third party
complaint cannot be entertained but compulsory
counter-claim can be alleged. Naay mga old
cases diha sa inyu libro.
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTIONS OF THE COMMISSION ON
ELECTIONS AND THE COMMISSION ON
AUDIT
Kaning Rule 64 this is similar to Rule 65 only that
the provisions of Rule 64 are applicable only to
petition for certiorari filed before the Supreme
Court against the Comelec and the COA.
SECTION 1. Scope. – This Rule shall govern
the review of judgments and final orders or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
resolutions of the Commission on Elections
and the Commission on Audit.
When we discussed Rule 43, kahinumdum gi
discuss, Petition for Review over decisions of
quasi-judicial bodies. Where are you going to file
them? Court of Appeals. And you notice that
one of the Constitutional Bodies which can be
reviewed by the Court of Appeals is the decision
of the Civil Service Commission. Ang Civil
Service ra ang maoy adto didto. The other
Constitutional bodies, the COA and the COMELEC
dili ma subject ug petition for review.
Unsa may buhaton nimu if you are aggrieved or if
you disagree with the judgment of the COA or the
Comelec?
For example the Comelec renders a decision and
you are the aggrieved party, what will be your
remedy? Remedy is NOT appeal. There is no
appeal just like an ugly woman there is no
appeal. What you are going to do in order for
that decision to be reviewed is file Petition for
Certiorari before the Supreme Court.
And considering that this is a Petition for
Certiorari just like in Rule 65 the subject is grave
abuse of discretion or lack of jurisdiction or grave
abuse of discretion or excess of jurisdiction. You
cannot ask for a review of the findings of facts
because findings of facts of COA and Comelec are
final. So ang imu ra gyud is grave abuse of
discretion, mao nay subject sa imu petition.
SEC. 2. Mode of review. – A judgment or
final order or resolution of the Commission
on Elections and the Commission on Audit
may be brought by the aggrieved party to
the Supreme Court on certiorari under Rule
65, except as hereinafter provided.
Unya mangutana ka, nganu man nga nagbuhat
pa man ug Rule 64 nga Rule 65 man d i ang
gamitun? Nganu wan a man lang ni gi erase?
Because there are certain provisions in Rule 65
nga different sa Rule 64.
For example, look at the TIME TO FILE A
PETITION. Under Rule 65 it is 60 days but here it
is 30 days. See there is a difference now. Then
the FILING OF A MOTION FOR NEW TRIAL OR
MOTION FOR RECONSIDERATION if allowed under
the Rules of the Commission concerned shall
interrupt the period herein fixed, if the motion is
denied the aggrieved party may a file a petition
within the remaining period but not less that 5
days. Remember the Neypes rule will NOT apply
here because according to the Supreme Court
the purpose is to speed up the resolution of the
case especially election cases. That is the ruling
of the Supreme Court in the case of Papies vs.
Comelec, June 30, 2009.
SEC. 3. Time to file petition. – The petition
shall be filed within thirty (30) days from
notice of the judgment or final order or
resolution sought to be reviewed. The
filing of a motion for new trial or
reconsidereation of said judgment or final
order or resolution, if allowed under the
procedural rules of the Commission
concerned, shall interrupt the period herein
fixed. If the motion is denied, the
aggrieved party may file the petition within
the remaining period, but which shall not
be less than five (5) days in any event,
reckoned from notice of denial.
SEC. 4. Docket and other lawful fees. – Upon
the filing of the petition, the petitioner
shall pay to the clerk of court the docket
and other lawful fees and deposit the
amount of P 500.00 for costs.
Docket and lawful fees must be paid. Basic na.
SEC. 5. Form and contents of petition. – The
petition shall be verified and filed in
eighteen (18) legible copies. The petition
shall name the aggrieved party as
petitioner and shall join as respondents the
Commission concerned and the person or
persons interested in sustaining the
judgment, final order or resolution a quo.
The petition shall state the facts with
certainty, present clearly the issues
involved, set forth the grounds and brief
arguments relied upon for review, and pray
for judgment annulling or modifying the
questioned judgment, final order or
resolution. Findings of fact of the
Commission supported by substantial
evidence shall be final and non-reviewable.
The petition shall be accompanied by a
clearly legible duplicated original or
certified true copy of the judgment, final
Page | 200

order or resolution subject thereof,
together with certified true copies of such
material portions of the record as are
referred to therein and other documents
relevant and pertinent thereto. The
requisite number of copies of the petition
shall contain plain copies of all documents
attached to the original copy of said
petition.
The petition shall state the specific material
dates showing that it was filed within the
period fixed herein, and shall contain a
sworn certification against forum shopping
as provided in the third paragraph of
Section 3, Rule 46.
The petition shall further be accompanied
by proof of service of a copy thereof on the
Commission concerned and on the adverse
party, and of the timely payment of docket
and other lawful fees.
The failure of petitioner to comply with any
of the foregoing requirements shall be
sufficient ground for the dismissal of the
petition.
Findings of fact of the Commission supported by
substantial evidence shall be final and non-
reviewable. Because this is not an appeal this is
a petition for certiorari.
Specific material dates means the date when the
petitioner received a copy of the judgment
questioned or the copy of the order that is the
subject of the petition.
Take note you have to furnish the respondents of
the copy of your petition.
SEC. 6. Order to comment. – If the Supreme
Court finds the petition sufficient in form
and substance, it shall order the
respondents to file their comments on the
petition within ten (10) days from notice
thereof; otherwise, the Court may dismiss
the petition outright. The court may also
dismiss the petition if it was filed
manifestly for delay, or the questions raised
are too unsubstantial to warrant further
proceedings.
Pananglitan ikaw run maoy respondent sa
petition, upon receipt of the petition are you
going to immediately file a comment? NO. You
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
wait for an order of the Supreme Court to
comment because after all upon filing of the
petition the Supreme Court can dismiss the
petition outright on any or certain grounds. So
meaning the Supreme Court can motu proprio.
For example if the Supreme Court finds that the
required docket fees are not paid, for example
the petition is short of the requirement, for
example Rule 64 requires that it should be in 18
copies and the petition is only of 7 copies. Then
there is a lacking requirement then it can be
dismissed outright.
SEC. 7. Comments of respondents. – The
comments of the respondents shall be filed
in eighteen (18) legible copies. The original
shall be accompanied by certified true
copies of such material portions of the
record as referred to therein together with
other supporting papers. The requisite
number of copies of the comments shall
contain plain copies of all documents
attached to the original and a copy thereof
shall be served on the petitioner.
No other pleading may be filed by any party
unless required or allowed by the Court.
SEC. 8. Effect of filing. – The filing of a
petition for certiorari shall not stay the
execution of the judgment or final order or
resolution sought to be reviewed, unless
the Supreme Court shall direct otherwise
upon such terms as it may deem just.
Mao na kung ikaw run ang pilde, the judgment of
the Comelec is against you unya nagtuo jud ka
nga sayup and Comelec unsa imung buhaton?
File a petition for certiorari before the Supreme
Court unya the mere filing of the petition will NOT
STAY the decision because it is not appeal it is an
independent civil action. Meaning to say the
judgment of the Comelec can be executed. So
what are you going to do? You pray in your
petition provisional remedy of injunction with
prayer of issuance of temporary protection order
to restrain the Comelec from enforcing its
decision.
Timan-e na ha. Usa na sa mga kalainan sa
petition for review on certiorari ug sa petition for
certiorari under Rule 65. It will no stay. Filing of
a petition for certiorari will not stay the execution
unlike in petition for review on certiorari which is
a mode of appeal.
SEC. 9. Submission for decision. – Unless
the Court sets the case for oral argument,
or requires the parties to submit
memoranda, the case shall be deemed
submitted for decision upon the filing of the
comments on the petition, or of such other
pleadings or papers as may be required or
allowed, or the expiration of the period to
do so.
Of course after the submission of the comment
by the respondent the Supreme Court may
submit the case for decision or may require the
parties to submit memorandum.
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Rule 65 tells us on rules on three special civil
actions, certiorari, prohibition and mandamus.
By the ways pwede ni nimu ma combine. So you
can file certiorari and prohibition, you can file
prohibition and certiorari, so pwede nimu
combine combine. Dili na ingun ka kailangan
nimu pinagsa. You can combine them depende
sa imung remedy asked.
Timan-e ninyu ning tulo. Certiorari, prohibition
and mandamus, these could be availed of as a
last resort. Mura nig mga sardinas. If you have
other remedies available these actions cannot be
availed of. You can only avail of these remedies if
you have no asap remedy. Unsa ma nang asap
remedy? If you have no appeal, if there is no
speedy, adequate and plain remedy.
SECTION. 1. Petition for certiorari. – When
any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted
without or in excess of its or his
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the
proper court, alleging the facts with
certainty and praying that judgment be
rendered annulling or modifying the
Page | 201

proceedings of such tribunal, board or
officer, and granting such incidental reliefs
as law and justice may require.
The petition shall be accompanied by a
certified true copy of the judgment, order
or resolution subject thereof, copies of all
pleadings and documents relevant and
pertinent thereto, and a sworn certification
of non-forum shopping as provided in the
third paragraph of section 3, Rule 46.
Unsay kalainan anang without jurisdiction?
Without jurisdiction you have to look at the
elements of jurisdiction. For example the court,
that it has jurisdiction over the subject matter
then go back to BP 109, jurisdiction over the
plaintiff, jurisdiction over the defendant, issuance
of summons, voluntary appearance, jurisdiction
over the issues, jurisdiction over the res. If the
court does not have any jurisdiction, if one of the
elements is absent then the court does not have
any jurisdiction. And if the court does not have
any jurisdiction and yet it renders a decision or it
issues and order then that order can be a subject
of a petition for certiorari because the court has
no jurisdiction.
Now, unsa ma nang excess of jurisdiction? When
you say the court acted in excess of jurisdiction
that would presupposes that the court has
jurisdiction over the case only it acted in excess
of its jurisdiction. Nanubra ra wala magsubay sa
kalsada, nanubra. It has jurisdiction but it acted
in excess of its jurisdiction when it issued the
order.
Then another unsay pasabot anang with grave
abuse of discretion? Meaning it has jurisdiction
over the case but when it issued the judgment or
the order it acted with grave abuse of discretion.
Take note ha grave. The court is allowed to
abuse its discretion. Mere abuse of discretion
cannot be a subject of certiorari. Its grave abuse
of discretion.
For example action for support with prayer for
support pendente lite. Suppose the court issues
an order for provisional support without hearing.
What would be your remedy? Upon receipt of the
complaint the court immediately issues the order
without any hearing requiring the defendant to
give support what would be your remedy? First
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
you file a motion for reconsideration arguing that
the order is in violation of the rules meaning it is
void because it is issued without hearing. We
have learned that before issuance of an order to
give support there must be a hearing then if it is
issued without any hearing then the court has
acted in excess or with grave abuse of its
discretion.
When the court acted in excess, and Korte mi
excess na gani sa iyang jurisdiction or with grave
abuse of discretion it is as if that the court has no
more jurisdiction over the case mao nay gi ingun
nga amounting to lack of jurisdiction.
In any case wherein a judgment or order is issued
by the Court without jurisdiction or the court
acted in excess of jurisdiction or with grave
abuse of discretion the aggrieved party can file a
petition for certiorari when there is NO ASAP
remedy, no appeal, no speedy, and no plain
remedy.
And the petition must be verified. This is another
rule that requires the pleading to be verified
asking the court to nullify or modify the
proceedings of such tribunal, board, or officer
granting such incidental reliefs as law and justice
may require.
Remember that petition for certiorari can only be
availed of against judicial bodies or courts and
also quasi-judicial bodies.
Then the petition shall be accompanied by a
certified true copy. Take note certified true copy
not just machine copy because if you attach to
your petition mere Xerox copy not certified then
that can be dismissed.
Kaning petition for certiorari you could also
consider this as one of the post judgment
remedies. Kay kani man gud petition for
certiorari can be filed within 60 days so that
presupposes that the decision has already
become final and executory. Because the
decision becomes final and executory after the
lapse of 15 days so you can use this as one of the
post-judgment remedies.
This has been asked in the bar several times.
Distinguish petition for review on certiorari
from petition for certiorari. There are several
distinctions if that is asked you give at least
three. Na diha sa notation ni Regalado sa Rule
45 nay daghan diha. One important
distinction is that petition for certiorari under
Rule 65 only error of jurisdiction is raised
meaning question of jurisdiction whereas in
petition for review on certiorari on Rule 45
only questions of law is raised. Sa petition
for review
Rule 65 Rule 45
Error of jurisdiction or Error of law or question
question of jurisdiction of law.
Now lain na sad nga pangutana sa bar.
Distinguish error of judgment from error of
jurisdiction. When you say error of jurisdiction
meaning the court has no jurisdiction whereas
error of judgment presupposes that the court has
jurisdiction only that it commits error in the
application of facts or in the appreciation of the
law and that is why your remedy is appeal.
Whereas in error of jurisdiction your remedy is
petition for certiorari.
Again error of judgment the court has jurisdiction
but only the court has committed errors or
mistakes in the appreciation of facts, when you
say appreciation of facts example is when you
say whether or not this witness is telling the
truth, for example mi ingun ang court nga this
witness is credible pero ni ingun and usa no she
is not credible, that is a question of fact and if
there is any error in the appreciation of facts then
that is error in judgment then that can be a
subject of appeal not of a petition for certiorari.
Whereas error of jurisdiction presupposes that
the court has no jurisdiction or it acted in excess
of its jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction. You
try to read this case of GSIS vs. Olisag, 304 SCRA
421.
Another question is lack of jurisdiction against
excess of jurisdiction. We discussed that already.
Lack of jurisdiction aw wa jud kay power whereas
excess of jurisdiction that presupposes that you
have jurisdiction but you have exceeded your
power, you abused your power gravely.
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Petition for certiorari under Rule 65 is an original
action, being an original action or separate action
it does not interrupt the proceedings of the court
that issued the questioned order. Pananglitan
karun in our example the plaintiff files a claim for
support with a prayer for support pendente lite,
upon filing of the complaint the court
immediately issues an order granting the prayer
for support pendente lite without any hearing.
Now you file a petition for certiorari questioning
the validity of the order of the court, if you do not
ask, and if the court where the petition is filed
(wala gitiwas ni JD iya storya ni shift siya kanang
na sa next paragraph)
By the way a petition for certiorari is filed in the
higher court. For example the order is issued by
RTC it should be with the Court of Appeals or
Supreme Court. Take note that Supreme Court
has concurrent jurisdiction over certiorari,
prohibition, mandamus. Duna siyay concurrent
jurisdiction and when we say concurrent
jurisdiction meaning either courts have authority
to take cognizance of the action but you are not
at liberty to choose which court because you
have to follow the doctrine of hierarchy of courts.
You can only avail of the jurisdiction of the
Supreme Court when there is special and
important reasons stated in the petition.
Pero duna puy petition for certiorari, petition for
mandamus, petition for prohibition nga adto ra
pud sa Supreme Court nimu ma file if the
respondent is the Court of Appeals,
Sandiganbayan, COA or the Comelec. Timan-e
gyud nang mga jurisdiction.
Being an original action, the mere filing of a
petition for certiorari will not stop the
proceedings. For example in that case for
support, you filed a petition for certiorari
questioning the order of the court the
proceedings will not be stopped, it will continue
unless the higher court where the petition is filed
will issue an injunction or restraining order. That
is why when you file a petition for certiorari MAKE
SURE to include prayer for issuance of TRO or
preliminary injunction. Because if you do not
pray for such provisional remedies then the
proceedings in the lower court will not be
stopped and in fact the judge may be subjected
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
to disciplinary action if it will stop the
proceedings without any restraining order.
In your book there are distinctions between
certiorari, prohibition and mandamus, BE SURE to
know the distinctions.
GENERAL RULE :
Petition for certiorari is not available
when there is appeal or the remedy is appeal.
EXCEPTIONS:
There are cases where the Supreme
Court allowed a petition for certiorari even if
appeal could be availed of. Look at na sa inyung
libro daghan kaso gi cite si Regalado. For
example appeal does not constitute the speedy
and adequate remedy, when the order is also
issued even without or in excess of jurisdiction.
By the way maayu magclaro ta diri.
For example the court has no jurisdiction, there is
a case filed and the court has no jurisdiction.
Ibutang nato 1st level court entertained a case
wherein it has no jurisdiction, you file a motion to
dismiss on the ground of lack of jurisdiction,
denied. Ikaw nagtuo jud ka nga way jurisdiction
pero ang imung motion gi deny, unsa man run
ang imuhang next move? Either file a petition for
certiorari or you can also file your answer and
allege in your affirmative defense that the court
does not have jurisdiction.
Now karun nag hearing, now after hearing, after
trial, the court renders decision. What is your
remedy now? You can file appeal and in your
appeal you can raise issue of jurisdiction pero
nakita nimu nga dugay pa. Kay ug mu ingun
man gud kag appeal you cannot appeal an
interlocutory order. So makit-an nimu nga dugay
pa ka maka apilar but it does not mean that in
your appeal you cannot anymore raise that
issues of lack of jurisdiction. It does not mean
that in your appeal you cannot raise that issue of
lack of jurisdiction. You can. Although dili na siya
asap, dili siya speedy, dili siya adequate, dili siya
plain. So pwede ka ka apilar pero dugay lang.
You have to wait for the disposition of the entire
case. That is why kung gadali jud ka you can file
a petition for certiorari.
As already stated when the remedy of appeal
was lost because the negligence of the petitioner
he cannot avail of petition for certiorari.
Another name of petition for certiorari is writ of
certiorari.
GENERAL RULE;
Before you can file a petition for certiorari
you have to file first a motion for reconsideration
of the order. Why? Because as what we have
said, petition for certiorari can only be availed of
if there is no other remedy available. Upon
issuance of a void order you cannot say that
petition for certiorari is the only remedy because
you can still file motion for reconsideration. You
avail first of this remedy. Meaning you give first
chance to the court to correct its decision then
after that if motion for reconsideration is denied
then you can file now a petition for certiorari.
HOWEVER:
In your book there are also exceptions.
Meaning there are instances wherein the
Supreme Court dispensed with the filing of a
motion for reconsideration before filing petition
for certiorari. For example when the order is
patent nullity, when the question raised in the
ordinary proceeding have already been raised
and passed upon by the lower court. Pero
daghan ma ni sila. Pero ayaw jud ug kumpyansa
file jud ug motion for reconsideration, do not take
chances paniguro jud file jud ug motion for
reconsideration.
Kani siyang pag file ug motion for reconsideration
over a void order or decision of the court because
the court has no jurisdiction or acted in excess of
jurisdiction, gamit sad na if you want to run after
the judge. If you want to file administrative case
over the judge for ignorance of the law gamit na
siya because the judge now cannot say that he
was not given any opportunity to correct his
order. Pero I advice you against the taking of
such kind of action. Gawas lang ug nagtuo jud ka
nga the issuance of that order is in bad faith
example nasudlan ta ang judge.
Remember that when you file a petition for
certiorari be sure that you have grounds because
filing of baseless petition for certiorari is a ground
for disciplinary action and your petition which is
groundless can be used as evidence against you
based on the principle of res ipsa loquitor – your
petition speaks for itself.
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SEC. 2. Petition for prohibition. – When the
proceedings of any tribunal, corporation,
board, officer or person, whether exercising
judicial, quasi-judicial or ministerial
functions, are without or in excess of its or
his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy
in the ordinary course of law, a person
aggrieved thereby may filed a verified
petition in the proper court, alleging the
facts with certainty and praying that
judgment be rendered commanding the
respondent to desist from further
proceedings in the action or matter
specified therein, or otherwise granting
such incidental reliefs as law and justice
may require.
The petition shall likewise be accompanied
by a certified true copy of the judgment,
order or resolution subject thereof, copies
of all pleadings and documents relevant
and pertinent thereto, and a sworn
certification of non-forum shopping as
provided in the third paragraph of Section
3, Rule 46.
Now unsa may kalainan sa prohibition ug sa
prohibitory injunction. Take note nga mu
pareha sila ug result, prohibit, pugngan nimu
sila sa ila gibuhat.
Prohibition (Rule Prohibitory
65) Injunction (Rule
58)
Is a special civil Provisional remedy or
action. ancillary remedy.
Naay daghan distinction ani diha sa inyung libro
na didto sa preliminary injunction.
In other words if you file an action for prohibition
be sure to include prayer for provisional remedy
of preliminary injunction because it will not stop
the proceedings. Mere filing of a petition for
prohibition will not stop the proceedings unless
there is a restraining order.
There is a ruling there in your book which says
that in order that prohibition will lie against an
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
executive officer the petitioner must first exhaust
all administrative remedies simply because
prohibition just like certiorari must be the last
resort. If administrative remedies can also be
availed of then petition for prohibition will not
prosper.
SEC. 3. Petition for mandamus. – When any
tribunal, corporation, board, officer or
person unlawfully neglects the performance
of an act which the law specifically enjoins
as a duty resulting from an office, trust, or
station, or unlawfully excludes another
from the use and enjoyment of a right or
office to which such other is entitled, and
there is no other plain, speedy and
adequate remedy in the ordinary course of
law, the person aggrieved thereby may file
a verified petition in the proper court,
alleging the facts with certainty and
praying that judgment be rendered
commanding the respondent, immediately
or at some other time to be specified by the
court, to do the act required to be done to
protect the rights of the petitioner, and to
pay the damages sustained by the
petitioner by reason of wrongful acts of the
respondent.
The petition shall also contain a sworn
certification of non-forum shopping as
provided in the third paragraph of Section
3, Rule 46.
Now petition for mandamus is applicable only to
purely ministerial duties. For example, we have
learned that when the party for example the
plaintiff and the decision has become final and
executory take note that issuance of writ of
execution upon motion is a matter of right
meaning the court cannot deny the issuance.
And if the court denies the writ of execution then
the remedy of the court could be mandamus. He
can file the remedy of mandamus and order the
lower court to issue the writ of execution because
issuance of the same is now a matter of right.
The trial court does not have any discretion.
Issuance of the writ of execution becomes merely
ministerial. So tan-awun nimu if ministerial ba or
discretionary.
Can you file mandamus ordering the prosecutor’s
office to file a criminal case in court? Mu file ka
for example ug complaint for rape unya gi
dismiss sa prosecutor’s office can you file
mandamus in court to compel the prosecutor’s
office to file the case? NO. Because the
prosecutor’s office has the discretion whether or
not to file a criminal case. Pero duna hinuon
exception to the rule for example when the
prosecutor’s office, for example duna gyud
ebidensya nga angay siya e file. But that is an
exception rather than a general rule. Because as
a general rule you cannot compel the prosecutor
to file because the prosecutor’s office is
performing a discretionary function.
Unya dunay mga cases diha sa inyung libro for
example that case of Magtibay vs. Garcia, Sijab
vs. Galang. Mandamus will lie to compel
ministerial not on discretionary function.
That case of Makati vs. CA where __ party ___
without justifiable cause to pay final money
judgment against him the claimant may avail the
remedy of mandamus to compel the enactment
and the corresponding disbursement of ____
funds. (Paspas kaau si JD please refer sa
Regalado).
And that case of Perez vs. City of Mayor
Cabanatuan where the Supreme Court said that
mandamus is premature if administrative
remedies are available.
SEC. 4. When and where to file the petition.
– The petition shall be filed not later than
sixty (60) days from notice of judgment,
order or resolution. In case a motion for
reconsideration or new trial is timely filed,
whether such motion is required or not, the
petition shall be filed not latter than sixty
(60) days counted from the notice of the
denial of the motion.
If the petition relates to an act or an
omission of a municipal trial court or of a
corporation, a board, an officer or a person,
it shall be filed with the Regional Trial Court
exercising jurisdiction over the territorial
area as defined by the Supreme Court. It
may also be filed with the Court of Appeals
or with the Sandiganbayan, whether or not
the same is in aid of the court’s appellate
Page | 204

jurisdiction. If the petition involves an act
or an omission of a quasi-judicial agency,
unless otherwise provided by law or these
rules, the petition shall be filed with and be
cognizable only by the Court of Appeals.
In election cases involving an act or an
omission of a municipal or a regional trial
court, the petition shall be filed exclusively
with the Commission on Elections, in aid of
its appellate jurisdiction.
As what we have said a motion for
reconsideration is generally required. Now take
note of Rule 64 because under Rule 64 it is only
30 days whereas here it is 60 days and filing of a
motion for reconsideration or new trial will only
stop the running of the prescriptive period and
the respondent will only be given the remaining
period.
When you file the petition, the action can be filed
with the RTC if the respondent is the Municipal
Trial Court. Of course the action can also be filed
before the Court of Appeals or the
Sandiganbayan. Kung quasi-judicial agency dili
na ka mu agi sa RTC kay ka level na sila so you
file it with the Court of Appeals. Ang inyung tan-
awun kay katong sa quasi-judicial bodies gani
nga kung regular pa na, quasi-judicial bodies asa
man ka mu file? Adto sa Court of Appeals.
Petition for certiorari Court of Appeals pud so
adto ka sa mas taas.
Kani exception ni. In election cases involving an
act or an omission of a municipal or a regional
trial court, the petition shall be filed exclusively
with the Commission on Elections, in aid of its
appellate jurisdiction.
SEC. 5. Respondents and costs in certain
cases. – When the petition filed relates to
the acts or omissions of a judge, court,
quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall
join, as private respondent or respondents
with such public respondents, the person or
persons interested in sustaining the
proceedings in the court; and it shall be the
duty of such private respondents to appear
and defend, both in his or their own behalf
and in behalf of the public respondent or
respondents affected by the proceedings,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
and the costs awarded in such proceedings
in favor of the petitioner shall be against
the private respondents only, and not
against the judge, court, quasi-judicial
agency, tribunal, corporation, board, officer
or person impleaded as public respondent
or respondents.
Unless otherwise specifically directed by
the court where the petition is pending, the
public respondents shall not appear in or
file an answer or comment to the petition
or any pleading therein. If the case is
elevated to a higher court by either party,
the public respondents shall be included
therein as nominal parties. However,
unless otherwise specifically directed by
the court, they shall not appear or
participate in the proceedings therein.
In petition for certiorari, mandamus, and
prohibition you have to include the Court as
public respondent unlike in appeal. In appeal you
do not implead the court but here you implead as
public respondent. However, the public
respondent will not be required to comment he is
just a nominal party and will not also be required
to appear before the court.
In fact there was one judge who was disciplined
by the Supreme Court because the judge who
was subjected to a petition for certiorari filed his
comment before the Court where the petition for
certiorari is pending. He was disciplined by the
Supreme Court. So dili jud mu appear.
Who will defend the order or judgment of the
court which was questioned? The private
respondent. Katong interested party mao toy mu
depensa nimu.
SEC. 6. Order to comment. – If the petition
is sufficient in form and substance to justify
such process, the court shall issue an order
requiring the respondent or respondents to
comment on the petition within ten (10)
days from receipt of a copy thereof. Such
order shall be served on the respondents in
such manner as the court may direct,
together with a copy of the petition and any
annexes thereto.
In petitions for certiorari before the
Supreme Court and the Court of Appeals,
the provisions of Section 2, Rule 56, shall
be observed. Before giving due course
thereto, the court may require the
respondents to filed their comment to, and
not a motion to dismiss, the petition.
Thereafter, the court may require the filing
of a reply and such other responsive or
other pleadings as it may deem necessary
and proper.
Here the court where the petition is filed may
order the respondent to comment within 10 days.
When you file petition for certiorari in the Court
of Appeals or in the RTC it is required that you
furnish a copy of your petition to the respondent
including the court. Furnishan ka ug copy pero
diri sa RTC over the judgment or decision of the
first level court there is no need for you to furnish
the decision to the lower court or respondents.
Unsaun man pagkahbaw sa respondent? Upon
issuance of the order requiring the respondent to
file his comment the copy of the petition shall be
attached. Murag summons nga e-attach.
SEC. 7. Expediting proceedings; injunctive
relief. – The court in which the petition is
filed may issue orders expediting the
proceedings, and it may also grant a
temporary restraining order or a writ of
preliminary injunction for the preservation
of the rights of the parties pending such
proceedings. The petition shall not
interrupt the course of the principal case,
unless a temporary restraining order or a
writ of preliminary injunction has been
issued, enjoining the public respondent
from further proceeding with the case.
The public respondent shall proceed with
the principal case within ten (10) days from
the filing a petition for certiorari with a
higher court or tribunal, absent a
temporary restraining order or a
preliminary injunction, or upon its
expiration. Failure of the public respondent
to proceed with the principal case may be a
ground for an administrative charge.
Section 7 we have discussed this already that
being an original action certiorari, mandamus,
prohibition that will not interrupt the proceedings
of the court unless the court where the petition is
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filed will issue a restraining order. It could be
temporary restraining order then followed by a
preliminary injunction.
SEC. 8. Proceedings after comment is filed.
– After the comment or other pleadings
required by the court are filed, or the time
for the filing thereof has expired, the court
may hear the case or require the parties to
submit memoranda. If, after such hearing
or filing of memoranda or upon the
expiration of the period for filing, the court
finds that the allegations of the petition are
true, it shall render judgment for such relief
to which the petitioner is entitled.
However, the court may dismiss the petition
if it finds the same patently without merit,
or prosecuted manifestly for delay, or if the
questions raised therein are too
unsubstantial to require consideration. In
such event, the court may award in favor of
the respondent treble costs solidarily
against the petitioner and counsel, in
addition to subjecting counsel to
administrative sanctions under Rules 139
and 139-B of the Rules of Court.
The Court may impose motu proprio, based
on res ipsa loquitor, other disciplinary
sanctions or measures on erring lawyers for
patently dilatory and unmeritorious
petitions for certiorari.
Section 8 what would be the proceedings after
the comment is filed the court may hear the case
or require the parties to submit memoranda.
Usually ana walay hearing didto. When you say
trial, reception of evidence, usually there is no
reception of evidence the parties will just argue
that case based on memoranda. Nganu ikaw
may mudaug, nganu imu man e nullify ning order
ikaw man ang petitioner ikaw nganu angay man
nato e nullify.
Then look at as what we have said earlier the
court can dismiss the petition if it finds that it is
without any merit with the obvious intention just
to delay the proceedings. The court may award
in favor of the respondent treble costs solidarily
against the petitioner and counsel. The Court
may impose motu proprio, based on res ipsa
loquitor, other disciplinary sanctions or measures
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari.
SEC. 9. Service and enforcement of order or
judgment. – A certified copy of the
judgment rendered in accordance with the
last preceding section shall be served upon
the court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court may
direct, and disobedience thereto shall be
punished as contempt. An execution may
issue for any damages or costs awarded in
accordance with Section 1 of Rule 39.
Then Section 9 is the service of the judgment.
DECEMBER 10, 2012
In case of urgency, TRO can be issued ex parte
only TRO can be issued ex. parte but when it is
served it must be, at the time of service of the
order, the SUMMONS must have already been
served or served together with the order. Then,
we also talk about declaratory relief.
Declaratory relief, this is the action to be filed
if a person who is interested in a document,
deed, will, contract or other written instrument,
or whose rights are affected by a law, statute,
executive order, ordinance in relation, verified to
question the validity of that law or for the
interpretation of that contract or deed.
Declaratory relief is within the exclusive
jurisdiction of the, exclusive original jurisdiction
of the RTC. Usahay makalibog ni siya kay
kahinumdum mo sa inyong Constitution, the
Supreme Court, in article 8 of the Constitution,
one of the original exclusive jurisdiction of the SC
is an action involving in the constitutionality of a
law. When we say constitutionality it is the
validity. When we say declaratory relief you are
going to question usa sa mga subjects sa
declaratory relief ang validity sa balaOd.
However dunay laing paagi unsaOn nimo pag
question sa validity sa balaOd, theres another
action that you can question also the
constitutionality of the law by way of prohibition
and/or certiorari. A lot of cases were filed directly
with the SC but the case filed is not Declaratory
Relief (DR) but what they filed is prohibition and
certiorari.
For example, remember that particular provision
of the republic act 9165, that provision requiring
candidates for elected positions to undergo
mandatory drug test. That provision the
constitutionality of that particular provision was
questioned by sen. Pimentel, he said that it is in
viol of constitution because there was no certain
requirement provided under the constitution for
the classification of a senator. The req are only he
must be a natural born, resident of phil for at
least 1 year, there are about 5, mandatory drug
test is not mentioned in constitution that
provision is unconstitutional.
What is the case that he filed in SC?
Petition for Prohibition and certiorari against the
COMELEC
Arguing that particular provision is
unconstitutional. He was sustained by the SC.
Pimentel VS COMELEC
GR 161658 11.03.08
Read that case. I’m telling you the other means
of questioning the validity of a statute. It could
also include the questioning of an ordinance. It’s
not DR that you filed but prohibition and/ or
certiorari.
We also discussed last meeting PROHIBITION,
CERTIORARI AND MANDAMUS.
By way of review, you can combine CERTIORARI
AND PROHIBITION or CERTIORARI AND
MANDAMUS.
Certiorari if you wanted to annul the issuance.
You prohibit it apilan nmug prohibition. Gusto
nmug immediate, prayer for preliminary and
injunction and TRO.
Let’s go now to RULE 66
RULE 66
QUO WARRANTO
Quo warranto this is a question quo..quo..,
where are you going? Meaning by what
authority? BY WHAT AUTHORITY.
Section 1. Action by Government
against individuals. — An action for the
usurpation of a public office, position or
franchise may be commenced by a verified
petition brought in the name of the
Republic of the Philippines against:
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

(a) A person who usurps, intrudes into, QW must be filed w/n action in court asking for permission to file a
or unlawfully holds or exercises a public 10 days before petition for QW. In Sec 3 there are 2 steps:
office, position or franchise; proclamation of the  Filing of the petition asking for permission
Why the govt is interested in this? candidate. Meaning he  Filing of the petition for QW itself after
It is bec it involved public office that’s why the must not have the Petition for Permission is granted by
action is brought under the name of RP. occupied yet the the court
(b) A public officer who does or suffers position.
an act which, by the provision of law, Petition may be filed by Whereas, under the Section 4. When hearing had on
constitutes a ground for the forfeiture of any registered Rules, the petitioner application for permission to commence
his office; or candidate for the same must be entitled with action. — Upon application for permission
(c) An association which acts as a office and even if the the office and the 1 to commence such action in accordance
corporation within the Philippines without petition prospers would who will assume if his with the next preceding section, the court
being legally incorporated or without lawful not be entitled with the action succeeds. shall direct that notice be given to the
authority so to act. (1a) office respondent so that he may be heard in
Nganu manghilabot man sad ang govt ana? Kini specific applicable General ni siya opposition thereto; and if permission is
It is bec it acted w/o authority from the state. It only to elected public granted, the court shall issue an order to
can be filed in the RTC called Commercial Court. officer that effect, copies of which shall be served
In your Election law, u came across the term
on all interested parties, and the petition
Election contest. Section 2. When Solicitor General or shall then be filed within the period ordered
Election contest vs. Quo warranto public prosecutor must commence action. — by the court.
Both involved public office. However, The Solicitor General or a public prosecutor, Upon application for permission to commence
Election contest Quo warranto when directed by the President of the such action the court will direct that notice to be
Philippines, or when upon complaint or given to the respondent so that respondent may
otherwise he has good reason to believe be heard. And if permission is granted the
Basis: challenges the Occupant is
that any case specified in the preceding petition shall then be filed within the period
person by reason of disqualified from
section can be established by proof, must ordered by the court. Sec 4 is related to Sec 3.
irregularity in conduct holding office because
commence such action. (3a) Section 5. When an individual may
of election. of disloyalty
This is what we called COMPULSORY QUO commence such an action. — A person
You challenge the WARRANTO. This is seldom done. claiming to be entitled to a public office or
qualification of the Section 3. When Solicitor General or position usurped or unlawfully held or
occupant arguing that public prosecutor may commence action exercised by another may bring an action
he is not eligible with permission of court. — The Solicitor therefor in his own name.
The successful If quo warranto General or a public prosecutor may, with This is the more common QW, mao ni sagad nato
protestant will assume succeeds respondent the permission of the court in which the ma encounter. What is this kind of QW? This is
office if he has obtain shall be removed from action is to be commenced, bring such an filed by the person claiming to be entitled to a
the plurality of valid office but the petitioner action at the request and upon the relation public office or position usurped or unlawfully
votes will not assume office. of another person; but in such case the held or exercised by another. So, he can file a
officer bringing it may first require an Petition for QW in his own name. Under sec 2&3,
In the Election Code there is also Quo Warranto. indemnity for the expenses and costs of the 4, the QW is initiated by SOLGEN or PUB PROS
Quo warranto under Rules of Court vs Quo action in an amount approved by and to be but here the QW is initiated by PRIVATE
Warranto under Election Code. deposited in the court by the person at INDIVIDUAL. This private individual must have a
whose request and upon whose relation the claim of over that public office.
QW under Election QW under Rules of same is brought. (4a) For ex a RD of DPWH is removed and replaced by
Code Court (R66) This is what we called DISCRETIONARY QUO another by the President, with no reason at all
Petition for QW must It presupposes that the WARRANTO. Meaning this presupposes that there ( known to be at the opposite party) Now, let us
be filed w/in 10 days respondent is actually is person making a request to file a petition for say that the replacement is not qualified to be a
from the proclamation holding office QW, the Sol Gen OR prosecutor in turn file an Director. What is the remedy of the RD being
of the candidate replaced by another?
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Ans: He can file an action for QW the person who
replaced him in court. Take note that in order for
the petition for QW he must have a claim in that
office.
During the time of former Pres Marcos, he was
elected in 1965. Before the Pres has 2 terms for 4
yrs under 1935 Constitution. 65- 69. Purportedly
elected in 1969 so he has another term until
1973. However, he declared Martial Law in 1972
and so that there would be no election held in
1973. Why there was no election? One reason is
that there was a new 1973 Constitution and
another according to him, the country was
chaotic. There was this group questioning the
legitimacy of presidency of Pres Marcos, the Civil
Liberties Union file a petition for QW before SC
questioning the legitimacy of presidency of Pres
Marcos.
Now, SC dismissed it on the ground that
petitioner group none of its member has a claim
or interest in the presidency. Thus they have no
personality to file for QW. A private individual
must have a claim in the office. In that case, who
can question for QW? It is only the SOLGEN.
Generally, it is the SOLGEN who has the right to
question because it involved public office and the
govt is interested.
But by way of exception the RoC, allows private
individual to initiate a QW but there is a
requirement. A private person must have a claim
to that public office. This is the common QW to
be filed by a private individual. Common QW.
Section 6. Parties and contents of
petition against usurpation. — When the
action is against a person for usurping a
public office, position or franchise, the
petition shall set forth the name of the
person who claim to be entitled thereto, if
any, with an averment of his right to the
same and that the respondent is unlawfully
in possession thereof. All persons who
claim to be entitled to the public office,
position or franchise may be made parties,
and their respective rights to such public
office, position or franchise determined, in
the same action.
Section 7. Venue. — An action under the
preceding six sections can be brought only
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
in the Supreme Court, the Court of Appeals,
or in the Regional Trial Court exercising
jurisdiction over the territorial area where
the respondent or any of the respondents
resides, but when the Solicitor General
commences the action, it may be brought in
a Regional Trial Court in the City of Manila,
in the Court of Appeals, or in the Supreme
Court.
Take note:
Regional Trial Court, in the Court of
Appeals, or in the Supreme Court has
concurrent original jurisdiction always remember
the DOCTRINE OF HEIRACHY OF COURTS. You
cannot directly invoke the jurisdiction of SC. You
can only resort to if there is SPECIAL AND
IMPORTANT REASONS STATED IN THE COMPLAINT
OR PETITION.
However, when the action is initiated by the
SOLGEN the action may be brought in the RTC in
the City of Manila, CA or SC.
For example, an unregistered corporation is
found here in cebu and the SOLGEN filed QW in
RTC MANILA. Should the case be dismissed on the
ground of improper venue?
Ans: NO. Under Sec 7, when the QW is initiated
by the SOLGEN, it may be brought in a
Regional Trial Court in the City of Manila, in
the Court of Appeals, or in the Supreme
Court.
Section 8. Period for pleadings and
proceedings may be reduced; action given
precedence. — The court may reduce the
period provided by these Rules for filing
pleadings and for all other proceedings in
the action in order to secure the most
expeditious determination of the matters
involved therein consistent with the rights
of the parties. Such action may be given
precedence over any other civil matter
pending in the court.
Take note of QW involved in public office, the
action must be resolved with dispatch swiftly.
Section 9. Judgment where usurpation
found. — When the respondent is found
guilty of usurping into, intruding into, or
unlawfully holding or exercising a public
office, position or franchise, judgment shall
be rendered that such respondent be
ousted and altogether excluded therefrom,
and that the petitioner or relator, as the
case may be, recover his costs. Such
further judgment may be rendered
determining the respective rights in and to
the public office, position or franchise of all
the parties to the action as justice requires.
What is relator?
Remember the 2 steps QW? Mofile usa ug
permission sa court ang SOLGEN, naa many mo
request nga private individual. So, mao tong
gitawag nga ralator, the person who requested
the SOLGEN to file the case.
Section 10. Rights of persons adjudged
entitled to public office; delivery of books
and papers; damages. — If judgment be
rendered in favor of the person averred in
the complaint to be entitled to the public
office he may, after taking the oath of office
and executing any official bond required by
law, take upon himself the execution of the
office, and may immediately thereafter
demand of the respondent all the books
and papers in the respondent's custody or
control appertaining to the office to which
the judgment relates. If the respondent
refuses or neglects to deliver any book or
paper pursuant to such demand, he may be
punished for contempt as having disobeyed
a lawful order of the court. The person
adjudged entitled to the office may also
bring action against the respondent to
recover the damages sustained by such
person by reason of the usurpation.
The respondent who was ordered removed can
be ordered to immediately turn over the books,
and other docs. Possible man nga d to xa
mopahawa and ig mopahawa man i lock ang
office or bring all the things sa ilaha. The court
may order the removed public officer to turn over
the book to the petitioner otherwise he will be
held in contempt.
The petitioner (the person adjudged to be
entitled to the office) may also bring action
against the respondent to recover damages for
the act of usurpation. A separate action for
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damages same may be filed within 1 year after
the entry of judgement of the QW proceeding.
Section 11. Limitations. — Nothing
contained in this Rule shall be construed to
authorize an action against a public officer
or employee for his ouster from office
unless the same be commenced within one
(1) year after the cause of such ouster, or
the right of the petitioner to hold such
office or position, arose, nor to authorize an
action for damages in accordance with the
provisions of the next preceding section
unless the same be commenced within one
(1) year after the entry of the judgment
establishing the petitioner's right to the
office in question.
This is the prescriptive period to file QW. If a
public officer was removed in his office illegally
he has 1 year to file QW and if the QW action
succeeds dba he can file action for damages, he
has also 1 year to file a separate action for
damages from entry of judgement of the QW.
IT IS NOT AONLY FOR PUBLIC OFFICE BUT ALSO
TO UNREGISTERED CORPORATION AND IT CAN BE
INITIATED BY THE SOLGEN OR ANY PRIVATE
PERSON ESP WHEN THE SUBJECT IS PUBLIC
OFFICE WHO HAS A CLAIM ON THAT PUBLIC
OFFICE.
RULE 67
Expropriation
Let’s go now to expropriation. It can also be
found in the Constitution. It is one of the
elements of eminent domain which is one of the
powers of the state. It refers to the right of the
govt to take/ acquire property for public use with
just compensation.
Section 1. The complaint. — The right of
eminent domain shall be exercised by the
filing of a verified complaint which shall
state with certainty the right and purpose
of expropriation, describe the real or
personal property sought to be
expropriated, and join as defendants all
persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing, so far as practicable, the
separate interest of each defendant. If the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
title to any property sought to be
expropriated appears to be in the Republic
of the Philippines, although occupied by
private individuals, or if the title is
otherwise obscure or doubtful so that the
plaintiff cannot with accuracy or certainty
specify who the real owners are, averment
to that effect shall be made in the
complaint.
You must state in your petition the ff:
 The right and purpose of expropriation
However when the right of expropriation is
expressly provided for by law then, the complaint
need not state with certainty such right such as
the right of LGU to expropriate as provided by
LGC.
 Description of the real property sought to
be expropriated must be mentioned
 All persons claiming or occupying any
part thereof or interest therein should
also be stated in the complaint. Showing
as much as practicable the interest of
each defendant.
So, isuwat na nmu sa complaint ang mga tag iya
of the real properties. Usually expropriation
involved real property. Ex mortagagees (banks),
lessees (occupants) or (under preliminary
attachment) the one attaching it or owned by
govt occupying by private individuals all must be
included.
There are instances wherein the need of the govt
to use of that property is immediate. It is
important for automatic possession by the govt,
ex road widening. Dugay man ang expropriation
proceeding. What is the remedy?
Sec 2 provides for a remedy na d na kinahanglan
mo paabot sa result.
Section 2. Entry of plaintiff upon
depositing value with authorized
government depositary. — Upon the filing of
the complaint or at any time thereafter and
after due notice to the defendant, the
plaintiff shall have the right to take or enter
upon the possession of the real property
involved if he deposits with the authorized
government depositary an amount
equivalent to 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 money,
unless in lieu thereof the court authorizes
the deposit of a certificate of deposit of a
government bank of the Republic of the
Philippines payable on demand to the
authorized government depositary.
The govt can take possession but make deposit
sa bank, govt depository, LAND BANK OR DBP in
the amount equivalent to assess value of the
property sa tax declaration sa likod. Usually 20%
of the market value. Magbuot ana ang assessor
ra pud. That would serve as preliminary deposit.
The deposit is required if the govt will take
immediate possession but if not immediate
preliminary deposit is not required.
If personal property is involved, its value
shall be provisionally ascertained and the
amount to be deposited shall be promptly
fixed by the court.
Usually eminent domain, expropriation involved
real property. If personal property is involved, its
value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed
by the court and submit report to the court.
Panagsa ra man jud mapilde ang govt aning
expropriation, what happened if the govt
eventually wins the case?
Preliminary deposit will serve as advance deposit
or the so called just compensation.
Just in case the govt will lose the case, what will
be the used of preliminary deposit?
Advance payment for damages.
Adunay laing balaod involving expropriation
gihapon, kana sa mga INFRASTRUCTURES. RA
8974. This is a special law, different from the
Rules of Court.
RA 8974 VS. RULE 67
RA 8974 (INFRA) RULE 67
(EXPROPRIATION)
Page | 209

Special law applicable to
NATIONAL PROJECTS
(infrastructure projects)
Deposit kay ibayad sa Deposit kay assess value
owner of the property sa bank
upon taking of the
property based on
market value.
Applicable to projects of
national govt
Case: Republic vs Hingoyon involving NAIA 3. The
bldg was constructed by PIATCO in the NAIA
complex. There was a dispute between National
govt and owner of the lot. According to the owner
it is RA 8974 that would apply while the govt
insist that it should be Rules of Court. The SC
ruled that it should be RA 8974.
Section 3. Defenses and objections. — If
a defendant has no objection or defense to
the action or the taking of his property, he
may file and serve a notice of appearance
and a manifestation to that effect,
specifically designating or identifying the
property in which he claims to be
interested, within the time stated in the
summons. Thereafter, he shall be entitled
to notice of all proceedings affecting the
same.
File MANIFESTATION to the court if he has no
objections to the action.
IF HE HAS OBJECTION FILE AN ANSWER and state
his defenses and objections to the taking of the
property. He is not allowed to file cross claim,
counter claim or third party complaint in order to
avoid delay.
If a defendant has any objection to the
filing of or the allegations in the complaint,
or any objection or defense to the taking of
his property, he shall serve his answer
within the time stated in the summons. The
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
answer shall specifically designate or
identify the property in which he claims to
have an interest, state the nature and
extent of the interest claimed, and adduce
all his objections and defenses to the
taking of his property. No counterclaim,
cross-claim or third-party complaint shall
be alleged or allowed in the answer or any
subsequent pleading.
A defendant waives all defenses and
objections not so alleged but the court, in
the interest of justice, may permit
amendments to the answer to be made not
later than ten (10) days from the filing
thereof. However, at the trial of the issue of
just compensation whether or not a
defendant has previously appeared or
answered, he may present evidence as to
the amount of the compensation to be paid
for his property, and he may share in the
distribution of the award.
Motion to dismiss is not allowed the defendant
should file an answer and his objection to the
action. However, at the trial W/N the defendant
appeared he may present evidence as to the
amount of compensation paid.
Sec 3 ang defendant nga dili mosupak sa
expropriation (the govt has to prove expro is
proper). Sagad man mahitabo ang lalis ari sa
JUST COMPENSATION. Ang presyo nga itanyag
kay barato kaau magulang ra sa pangayo. So ang
uban mo contest. Ang uban gawas mo question
sa JC mo question pud cla sa right sa govt to take
their property. So, if they are going to question
the taking of the property they have to file
answer if not to question but only to payment
need not file an answer. They can still present
evidence as to the JC. Usually what we know is
that if one is declared in default one will lost its
standing but in expropriation is different they can
still present evidence as to the amount of JC (look
last sentence of SEC 3).
Section 4. Order of expropriation. — If
the objections to and the defenses against
the right of the plaintiff to expropriate the
property are overruled, or when no party
appears to defend as required by this Rule,
the court may issue an order of
expropriation declaring that the plaintiff
has a lawful right to take the property
sought to be expropriated, for the public
use or purpose described in the complaint,
upon the payment of just compensation to
be determined as of the date of the taking
of the property or the filing of the
complaint, whichever came first.
The Roc allows multiple appeals. Usa nix a sa
mga actions usu d man jud mo allow ug multiple
allows. However, Roc allows it under Rule 67.
After the court issues an order granting the
expropriation the defendant can file an appeal
from the order of the court so allowed ang
multiple appeals. Part 1 sa proceeding to
determine the propriety of the expropriation
proceeding.
Next is the payment of just compensation. The
payment shall be determined as of the date of
the taking of the property or filing of the
complaint whichever came first.
A final order sustaining the right to
expropriate the property may be appealed
by any party aggrieved thereby. Such
appeal, however, shall not prevent the
court from determining the just
compensation to be paid.
We have discussed it already. This is interlocutory
order but gi allow ang appeal bec the main case
is going on record on appeal is required here.
After the rendition of such an order, the
plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such
terms as the court deems just and
equitable.
Sec 5 is now the determination of Just
Compensation.
Section 5. Ascertainment of
compensation. — Upon the rendition of the
order of expropriation, the court shall
appoint not more than three (3) competent
and disinterested persons as
commissioners to ascertain and report to
the court the just compensation for the
property sought to be taken. The order of
appointment shall designate the time and
place of the first session of the hearing to
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be held by the commissioners and specify
the time within which their report shall be
submitted to the court.
Copies of the order shall be served on the
parties. Objections to the appointment of
any of the commissioners shall be filed with
the court within ten (10) days from service,
and shall be resolved within thirty (30) days
after all the commissioners shall have
received copies of the objections.
In R 32 may appoint commissioners for an
assistance. The court may asked assistance from
experts called commissioners. Expro proceeding
is one of the cases wherein RoC is mandatory to
have commissioners appointed. R32
discretionary, R67 mandatory to have
commissioners not more than 3.
Commissioners are those who are expert in price
of real property, BIR, Real Estate Business also
assessors.
They will compose the committee assigned by
the court for JC determination.
Section 6. Proceedings by
commissioners. — Before entering upon the
performance of their duties, the
commissioners shall take and subscribe an
oath that they will faithfully perform their
duties as commissioners, which oath shall
be filed in court with the other proceedings
in the case. Evidence may be introduced by
either party before the commissioners who
are authorized to administer oaths on
hearings before them, and the
commissioners shall, unless the parties
consent to the contrary, after due notice to
the parties, to attend, view and examine
the property sought to be expropriated and
its surroundings, and may measure the
same, after which either party may, by
himself or counsel, argue the case. The
commissioners shall assess the
consequential damages to the property not
taken and deduct from such consequential
damages the consequential benefits to be
derived by the owner from the public use or
purpose of the property taken, the
operation of its franchise by the
corporation or the carrying on of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
business of the corporation or person
taking the property. But in no case shall the
consequential benefits assessed exceed the
consequential damages assessed, or the
owner be deprived of the actual value of his
property so taken.
Section 7. Report by commissioners and
judgment thereupon. — The court may
order the commissioners to report when
any particular portion of the real estate
shall have been passed upon by them, and
may render judgment upon such partial
report, and direct the commissioners to
proceed with their work as to subsequent
portions of the property sought to be
expropriated, and may from time to time so
deal with such property. The commissioners
shall make a full and accurate report to the
court of all their proceedings, and such
proceedings shall not be effectual until the
court shall have accepted their report and
rendered judgment in accordance with their
recommendations. Except as otherwise
expressly ordered by the court, such report
shall be filed within sixty (60) days from the
date the commissioners were notified of
their appointment, which time may be
extended in the discretion of the court.
Upon the filing of such report, the clerk of
the court shall serve copies thereof on all
interested parties, with notice that they are
allowed ten (10) days within which to file
objections to the findings of the report, if
they so desire.
Section 8. Action upon commissioners'
report. — Upon the expiration of the period
of ten (10) days referred to in the
preceding section, or even before the
expiration of such period but after all the
interested parties have filed their
objections to the report or their statement
of agreement therewith, the court may,
after hearing, accept the report and render
judgment in accordance therewith, or, for
cause shown, it may recommit the same to
the commissioners for further report of
facts, or it may set aside the report and
appoint new commissioners; or it may
accept the report in part and reject it in
part and it may make such order or render
such judgment as shall secure to the
plaintiff the property essential to the
exercise of his right of expropriation, and
to the defendant just compensation for the
property so taken.
Is the court bound by the report of the Com?
No. the report of the Com will not bind the court.
Court may accept in whole or in part the report.
The court may even appoint new Commissioners
if the court is not satisfied with the report made.
Usually the court will accept the report.
Section 9. Uncertain ownership;
conflicting claims. — If the ownership of the
property taken is uncertain, or there are
conflicting claims to any part thereof, the
court may order any sum or sums awarded
as compensation for the property to be paid
to the court for the benefit of the person
adjudged in the same proceeding to be
entitled thereto. But the judgment shall
require the payment of the sum or sums
awarded to either the defendant or the
court before the plaintiff can enter upon
the property, or retain it for the public use
or purpose if entry has already been made.
Section 10. Rights of plaintiff after
judgment and payment. — Upon payment
by the plaintiff to the defendant of the
compensation fixed by the judgment, with
legal interest thereon from the taking of
the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall
have the right to enter upon the property
expropriated and to appropriate it for the
public use or purpose defined in the
judgment, or to retain it should he have
taken immediate possession thereof under
the provisions of section 2 hereof. If the
defendant and his counsel absent
themselves from the court, or decline to
receive the amount tendered, the same
shall be ordered to be deposited in court
and such deposit shall have the same effect
as actual payment thereof to the defendant
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or the person ultimately adjudged entitled
thereto.
Section 11. Entry not delayed by appeal;
effect of reversal. — The right of the
plaintiff to enter upon the property of the
defendant and appropriate the same for
public use or purpose shall not be delayed
by an appeal from the judgment. But if the
appellate court determines that plaintiff
has no right of expropriation, judgment
shall be rendered ordering the Regional
Trial Court to forthwith enforce the
restoration to the defendant of the
possession of the property, and to
determine the damages which the
defendant sustained and may recover by
reason of the possession taken by the
plaintiff.
IN case there is appeal the right of rescission
shall not be affected by the appeal from the
judgement.
Case:
LANDBANK OF THE PHIL vs. Rodrigues May 2010
Just compensation does not mean paying just the
correct amount but also paying the land within
reasonable time from taking or acquisition.
Section 12. Costs, by whom paid. — The
fees of the commissioners shall be taxed as
a part of the costs of the proceedings. All
costs, except those of rival claimants
litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the
owner of the property and the judgment is
affirmed, in which event the costs of the
appeal shall be paid by the owner. (12a)
Section 13. Recording judgment, and its
effect. — The judgment entered in
expropriation proceedings shall state
definitely, by an adequate description, the
particular property or interest therein
expropriated, and the nature of the public
use or purpose for which it is expropriated.
When real estate is expropriated, a
certified copy of such judgment shall be
recorded in the registry of deeds of the
place in which the property is situated, and
its effect shall be to vest in the plaintiff the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
title to the real estate so described for such
public use or purpose. (13a)
Section 14. Power of guardian in such
proceedings. — The guardian or guardian
ad litem of a minor or of a person judicially
declared to be incompetent may, with the
approval of the court first had, do and
perform on behalf of his ward any act,
matter, or thing respecting the
expropriation for public use or purpose of
property belonging to such minor or person
judicially declared to be incompetent, which
such minor or person judicially declared to
be incompetent could do in such
proceedings if he were of age or
competent.
They are just a matter of READING.
…so aduna kay yuta nga imong e-collateral
inkaso ug dili ka kabayad.
RULE 68
Foreclosure of Real Estate Mortgage
Now, there are two kinds of
foreclosure.
1. Judicial Foreclosure of Real Estate
Mortagage
2. Extra Judicial Foreclosure
But before taking about foreclosure, you
know foreclosure is just one of the remedies of
the creditor.
For example you obtain a loan and your
loan was secured by a real estate mortgage.
What are the remedies that the creditor may
avail of when you failed to pay your loan on due
date? Unsa may iyang mga paagi aron ka
makabayad?
These are the remedies that a creditor
may avail to compel you to pay the obligation.
1. File collection of sum of money. Mo
file lang ka ug kaso niya adto sa court.
Unya ug dili jud ka kabayad mao to e-
exectute. Apil tong imong mga property.
Unya the execution will not be limited
only to that property covered by the real
estate mortgage. It could be all
properties
2. Extra judicial foreclosure which is the
usual.
What is Extra Judicial Foreclosure?
This is a foreclosure proceeding made
outside the Court.
This is done by the sheriff or by a notary
public. But remember that Extra Judicial
Foreclosure can only be availed of if there is a
Special Power of Attorney attached or included in
the Real Estate Mortgage allowing or authorizing
the mortgagee to foreclose the property extra
judicially.
Meaning to say, gisabotan na daan. Gi-
apil na didto sa Real Estate Mortgage. Ug dunay
Special Power of Attorney executed by the owner
of the property or by the mortgagor authorizing
the creditor to foreclose extra judicially the
property. Otherwise, kung wala ni siyang SPA,
extra judicial foreclosure cannot be had…dili
pwede…cannot be conducted.
Now, kaning Extra Judicial Foreclosure
under Act No. 3135 (karaan kaayong balaora)
mao ni siyang common nga buhaton. Ngano
man? Kay mas barato. Less expensive that
Judicial Foreclosure. Nganu man? Kay mo file pa
gud ka didto sa korte unya mag apil2x nang
abogado mahal na man na. Whereas kaning
Extra Judicial foreclosure pwede ra ug walay
abogado…pwede ra ug walay abogado. Mo adto
ra ka didto sa sheriff or notary public. Although
abogado ra pod nang notary public pero limitado
man nang iyang trabaho. Igor a man siyang
magpahigayon sa auction sale. So mas minos ug
gasto.
Usbon nako ha kaning extra judicial
foreclosure mao ni siyay kasagaran buhaton ka
yang ubang mga creditor especially kanang mga
Banks/lending companies maniguro man na.
unya ug mo mortage ka, papermahon dayon ka
ug SPA authorizing the creditor or lending
company to foreclose the property extra judicially
in case you failed to pay your obligation. Mao
nang sagad buhaton. Unya ang mahitabo pod
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ana during the auction sale, the highest or the
highest and only bidder mao ra pod ang creditor.
Then kung wala jud na siya masaboti, for
example the creditor did not file a collection of
sum of money wala pod extra judicial foreclosure
so mao nang ari siya sa judicial foreclosure mao
na nang mo apply ang Rule 68 pero seldom ni
siyang gi avail. Kasagaran jud ana extra judicial
foreclosure. Makabasa ta ana sa newspaper.
Daghan kaayo na kay requirement na sa extra
judicial foreclosure aron maka apil sa bidding i-
publish.
Section 1. Complaint in action for
foreclosure. — In an action for the
foreclosure of a mortgage or other
encumbrance upon real estate, the
complaint shall set forth the date and due
execution of the mortgage; its
assignments, if any; the names and
residences of the mortgagor and the
mortgagee; a description of the mortgaged
property; a statement of the date of the
note or other documentary evidence of the
obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and
the names and residences of all persons
having or claiming an interest in the
property subordinate in right to that of the
holder of the mortgage, all of whom shall
be made defendants in the action.
Pareho ni siya ug eminent domain. Imo
gud ni siyang remetehon ning yutaa. So not only
in your complain for foreclosure isulti nimo ang
tanan kinsa tong imong ikiha, tanang mga tao
nga adunay claim niining yutaa. The owner,
kadtong mga gitawag ug junior encumbrancers,
kadtong mga succeeding mortagees.
Kana man gud mag prenda ka ug yuta,
dili man gud buot pasabot nga dili na pod na
nimo pwede ika prenda ug alin…pwede man na
because you are still the owner of the property.
So it could be nga na prenda na ug lain. Kadtong
mga tao nga lain nga imong gi prendahan they
have also claims in the property and they are
called junior encumbrancers. They should be
included in your complaint because they also
have interest over the property.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Q: By the way, ngano man nga i-apil man
ang mga junior encumbrancers?
A: Because according to the SC, if the junior
emcumbrancers are not impleaded in the suit,
there will remain with him the unforeclosed right
of redemption which he can enforce against the
first mortgagee or the purchaser of the
foreclosure sale as he is redemptioner under Sec
29 b.
If he is impleaded as a defendant and the
foreclosure would prosper, he is entitled to be
paid of from the residue after the first mortgagee
shall have been satisfied.
Kana man gud junior mortgagee ka unya
gi apil ka sa kiha tungod kay basin nay sobra sa
halin aw mapiksan ka sa sobra sa utang niadtong
first creditor. Kung walay sobra, aw bukog imoha
 so mao nang i-apil ka.
Section 2. Judgment on foreclosure for
payment or sale. — If upon the trial in such
action the court shall find the facts set
forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff
upon the mortgage debt or obligation,
including interest and other charges as
approved by the court, and costs, and shall
render judgment for the sum so found due
and order that the same be paid to the
court or to the judgment obligee within a
period of not less than ninety (90) days nor
more than one hundred twenty (120) days
from the entry of judgment, and that in
default of such payment the property shall
be sold at public auction to satisfy the
judgment.
The will be trial although kung ikaw
defendant aw wala jud kay dag-anan. Klaro man
jud kaayo na nga wala ka kabayad. Pero usahay
basin aduna kay proof nga nakabayad ka…basin.
Now, after the trial and if the court finds
that you are really indebted to the plaintiff…the
party who filed the complaint for foreclosure, the
court will order you to pay the obligation not less
than 90 but not more than 120 days from the
entry of judgment.
The court will hive you time to pay before
ordering the auction sale. Before subjecting your
property to auction sale the court will give
time to the defendant to pay his obligation
within 90 to 120 days from the time of the
finality of the decision.
This period given by the court to the
defendant to pay off his obligation in order to
avoid having the property sold, you call this
Equity of Redemption.
This is what we call Equity of redemption
because after judicial foreclosure when the
property is sold, the defendant or the owner does
not have the right of redemption. He cannot
redeem the property. Unlike didto sa Rule 39.
Nahinumdom pa mo sa Rule 39 nga inig mahalin
ang property duna pa siyay 1 year? Diri sa
foreclosure, wala…wala kay right of redemption.
Ang naa nimo kanang gitawag ug Equity Right of
Redemption wherein after the court finds that
you are really obligated and the judgment has
become final you are given time to pay off you
abligation within a period not less than 90 days
but not more than 120 days.
If after this period lapse and you still
failed to pay off your obligation, then that would
be the time that the property under the real
estate mortgage shall be sold at auction and you
do not have any right of redemption.
Dunay exception nuon. Kanang sa mga
banks. Kanang sa mga bank, aside sa equity of
redemption, the owner of the property shall also
have the right of redemption of 1 year. But other
than the banks, there is no right of redemption.
Section 3. Sale of mortgaged property;
effect. — When the defendant, after being
directed to do so as provided in the next
preceding section, fails to pay the amount
of the judgment within the period specified
therein, the court, upon motion, shall order
the property to be sold in the manner and
under the provisions of Rule 39 and other
regulations governing sales of real estate
under execution. Such sale shall not affect
the rights of persons holding prior
encumbrances upon the property or a part
thereof, and when confirmed by an order of
the court, also upon motion, it shall operate
to divest the rights in the property of all
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the parties to the action and to vest their
rights in the purchaser, subject to such
rights of redemption as may be allowed by
law.
When the defendant, after being directed
to do so as provided in the next preceding
section, fails to pay the amount then the property
shall be sold in a public auction.
Such sale shall not affect the rights of
persons holding prior encumbrances upon the
property or a part thereof, and when confirmed
by an order of the court, also upon motion, it
shall operate to divest the rights in the property
of all the parties to the action.
Kaning diri sa foreclosure lahi didto sa
Rule 39. Nganu man didto sa Rule 39 – inig ka
halin sa property tagaan ka ug gitawag ug
Certificate of Sale. Dili na manghilabot ang
courty. Ang sheriff nalang na. diskarte nalang na
sa sheriff. Tagaan ka ug Certificate of sale. Ok?
Ug mo lapas na tong right of redemption nga 1
year, ang sheriff maoy mo executed ug Deed of
Sale. Dili manghilabot ang korte.
Pero diri sa foreclosure, lahi sad ni.
Nganu man? After the sale, unya kay wala may
right of redemption gawas lang kung bangko, the
Court is required to confirm…there is a need for
the Court to confirm the validity of the sale upon
motion. And after the finality of the confirmation
or upon the expiration of the period of
redemption if allowed by the law, the purchaser
at auction sale or last redemptioner shall be
entitled now of the possession of the property.
Ang kadtong order sa Court…kadtong gitawag ug
Order of Confirmation shall divest the rights in
the property of all the parties in the action…shall
operate to divest the rights in the property of all
the parties to the action.
Q: Nganong kinahanglan pa man ug order
gikan sa Court?
A: In order to confirm…in order to see that
the sale was valid/ there was no irregularity in
the sale. And the order of the Court confirming
the validity of the sale divests the rights in the
property of all the parties to the action. And once
the order of confirmation becomes final, and then
the person now who bought the property has the
right to possess. So, the purchaser or the last
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
redemptioner may secure a writ of possession
upon motion before the court which ordered the
foreclosure.
Then compare it with Extra Judicial
Foreclosure. Ang Extra Judicial Foreclosure pareho
sa Rule 39 adunay Right of Redemption after the
sale or after the registration of the sale. Pero
kaning Judicial Foreclosure lahi ni siya. General
rule, walay right of redemption. What is given is
Equity of Redemption.
Section 4. Disposition of proceeds of
sale. — The amount realized from the
foreclosure sale of the mortgaged property
shall, after deducting the costs of the sale,
be paid to the person foreclosing the
mortgage, and when there shall be any
balance or residue, after paying off the
mortgage debt due, the same shall be paid
to junior encumbrancers in the order of
their priority, to be ascertained by the
court, or if there be no such encumbrancers
or there be a balance or residue after
payment to them, then to the mortgagor or
his duly authorized agent, or to the person
entitled to it.
Disposition of proceeds. Of course,
unsaon man na pagbahin ang proceeds?
1. The expenses. So taken from the
proceeds shall be the expenses in the
sale. Unsa may nagasto atong
pagpahigayon atong auction sale? Unsa
may mga gastoha?
2. The amount of the loan (ang pinaka
importante).
3. The junior encumbrancers if any (if naa
pay sobra)
4. Residue shall be return to the owner of
the property.(if naa pa jud sobra after the
junior encumbrancers)
Unya kana rabang owner sa property he
could be a third person. Pwede man nga ang
kadtong nangutang wala siyay yuta unya duna
siyay kaila/paryente mao toy iyang himuon nga
mortgagor. Diba? Mao nang uban. Mao nay
awayan usahay sa mga magsuon. Nganu man?
Dunay igsuon nanghilam sa bangko unya kay
pinangga sa ginikanan, ang ginikanan maoy
gihimo nga mortgagor. Narimate man na. unsa
may buhaton sa ubang mga igsuon? Tuk-on tong
igsuon usa   
Section 5. How sale to proceed in case
the debt is not all due. — If the debt for
which the mortgage or encumbrance was
held is not all due as provided in the
judgment as soon as a sufficient portion of
the property has been sold to pay the total
amount and the costs due, the sale shall
terminate; and afterwards as often as more
becomes due for principal or interest and
other valid charges, the court may, on
motion, order more to be sold. But if the
property cannot be sold in portions without
prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and
the entire debt and costs shall be paid, if
the proceeds of the sale be sufficient
therefor, there being a rebate of interest
where such rebate is proper.
If the obligations are not all due, only a
portion of the property can be sold under Sec. 5.
Section 6. Deficiency judgment. — If
upon the sale of any real property as
provided in the next preceding section
there be a balance due to the plaintiff after
applying the proceeds of the sale, the
court, upon motion, shall render judgment
against the defendant for any such balance
for which, by the record of the case, he may
be personally liable to the plaintiff, upon
which execution may issue immediately if
the balance is all due at the time of the
rendition of the judgment; otherwise; the
plaintiff shall be entitled to execution at
such time as the balance remaining
becomes due under the terms of the
original contract, which time shall be stated
in the judgment.
In case of deficiency judgment…meaning
to say, in case the proceeds of the sale are not
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enough to pay off the obligation, the creditor can
run after the debtor for the deficiency. Take note:
DEBTOR. Meaning, if the property is owned by
another person the creditor cannot run after the
mortgagor but only the debtor himself.
So imong Makita nga although nay sobra,
gi uli didto sa owner. Pero if naa sad kuwang,
pwede pod siya paninglan.
Section 7. Registration. — A certified
copy of the final order of the court
confirming the sale shall be registered in
the registry of deeds. If no right of
redemption exists, the certificate of title in
the name of the mortgagor shall be
cancelled, and a new one issued in the
name of the purchaser.
Where a right of redemption exists, the
certificate of title in the name of the
mortgagor shall not be cancelled, but the
certificate of sale and the order confirming
the sale shall be registered and a brief
memorandum thereof made by the registrar
of deeds upon the certificate of title. In the
event the property is redeemed, the deed
of redemption shall be registered with the
registry of deeds, and a brief memorandum
thereof shall be made by the registrar of
deeds on said certificate of title.
If the property is not redeemed, the final
deed of sale executed by the sheriff in favor
of the purchaser at the foreclosure sale
shall be registered with the registry of
deeds; whereupon the certificate of title in
the name of the mortgagor shall be
cancelled and a new one issued in the name
of the purchaser.
This is about the registration of the…
certified copy of the order of the court confirming
the sale shall be registered in the Registry of
Deeds.
The Certificate of Title in the name of the
mortgagee shall be cancelled and a new one
shall be issued in the name of the purchaser.
Of course, when the right of redemption
exists (this is for BANKS only) the Certificate of
Title in the name of the mortgagor shall not be
cancelled unless after the expiration of the right
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
to redeem. Sa ato pa kung bangko, aduna kay
equity of redemption and aduna pa jud kay right
of redemption. Adto nalang mo sa bangko
pamrenda…aw mahal man sad diay noh? 
Section 8. Applicability of other
provisions. — The provisions of sections 31,
32 and 34 of Rule 39 shall be applicable to
the judicial foreclosure of real estate
mortgages under this Rule insofar as the
former are not inconsistent with or may
serve to supplement the provisions of the
latter.
RULE 69
Partition
Section 1. Complaint in action for
partition of real estate. — A person having
the right to compel the partition of real
estate may do so as provided in this Rule,
setting forth in his complaint the nature
and extent of his title and an adequate
description of the real estate of which
partition is demanded and joining as
defendants all other persons interested in
the property.
Partition is the complaint that a person
may file to demand partition. So this presupposes
that he is a co-owner. In order for an action for
partition to prosper, the complainant or the
plaintiff must be able to prove that co-ownership
exists. He must prove that the property subject
to the complaint is under co-ownership and that
partition is proper. Because there are instances,
you have learned that in your civil law, that
partition is prohibited within a certain period.
Under the civil code, co-owners may
agree that the property may not be subjected to
partition within a period of 10 years. The donor or
the testator may also state in the will that the
property subject to the will cannot be subjected
to partition of 20 years. So if there is such
prohibition, then your action shall not prosper.
That is section 1. You have to allege in
your complaint all these facts: that partition
exists and that you have the right to compel
partition because if partition is prohibited, then
you do not have the right to compel partition.
Kasagaran man gud ani…kabalo mo asa dapit
ang sagad nga kinihaay sa partition? Kanang sa
inheritance ay. Unya mahitabo gani na nga dunay
usa or pipila ka mga igsoon duna gyud nay kaso.
There are two kind of partition.
1. Extra-jidicial partition; and
2. Judicial partition
Kaning extra-judicial partition, mao unta
ni pinaka nindot. Nagno man? Because there is
NO participation of a lawyer and everybody is
contented kay nagsabot man sila kung unsaon
pagbahin ang property. Kaning sa extra-judicial
partition, this is the best. Why? Less expensive
and walay relasyon nga madaot ani. Pila may
nagpatay tungod anang yuta? Ha? Daghan.
Murag as if naa silay phonan nga kabilin man na
sa ginikanan. Now, unsa may hinungdan ana?
Ang kadalo!
The moment gani nga adunay igsuon nga
mo take advantage, mao na gyud na. less
expensive kay dili man mo mo abot sa korte.
Kung mo abot na gani sa korte, aw ang abogado
ana mahimo nang usa sa mga heirs.  mag una
pa na siya ug kubra sa iyang bahin. 
Whereas kung extra-judicial partition, all
you have to do is to execute a document. Extra
judicial declaration of heirs and settlement
– that is what you are going to execute. Anha ra
diha maka kwarta ang abogado…sa pag notary
ug sa pagbuhat.
Section 2. Order for partition and
partition by agreement thereunder. — If
after the trial the court finds that the
plaintiff has the right thereto, it shall order
the partition of the real estate among all
the parties in interest. Thereupon the
parties may, if they are able to agree, make
the partition among themselves by proper
instruments of conveyance, and the court
shall confirm the partition so agreed upon
by all the parties, and such partition,
together with the order of the court
confirming the same, shall be recorded in
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the registry of deeds of the place in which
the property is situated.
A final order decreeing partition and
accounting may be appealed by any party
aggrieved thereby.
In other words, even if the case has been
filed in court, there could still be amicable
settlement.
Kahinumdom ko naka handle ko ug kaso
nga partition. And usa ni claim nga ang katung
niadtong yutaa napalit niya kay gibaligya sa
papa. Mao nay sagad gud. Napalit na niya kay sa
buhi pa ang ilang ginikanan naka perma ug deed
of sale pero ang ubang igsoon ingon nga dili na
tinuod. So I told them nga husayon…amicable
settlement..kay kung mahitabao na nga ila jud
ikuan sa korte possible na nga ang ilang gasto sa
kaso mas dako pa kaysa sa bili sa yuta. Pero dili
man jud magkasinabot bisan pa lubagon ang
kamot so decisionan. They were not contented by
the decision so they went to the RTC hangtod
abot pa jud didto sa CA. kdako na ang gasto. So,
Sec. 2, there could still be amicable settlement
on partition.
Then partition…this is another action.
Aside from expropriation, this is another action
wherein there could be multiple appeals.
So an order granting partition or ordering
partition under accounting (dili ko ka klaro sa
word) may be appeald by any party thereby.
Two stages of partition:
1. Is to determine whether co-
ownership exists and if partition is
proper;
2. How to divide the property with the
help of commissioners.
General Rule: remember that the right
to demand partition does not prescribe.
Except: where one of the interested
parties openly and adversely occupies the
property without recognizing the co-ownership in
which case, acquisitive prescription may set in.
So right to ask partition does not
prescribe but the moment that one of the co-
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
owners claims the entire property as his, then
acquisitive prescription may set in. so kung
adunay usa sa inyong igsuon mi claim nga siyay
tag-iya anang tanan, ikiha gyud na nimo dayon
kay kung dili ma iya na siya because of
prescription.
Section 3. Commissioners to make
partition when parties fail to agree. — If the
parties are unable to agree upon the
partition, the court shall appoint not more
than three (3) competent and disinterested
persons as commissioners to make the
partition, commanding them to set off to
the plaintiff and to each party in interest
such part and proportion of the property as
the court shall direct.
If the parties are unable to agree upon
the partition, the court now will appoint
commissioners. This is now an instance wherein
the Court in mandated to appoint commissioners.
That’s compulsory just like expropriation. The
court has no discretion.
Section 4. Oath and duties of
commissioners. — Before making such
partition; the commissioners shall take and
subscribe an oath that they will faithfully
perform their duties as commissioners,
which oath shall be filed in court with the
other proceedings in the case. In making
the partition, the commissioners shall view
and examine the real estate, after due
notice to the parties to attend at such view
and examination, and shall hear the parties
as to their preference in the portion of the
property to be set apart to them and the
comparative value thereof, and shall set
apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof.
The commissioners take an oath and
then they shall examine and view the real
property after due notice to the parties of such
view and examination. Meaning, ocular
inspection.
Then after, shall hear the parties as to
their preference in the portion of the property to
be set apart and shall set apart the same to the
parties in lots or parcels as will be most
advantageous and equitable, having due regard
to the improvements, situation and quality of the
different parts thereof.
Sagad man gud ana ang disagreement
kung asa ang iyang bahin. Ka ang uban ana
nakatukod na ug balay. Mo ingon na nga “mano,
kaning akong gipoy-an ari nalang ni nako kay
alangan man ug mag raffle2x ta unya lahi unya
ang akoang ma kuan...”. ang uban kay mo ingan
nga “dili2x! patasaon ta gyud ni. Ato guyd ning e-
raffle. So aduna nay dis agreement. So, usa pod
na sa tan-awon ang improvements. Kay dili man
magpabintaha. Ang ubang pod, tuyoon jud pod
ug pamintaha.
Section 5. Assignment or sale of real
estate by commissioners. — When it is
made to appear to the commissioners that
the real state, or a portion thereof, cannot
be divided without prejudice to the
interests of the parties, the court may
order it assigned to one of the parties
willing to take the same, provided he pays
to the other parties such amount as the
commissioners deem equitable, unless one
of the interested parties asks that the
property be sold instead of being so
assigned, in which case the court shall
order the commissioners to sell the real
estate at public sale under such conditions
and within such time as the court may
determine.
So for example, ang property dia diri sa
City unya ibutang lang nato 100 sq. m. unsa 10
mo ka mag suon. Naa diri 100 sq. m. daku na
kaayo na noh? Mahal gud ning yuta diri. 13,000
per sq. m? just imagine 100…millions na na. dba?
Unya karon, unsaon man na pagbahin?
It could be that only one of them maoy
mo occupy ana pero mo bayad siya sa iyang mga
co-heirs. But the moment nga naa mo ingon nga
“ahhh walay manag iya ani. Puro ni dili ato,
puslan man nga walay makapanag-iya ani
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ibaligya nalang ni ug laing tao unya atong
bahinon ang halin.” Aw pwede pod.
Section 6. Report of commissioners;
proceedings not binding until confirmed. —
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the
parties, or the sale of the same. Upon the
filing of such report, the clerk of court shall
serve copies thereof on all the interested
parties with notice that they are allowed
ten (10) days within which to file objections
to the findings of the report, if they so
desire. No proceeding had before or
conducted by the commissioners and
rendered judgment thereon.
The commissioners now shall render
report. Just the same. The court ma accept the
entire report or just partially or ma reject the
entire report and may even appoint a new
commissioners. Pero usuall, the court will accept
the report.
Kinsa may mahimo anang commissioner?
Sagad ana kanang mga geodetic engineers. Unya
lagi ka yang tawag nila kay mga commissioners,
naa pod na silay commission.
Section 7. Action of the court upon
commissioners report. — Upon the
expiration of the period of ten (10) days
referred to in the preceding section or even
before the expiration of such period but
after the interested parties have filed their
objections to the report or their statement
of agreement therewith the court may,
upon hearing, accept the report and render
judgment in accordance therewith, or, for
cause shown recommit the same to the
commissioners for further report of facts;
or set aside the report and appoint new
commissioners; or accept the report in part
and reject it in part; and may make such
order and render such judgment as shall
effectuate a fair and just partition of the
real estate, or of its value, if assigned or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sold as above provided, between the
several owners thereof. (7)
Section 8. Accounting for rent and
profits in action for partition. — In an action
for partition in accordance with this Rule, a
party shall recover from another his just
share of rents and profits received by such
other party from the real estate in
question, and the judgment shall include an
allowance for such rents and profits.
Kanang partition, sagad ana adunay
kaloha. Mo file ka ug action for partition, adunay
kaloha na. unsa may aloha ana? Accounting sa
profits.
In an action for partition in accordance
with this Rule, a party shall recover from another
his just share of rents and profits received by
such other party from the real estate in question.
Section 9. Power of guardian in such
proceedings. — The guardian or guardian
ad litem of a minor or person judicially
declared to be incompetent may, with the
approval of the court first had, do and
perform on behalf of his ward any act,
matter, or thing respecting the partition of
real estate, which the minor or person
judicially declared to be incompetent could
do in partition proceedings if he were of
age or competent.
Of course the guardian will represent the
ward.
Section 10. Costs and expenses to be
taxed and collected. — The court shall
equitably tax and apportion between or
among the parties the costs and expenses
which accrue in the action, including the
compensation of the commissioners, having
regard to the interests of the parties, and
execution may issue therefor as in other
cases.
So the expenses shall be shouldered by
the parties including the compensation of the
commissioners.
Section 11. The judgment and its effect;
copy to be recorded in registry of deeds. —
If actual partition of property is made, the
judgment shall state definitely, by metes
and bounds and adequate description, the
particular portion of the real estate
assigned to each party, and the effect of
the judgment shall be to vest in each party
to the action in severalty the portion of the
real estate assigned to him. If the whole
property is assigned to one of the parties
upon his paying to the others the sum or
sums ordered by the court, the judgment
shall state the fact of such payment and of
the assignment of the real estate to the
party making the payment, and the effect
of the judgment shall be to vest in the
party making the payment the whole of the
real estate free from any interest on the
part of the other parties to the action. If
the property is sold and the sale confirmed
by the court, the judgment shall state the
name of the purchaser or purchasers and a
definite description of the parcels of real
estate sold to each purchaser, and the
effect of the judgment shall be to vest the
real estate in the purchaser or purchasers
making the payment or payments, free from
the claims of any of the parties to the
action. A certified copy of the judgment
shall in either case be recorded in the
registry of deeds of the place in which the
real estate is situated, and the expenses of
such recording shall be taxed as part of the
costs of the action.
The judgment shall state the boundaries
of the real estate. If gi-assign siya then mo bayad
sia sa other parties.
Section 12. Neither paramount rights nor
amicable partition affected by this Rule. —
Nothing in this Rule contained shall be
construed so as to prejudice, defeat, or
destroy the right or title of any person
claiming the real estate involved by title
under any other person, or by title
paramount to the title of the parties among
whom the partition may have been made,
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

nor so as to restrict or prevent persons unlawful deprivation or withholding of

holding real estate jointly or in common Section 1. Who may institute possession, bring an action in the proper
from making an amicable partition thereof proceedings, and when. — Subject to the Municipal Trial Court against the person or
by agreement and suitable instruments of provisions of the next succeeding section, a persons unlawfully withholding or depriving of
conveyance without recourse to an action. person deprived of the possession of any possession… (the second part is for Unlawful
Nothing in this Rule contained shall be land or building by force, intimidation, detainer.) Take note that these two actions are
construed so as to prejudice, defeat, or destroy threat, strategy, or stealth, or a lessor, different.
the right or title of any person claiming the real vendor, vendee, or other person against So, when you file an action for Unlawful
estate…meaning to say, after the partition the whom the possession of any land or Detainer, you cannot alleged that there was force
right of the other persons shall not be affected building is unlawfully withheld after the or intimidation. In the same way that when you
such as the right of the mortgagee if the expiration or termination of the right to file an action for Forcible Entry, you cannot
properties are mortgaged. Sa ato pa, bisan hold possession, by virtue of any contract, alleged that the possession of the defendant was
nabahin na the right of the mortgagee shall not express or implied, or the legal acquired by virtue of lease or any contract. Ka
be affected. representatives or assigns of any such kung mo ingon gani ka ug Forcible Entry wala jud
lessor, vendor, vendee, or other person, nay contract.
Section 13. Partition of personal may, at any time within one (1) year after
property. — The provisions of this Rule shall such unlawful deprivation or withholding of The action should be filed within 1 year.
apply to partitions of estates composed of possession, bring an action in the proper Forcible entry shall be filed within 1 ear
personal property, or of both real and Municipal Trial Court against the person or from dispossession; whereas
personal property, in so far as the same persons unlawfully withholding or depriving Unlawful detainer should be file after
may be applicable. of possession, or any person or persons demand was made.
Then what about personal property? Kani claiming under them, for the restitution of
usa pod ni sa awayan. Mas labaw pa ni kaysa sa such possession, together with damages Distinctions between Forcible Entry and
real property kay ngano man? Kay makawat man and costs. Unlawful Detainer:
ni. Inig kamatay anang ginikanan aw wala na.
kadtong refrigerator ma adto na sa pikas. Q: Who can file an action of Forcible Entry Forcible Entry Unlawful Detainer
Kadtong tv. Mao ni. Mas gubot ni siya kay dali and Unlawful Detainer?  The possession  The possession
ra… labi na kanang mga jewelry dali kaayo ni A: a person deprived of the possession of of the of the defendant
mawagtang. Mo ingon, “asa na man di ay tong any land or building by force, intimidation, defendant is is at the
kwentas ni papa dai nga baga kaayo?” wala na threat, strategy, or stealth (this is for Forcible unlawful from beginning lawful
labi na kung adunay anak nga addict. “Gi sheriff.” Entry). the very but later on it
 Ang ubang mga abogado inig alleged nila beginning coz became illegal by
sa ilang complaint for Forcible Entry hutdon jud ni he acquired reason of the
nilang tanan – force, intimidation, threat, possession of termination of
RULE 70 strategy, or stealth. Walay problema ang force, the property by his right to the
Forcible Entry and Unlawful Detainer intimidation or threat kay pwede man na magka- force, possession of the
uban. Pero kung pakapinan na na nimo ug intimidation, or property.
This is one Rule that you should take note strategy ug stealth dili na na pwede i-uban nimo. by stealth,
because this is very important. There are several Coz when ou sa stealth, walay force or strategy. threats or
cases pending in court about ejectment. You Stealth gani murag gi sekreto ra ba ka ba. strategy.
should take note of this rule. or a lessor, vendor, vendee, or other
Forcible Entry and Unlawful Detainer. person against whom the possession of any land
There are two (2) actions here. Forcible Entry is or building is unlawfully withheld after the
different from Unlawful Detainer although these expiration or termination of the right to hold
actions are called ejectment. Mao nang ubang possession, by virtue of any contract, express or
abodado, kung dili gani na sila sure kung Forcible implied, or the legal representatives or assigns of
Entry ban a or Unlawful Detainer, title-an lang na any such lessor, vendor, vendee, or other person,
ug ejectment. may, at any time within one (1) year after such
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

 The Rule does  Demand to mga baboy. inyong balay, wala na siya nangangkon nga siya
NOT require vacate is Pananglitan gi ang tag-iya. So kung dili siya maka abang file-an
prior demand. REQUIRED violate ni nimo siya nimo ug ejectment. Pero kung mo lapas na
Demand to although, there nga condition gani ug 1 ear gikan sa demand, dili na ka maka
vacate is NOT are exemptions. then it can be a file ug ejectment. What you can file is accion
required is ground for publiciana. In Accion Pibliciana, what it involves is
forcible entry. Demand to ejectment. issue of possession. So, sa inato nga pagka
vacate is NOT istorya mao na siya ang pan-us nga ejectment.
required such as Dili na man pwede ang Ejectment so mo file na
when the ka ug Accion Publiciana or recover of possession.
contract has
already expired. Distinction between Accion Publiciana vs.
Meaning to sa, Accion Reinvindicatoria:
the reason of the
ejectment id the Accion Publiciana Accion
expiration of the Reinvindicatoria
contract.  You can file an  This involves
You may ask, action even if recovery of
aside sa you are not the possession and
expiration of owner. It ownership.
contact aduna pa involves only
ba di ay lain nga  Plaintiff must  Plaintiff need not possession. The object here is to
reason nga prove that he have prior recover possession of
pwede nimo sia was in prior physical Although most likely real property as an
papahawaon possession of possession. you are the owner owner. Most likely, the
bisan wala pa na the premises. because kana man defendant here is
expire ang gung right to possess, claiming ownership
contract? YES.  The one year  The one year one of the attributes is over the property.
One of these is period is period is counted right of ownership.
the violation of counted from from demand. In
the condition. the case of several  Read case: Republic vs. Sunvar Realty
Like prohibition dispossession. demands then Development Corporation, June 20,
of sub-lease pero the date of the 2012. This ruling tells us the elements of
nanawat gihapon last demand. unlawful detainer.
ug boarders that
os a violation of
the contract and Kaning Forcible Entry ug Unlawful By the way, there is another instance
ou can be Detainer this is what you called in laten Accion wherein…aside from contract…although the
ejected even if Interdictal. What do you mean by Accion parties did not enter into a contract, but the stay
the contact has Interdictal? of the defendant is by tolerance of the plaintiff.
not yet ben But take note that tolerance must be present
terminated. After 1 year from dispossession or after 1 from the start of the occupation because if from
Another is year from demand, you cannot anymore the start there was no tolerance then the action
kanang ejectment but you can file Accion Publiciana – is not unlawful detainer but forcible entry.
residential lang mao ni siyang over due nga ejectment. Bahaw na For example aduna kay yuta. Dia ka
gyud ni ha? Dila ni siya nga ejectment. nagpuyo diri sa Cebu City unya ang imong yuta
ka pwede Kani man gud issue sa ejectment, this toa sa Mandaue unta ka tagsa lang ka maka
makapamuhi ug involves possession. Kanang nangabang diha sa suroy2x didto kay busy kaayo ka. Unya one time
Page | 219

imong gibisita didto tua nay nagpuyo. What is the
manner of entry of the occupant. That is by
stealth diba and that is a cause of action for
forcible entry. Pero imo lang gipasagdan/ tolerate.
Take note that ang pagtolerate nimo wala sa
sinugdanan so ang imong cause of action ana
should be forcible entry.
Unya imong gi tolerate. Pananglitan ni
abot na ug 5 years. Unya karon imong
gipadalhan ug demand to vacate unya gi file-an
nimo ug Unlawful Detainer. Ibutang nato 1
months gikan sa pag demand.
Q: Will the case for unlawful detainer
prosper?
A: NO. ni lapas na because the 1 year period
shall be counted not from the date of demand
but from the date of the entry.
Unsa may example ana nga ang
tolerance nag start from the date of entry?
For example, duna ka roy amigo gikan
sa Compostella Valley. Wala na siyay kapuy-an. Ni
ingon nga “classmate, clamate man jud ta. Naa
man kay lugar loyo sa inyo pwede atong
pabuhatna ug payag2x? Walay problema
classmate…walay problema pero kung akong
gamiton classmate mo vacate ka ha? Walay
problema classmate…no problem.    karon
walay problema. But later on imo na kunohay
gamiton or labi na gyud kung ang imohang
relationship mo turn sour, unya imo na siyang
papahawaon…mao na siyay tolerance. Mao na
siyay masakop sa ejectment. For example 10
years na siya nagpuyo diha and now you want
him to be ejected. You have to make a demand to
vacate and you can file ejectment – unlawful
detainer within 1 year from demand. Your cause
of action is unlawful detainer. Why? Because he’s
stay there is by tolerance and the tolerance was
present from the very beginning of his entry.
What are the Elements of Unlawful
Detainer?
Initially the possession of the property by
the defendant was by contract or by tolerance of
the plaintiff then eventually the possession
became illegal upon plaintiff’s notice to the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defendant of the termination of the latter’s right
of possession.
Take note: that demand to vacate in
unlawful detainer is jurisdictional except when
the reason of the ejectment is by expiration of
contract. Meaning, if you filed an ejectment case
without demand to vacate, your case will be
dismissed.
Nganong e-dismissed man? Because
demand to vacate is an element of unlawful
detainer.
Pero kung mo file ka ug Accion
Publiciana, dili na material ang demand. So ayaw
nalang ug tilte-li nang imong kaso ug unlawful
detainer. Title-li nalang na ug recovery of
possession. That means that is Accion Publiciana.
Coz if you will title it unlawful detainer, then the
court will naturally determined whether there
was demand to vacate.
Unya kung recovery of possession pod na
instead of demand, what will matter would be the
amount of the assessed value of the property.
 If the assessed value is more than 20,000
then the action shall be filed in the RTC.
 If it is 20,000 or less, then it should be in
the first level court.
So kung dili ka mo alleged ug demand to vacate,
so mo ingon nga…aw tingali accio publiciana
noh? coz it is the allegation in the body that will
control. Bisan gi title-lan diha ug unlawful
detainer unya kay wala may demand…walay
allegation that there was demand to vacate aw
accion publiciana ni. And now the court will now
look into the allegation of the assessed value.
Kung wala gani nimo gibutang and assessed
value then the court now will dismissed the case.
If it is unlawful detainer or forcible entry,
assessed value is immaterial. Regardless of
assessed value. Bisan millions pa na basta ang
imong cause of action is unlawful detainer or
forcible entry, the same would fall under the first
level court.
DECEMBER 14, 2012
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
SECTION 1. Who may institute proceedings,
and when.—Subject to the provisions of the
next succeeding section, a person deprived
of the possession of any land or building by
force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or
other person against whom the possession
of any land or building is unlawfully
withheld after the expiration or termination
of the right to hold possession, by virtue of
any contract, express or implied, or the
legal representatives or assigns of any such
lessor, vendor, vendee, or other person may
at any time within one (1) year after such
unlawful deprivation or withholding of
possession, bring an action in the proper
Municipal Trial Court against the person or
persons unlawfully withholding or depriving
of possession, or any person or persons
claiming under them, for the restitution of
such possession, together with damages
and costs
We will continue our discussion in Forcible Entry
and Unlawful detainer. Now, these two actions
are different. Although both of them are called
Ejectment Case but they are different.
To determine what action to file, whether forcible
entry or unlawful detainer you look at the
manner of entry of the defender:
 If the entry into the property is
illegal (illegal in the sense that he
entered into the property by means
of force intimidation, strategy, threat,
or stealth) then the action to be filed
is forcible entry.
 On the other hand when the entry is
legal from the start such as there was
a contract of lease between the
plaintiff and the defendant or that
there was tolerance from the very
beginning although later on the
possession of the defendant becomes
illegal, for example the contract of
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lease has already expired or that he
violated the condition of lease, the
action would be unlawful detainer.
SEC. 2. Lessor to proceed against lessee
only after demand.—Unless otherwise
stipulated, such action by the lessor shall
be commenced only after demand to pay or
comply with the conditions of the lease and
to vacate is made upon the lessee, or by
serving written notice of such demand upon
the person found on the premises, or by
posting such notice on the premises if no
person be found thereon, and the lessee
fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in
the case of buildings.
Now section 2, this is applicable only to unlawful
detainer because it only talks about lessor. Now
under section 2, an action for unlawful detainer
(an action against the lessees) can only be filed
in court only after demand to vacate AND to pay
the rentals (it must not be “OR”, it should be
“AND”).
Of course if there is no rental, for example you
just let the defendant stay by tolerance, let say
he is your relative you do not demand him to pay
the rental because there is no rental after all
being agreed upon, what are you to do is send a
demand to vacate.
Q: How are you going to serve the demand to
vacate?
A: It can be served personally upon the
defendant. But if the defendant cannot be found
at the premises and if there is no person found in
the premises then you can post the demand in
the premises. Or you can serve it on such person
found in the premises provided that he is
authorized by the defendant to receive such
communication. If you want to be sure so that
the defendant cannot deny that there was no
such demand made upon him, you can send your
demand letter through registered mail.
Q: Should the demand be in writing?
A: If you look at section 2 there is no mention
that the demand must be in writing if personally
made upon the defendant. But if the defendant is
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
not around then how else can you make a
demand? By written notice or by serving notice of
such demand upon the person found in the
premises.
So, by written notice or demand or by
posting such notice.
I would like to repeat section 2 does not
specifically provide that the demand must be in
writing if the demand is made personally upon
the defendant. But if the demand is served upon
another person who is found in the premises then
it must be in writing. Or if there is no person
found in the premises it must be posted in the
premises.
However, kung gusto jud ka maniguro even if the
demand was made personally upon the
defendant it would be advisable to make it in
writing, kai kung oral ra na nimu sayon ra na pag-
deny. Whereas kung imu na gipapirma dili siya
basta-basta maka-deny tungod kai his signature
was found in the demand letter. Mas maayo
pajud kung registered mail. Ngano man? Tungod
kai duna kai registry receipt unya you can have a
certification from the postman that he served the
demand upon the defendant. That is what
lawyers usually do; they make a demand upon
the defendant in writing thru demand letters.
Remember that as far as unlawful detainer is
concern demand is jurisdictional, meaning if
you do not make a demand to vacate upon the
defendant before filing the case in the court your
case shall be dismissed.
Q: Nganong i-dismiss man?
A: Kai wai jurisdiction.
Q: Nganong wa man jurisdiction ang court?
A: Tungod kai:
1. In the first place that is a requisite
(demand)
2. Kung dili ka muhatag ug demand the
action is considered action publiciana.
Unya you remember in accion
publiciana that the assessed value of
the property should be alleged
because it determines the jurisdiction
of the court.
Q: What about in forcible entry, is demand to
vacate required?
A: Now, the answer is No. Pero ang ubang
adogado maniguro gihapon, bisag forcible entry
ila gihapon na tagaan ug demand letter ang
defendant.
But Take note that the one year prescriptive
period for the filing of the action as far as
forcible entry is concerned is not counted
from the giving of the demand letter but
from the date of entry. So, bisag muhatag ka
ug demand letter, ang date sa paghatag sa
demand letter is not the reckoning period for the
counting of the one year period, it is the date of
entry.
Now, unsa man nang accion publiciana? After
the lapse of one year period, either forcible entry
or unlawful detainer, you cannot anymore file
such action. So, unsa man imu i-file? Mao nang
ACCION PUBLICIANA, recovery of possession.
Ang ma-involve man gud sa forcible entry ug
unlawful detainer, possession ra gyud; who
among the parties has the right to possess
physical possession over the property.
Unya kung lapas na siya ug one year then dili
naka ka-file ug forcible entry ug unlawful
detainer. What are you going to file is accion
publiciana. Sa ato pa inato pagkaistorya kanang
accion publiciana aron sayon ra sa pagsulod sa
imyo ulo mao na siya ang pan-os nga unlawful
detainer ug forcible entry.
Now ang issue diha possession, pananglitan
nangabang ka, panaglitan duna kay balay nga
gipa-abangan unya wala kabayad ug abang, imu
gipadalhan ug demand to vacate. But the
problem is you failed to file the case for unlawful
detainer for one year period, so unsa man nimu
papahawa sa iya wa man siya mangangkon nga
siya ang tag.iya. Imu ra pasagdan kai di naman
ka ka-file ug unlawful detainer? Kai ang imu man
lang nahibalhan kai unlawful detainer lang i-file
basta mangabang. Puede na nimu siya
mapapahawa but dili na unlawful detainer kundi
accion publiciana.
Now, unsa man ato nga kaso nga accion
reinvidicatoria? Lahi sad to siya, that is the
case you are going to file if the defendant claims
ownership over the property. Because accion
publiciana presupposes that what you are going
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to recover is only possession while in accion
reinvidicatoria what are you going to recover is
both possession and ownership, so that
presupposes that the defendant is claiming
ownership over the property...you call it accion
reinvidicatoria.
So, of course kung nangangkon na siya nga siya
ang tag-iya, pananaglitan dunay ni-entra na diha
(forcible entry), unya wa nimu file-i dayon ug
kaso, then file-an nimu ug accion reinvidicatoria
recovery of possession and ownership.
Now, in ejectment cases in forcible entry and
unlawful detainer the issue to be resolve is only
physical possession or we call it POSSESSION
DE FACTO not possession de jure. Kanang
possession de jure mao nang possession that you
are the owner. Possesion de facto (physical
possession); you can possess that premises even
if you are not the owner.
So, for example nangabang ka unya sakton kag
abang pero papahawaon ka, so unsa man lalisan
ana, possesion de facto or possession de jure?
Possession de facto. So even if you are not the
owner you have the right of possession de facto.
General rule: Ownership or title over the
property is not an issue or is not to be pass upon
by the court. The trial court does not have the
power to rule on the issue of ownership.
However: by way of exception where the issue
of ownership is related or is important to
determine as to who is entitled to possession
over the property then the court may temporarily
pass upon the issue on ownership.
So, general rule: in ejectment cases as a rule
the trial court does not have power or jurisdiction
to rule on issue of ownership. However, by way
of exception when the determination the issue of
ownership is important or indispensable for the
court to determine who is entitled to possession
de facto, then the trial court can make a
provisional determination / temporary
determination as to the issue of ownership.
TEMPORARY, in the sense that its finding is not
binding/ final. In the other words the party can
still litigate their claims of ownership in a
separate action. There is NO RES JUDICATA, the
issue of res judicata will not set in if the parties
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
would decide to have their conflicting claims of
ownership litigated in a separate action.
Pananglitan dunay ejectment, P vs. D, unya si D
ni-claim na owner pud siya. Si Mr. P gi-file-an niya
ug case nga forcible entry si Mr. D, kai lagi si P ni-
claim na siya ang tag-iya by reason of sale ( iya
na napalit), unya si Mr. D nisud sa property
claiming also to be an owner by inheritance. So,
there is conflicting claims of ownership. The court
in determining who is entitled to the possession
may temporarily pass upon or rule upon the issue
of ownership.
But the ruling of the trial court as regard to the
issue of ownership is only provisional. Meaning
it’s not permanent, it will not create res judicata.
So, for example if eventually Mr. D would file a
separate action such as quieting of title in RTC or
even in the first level court there is no issue of
res judicata.
Q: Nganong wa man re judicata?
A: Tungod kai ang katong pagdetermine sa trial
court didto sa ejectment as regard to the
ownership is only provisional or temporary.
Now, as regard to demand to vacate
jurisprudence tells us that if the plaintiff has
made several demands upon the defendant then
the date of the last demand would be the
reckoning point of the counting of the one year
period.
General rule: In unlawful detainer demand to
vacate is important. It is jurisdictional
requirement.
Exceptions (instances wherein demand to
vacate may be dispensed with in unlawful
detainer cases): When the contract of lease
between the parties has already expired.
Remember when the contract of lease is monthly
basis and at the end of the moth the contract is
over. In this instance when the contract of lease
is already terminated then the plaintiff can file an
ejectment case against you even without prior
demand. But again petitioners di mu-compiansa
magpadala gihapon ug demand letter.
Four ways on how to make a demand:
1. Personally
2. By posting on the premises
3. By serving written demand upon any person
found in the premises
4. By registered mail
SEC. 3. Summary procedure.—Except in
cases covered by the agricultural tenancy
laws or when the law otherwise expressly
provides, all actions for forcible entry and
unlawful detainer, irrespective of the
amount of damages or unpaid rentals
sought to be recovered, shall be governed
by the summary procedure hereunder
provided.
Then let’s go now to Section 3.
All actions for ejectment regardless of the
amount of damages or paid rentals sued to be
recovered are governed by summary procedure.
If you are familiar with summary procedure, ang
rule sa summary procedure kai separate rule na
sya pero gi-copy almost word for word dia dri sa
rule 70 for ejectment cases. Before the
amendment of the Rule of Civil Procedure,
Ejectement is governed under Summary
procedure. Sa ato pa rule 70 and summary
procedure are the same.
Take note that the damages that you can recover
in ejectment cases are only the unpaid rentals
and the reasonable attorney’s fees. You
CANNOT collect moral damages, exemplary
damages and other damages: only rentals in
arrears. In fact under the rule on summary
procedure there is limit as to the amount of
attorney’s fees that the court can award; it
should not be more than 20k. But if you look at
here (rule 70) wai limit diri. So. Mao nang giingon
ko nga hapit gi-copya in toto, ingon ko “hapit” kai
duna mai gikalimtan (ang katong limit sa
attorney’s fees).
Now, you have taken up Comprehensive Agrarian
Reform diba? Now as regard to ejectment of
farmers the court do not have jurisdiction over
the case. In fact under Rep. Act 9700 (this is the
law amending the CARP Law)... Now, when a
plaintiff files an ejectment case, either forcible
entry or unlawful detainer, the moment that the
defendant would raise the defense of tenancy
automatically the trial court losses jurisdiction
over the case.
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General rule: the jurisdiction of the court is
determined in the allegation of the complaint. It
does not depend upon the allegation in answer or
in a motion to dismiss of the defendant.
Exception to that: Ejectment cases involving
tenancy issue. Because under Rep. Act No. 9700,
when in ejectment case the defendant would
raise the defense of tenancy automatically the
court losses jurisdiction over the case, meaning
to say the trial court has to dismiss the case.
Q: Asa man diay puede ma file ang maong kaso?
A: Adto sa DARAB.
SEC. 4. Pleadings allowed.—The only
pleadings allowed to be filed are the
complaint, compulsory counterclaim and
cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be
verified.
Then section 4, Pleadings allowed:
1. Complaint
2. Answer
NOTE: If there is any counterclaim or cross claim
the same must be pleaded in the answer.
3. Answer to the counterclaim or cross-claim
In other words there are only three pleadings
allowed, the same as summary procedure. No
other pleadings allowed.
By the way the counterclaim here refers only to
compulsory counterclaim. What does it mean?
Permissive counter claim is not allowed.
SEC. 5. Action on complaint.—The court
may, from an examination of the allegations
in the complaint and such evidence as may
be attached thereto, dismiss the case
outright on any of the grounds for the
dismissal of a civil action which are
apparent therein. If no ground for dismissal
is found, it shall forthwith issue summons
Q: Then what is the action of the court once a
complaint of ejectment is filed?
A: Upon the filing of the case in court, the court
has to determine whether or not there is a
ground for the dismissal of a case is found in the
face of the complaint. Remember Rule 16: proper
venue, jurisdiction, etc.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
If upon examination the allegations in the
complaint the court finds any of the grounds to
dismiss the case, the court can motu proprio
dimissed the case. Lahi ni siya sa ordinary nga
kaso. Ngano man? Those cases under the
ordinary procedure the court cannot motu
proprio, as a rule, dismiss the case the court has
to wait motion to dismiss from the defendant.
Although dunay pila ka-instances nga ang korte
puede ka-dimiss such as: Katong sec 1, Rule 9,
Jurisdiction, prescription, etc. Pero dire sa
summary procedure, reverse. Ang exception
didto sa ordinary cases nahimo nang rule dire;
and ang gidili didto, gitugot na diri.
If upon examination the allegations in the
complaint, the court finds any of the grounds to
dismiss the case, the court can motu proprio
dimissed the case. Why? Because motion to
dismiss is a prohibited pleading, the defendant is
not allowed to file a motion to dismiss because it
will just delay he proceedings.
SEC. 6. Answer.—Within ten (10) days from
service of summons, the defendant shall
file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative
and negative defenses not pleaded therein
shall be deemed waived, except lack of
jurisdiction over the subject matter. Cross-
claims and compulsory counterclaims not
asserted in the answer shall be considered
barred. The answer to counterclaims or
cross-claims shall be served and filed within
ten (10) days from service of the answer in
which they are pleaded
If the court finds a ground for dismissal then it
shall issue summons and the defendant is
given only 10 days (usually in ordinary
proceeding: 15 days but under the summary
procedure it is only ten days). Nganong mubo
man? Tungod kai dinalian, summary gud.
Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of
jurisdiction over the subject matter. Cross-claims
and compulsory counterclaims not asserted in
the answer shall be considered barred if not
alleged in the answer. The answer to
counterclaims or cross-claims shall be served and
filed within ten (10) days.
SEC. 7. Effect of failure to answer.—Should
the defendant fail to answer the complaint
within the period above provided, the
court, motu proprio or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the
complaint and limited to what is prayed for
therein. The court may in its discretion
reduce the amount of damages and
attorney’s fees claimed for being excessive
or otherwise unconscionable, without
prejudice to the applicability of section
3(c), Rule 9 if there are two or more
defendants.
Q: what is the effect if the defendant fails to file
an answer?
A: The plaintiff cannot file a motion to declare the
defendant in default. That is a prohibited
pleading. In the event that the defendant
fails to file his answer, the court can motu
proprio render decision (not dismiss the
case) based on the allegation in the
complaint, motu proprio or upon motion of the
plaintiff. In other words when the defendant fails
to file an answer, instead of filing a motion to
declare the defendant in default, the plaintiff will
file motion to render the decision.
Sa ato pa kung ikaw maoy kihante tarunga jud
nang suwat nang imu complaint kai kung di
katubag ang defendant, ang court puede mu-
render ug decision basi sa gipanulti ninu sa imu
complaint or sa mga annexes nimu. Niya
mangutana ka, sigurado naba kang daog? Dili!!
Ngano man? Kai kung dunay kuwang ang imong
allegation sa complaint, for example you did not
alleged that there was prior demand (if it is
unlawful detainer) then it should be dismissed. Or
in a forcible entry you did not alleged that you
have prior possession (because in forcible entry
prior possession of the plaintiff is required) then
you loss the case. Napildi ka sa kaso dili tungod
sa defendant, napildi ka tungod sa imu
kalugalingon.
Page | 223

SEC. 8. Preliminary conference; appearance
of parties.—Not later than thirty (30) days
after the last answer is filed, a preliminary
conference shall be held. The provisions of
Rule 18 on pre-trial shall be applicable to
the preliminary conference unless
inconsistent with the provisions of this
Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be cause for
the dismissal of his complaint. The
defendant who appears in the absence of
the plaintiff shall be entitled to judgment
on his counterclaim in accordance with the
next preceding section. All cross-claims
shall be dismissed.
If a sole defendant shall fail to appear, the
plaintiff shall likewise be entitled to
judgment in accordance with the next
preceding section. This procedure shall not
apply where one of two or more defendants
sued under a common cause of action who
had pleaded a common defense shall
appear at the preliminary conference.
No postponement of the preliminary
conference shall be granted except for
highly meritorious grounds and without
prejudice to such sanctions as the court in
the exercise of sound discretion may
impose on the movant.
Then if the defendant files an answer, what
comes next?? It would be the so called
preliminary conference. Pareho ra jud ni siya
sa pre-trial. Nganong gilahe man ug ngalan? Arun
pagpakita na kana siya summary procedure. Pero
ang mga items, ang mga matters na gi-discuss
pareho ra.
Then the rule on pre-trial under rule 18 are to be
followed by the court. So usay provision sa rule
18 as regards pre-trial? Filing the pre-trial brief,
the trial court in ejectment cases can require the
parties to submit pre-trial brief. Failure to appear
on the part of the plaintiff shall cause the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
dismissal of the case. Failure on the defendant to
appear shall cause the plaintiff to have the case
decided based on the allegation of the complaint.
Sa ato pa kung plaintiff di mutunga...DISMISS.
Kung defendant di mutanga, dismiss gihapon? Aw
dili! Malipay ana ang defendant ana. The court
will just render decision based on the
complaint. Timan-i jud na niyo basta maka-file
na ug answer dili najud na siya ma-default. The
non-appearance of the defendant will just be a
reason for the court to render decision based on
the allegations in the complaint. Except when
there are two or more defendants. If there are
two or more defendants and some of the
defendants file the answer while the others did
not and they have common defenses or they are
sued under common cause of action then they
defaulted defendants can benefit from the
answer of the answering defendants.
No postponement under preliminary
conference shall be granted except for
highly meritorious grounds.
SEC. 9. Record of preliminary conference.—
Within five (5) days after the termination of
the preliminary conference, the court shall
issue an order stating the matters taken up
therein, including but not limited to:
1. Whether the parties have
arrived at an amicable settlement, and
if so, the terms thereof;
2. The stipulations or
admissions entered into by the parties;
3. Whether, on the basis of the
pleadings and the stipulations and
admissions made by the parties,
judgment may be rendered without the
need of further proceedings, in which
event the judgment shall be rendered
within thirty (30) days from issuance of
the order;
4. A clear specification of
material facts which remain
controverted; and
5. Such other matters intended to expedite
the disposition of the case.
After the preliminary conference and once it is
terminated the court will issue an order stating
what transpired during the preliminary
conference, such as whether there was amicable
settlement; what are the facts stipulated; what
are the exhibits marked; who are the witnesses
to be presented (these have to be stated in the
order). You called that preliminary conference
order. As well as the issues to be resolved.
Usually there is only one issue in the ejectment
case: which of the parties is entitled to physical
possession or whether or not the defendant can
be legally ejected from the premises. unya dunay
pakapin nga sub-issues: which of the parties is
entitled to claim for damages or attorney’s fees
can be awarded.
Pero ayaw mo kahibulang dunay ubang abogado
manhadlok, bisan ejectment cases i-allege sa ila
complaint “that due to failure of defendant to
vacate the plaintiff suffers sleepless night, etc. to
wich the defendant is to pay moral damages in
the amount of millions. Nganong ibutang man
na? Ang iba ibutang na aron mahadlok ang
defendant pero ang uban ibutang na kai wa sila
kahibalo nga prohibited diay. Pero wa raman sad
na kung imu ibutang... basin pud diay mutuo ang
korte. Mao pud sa defendant :“by reason of this
baseless complaint the defendant suffers
sleepless night to which the plaintiff should be
ordered to pay moral damages on the amount of
100k. Niya ang korte muytuo pud. Paanglitan
awarded niya ug moral damages niya ang
abogado sad sa plaintiff di pud siya mu-questtion
...ah kakuha ug moral damages.
Now take note of this, the Preliminary conference
order to be issued by the court is very important.
Q: Why is it important?
A: Because the date of receipt (ang pitsa sa
pakadawat) by the parties of the copy of the
order would be the reckoning period for the
counting of the ten-day period.
Q: Unsa man nang 10-day period
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A: that is the period within which the parties are
required to submit position papers.
Now, in ejectment cases there is no trial,
meaning there is no reception of evidence, there
is no presentation of witnesses. What will
happen? After preliminary conference the parties
will just be required to submit position papers.
Q: Unsa man ning position paper?
A: Pareho ra jud nang inyo gibuhat-buhat sa
practice court nga memorandum, mao ra gyud
na. I-state nimu ang imong facts. Natural kung
plaintiff kai isulti na nimu nga “kaning defendant
nisud na nga wai pananghid” or “kaning
defendant nangabang ni pero wa ni siya bayad-
bayad sulod sa pila kabulan despite demand”.
Unya suportahan nimu ug ruling sa Supreme
Court, supotahan nimu ug provision sa Rules of
Court...Mao na siya ang position paper.
Hangyuhon nimu sa korte nga “wherefore is
hereby prayed that honourable court that
judgment be render ordering the defendant to
vacate and pay rentals in this amount and
Attorney’s fees.
SEC. 10. Submission of affidavits and
position papers.— Within ten (10) days from
receipt of the order mentioned in the next
preceding section, the parties shall submit
the affidavits of their witnesses and other
evidence on the factual issues defined in
the order, together with their position
papers setting forth the law and the facts
relied upon by them.
Ten days from the receipt of order the parties
should submit their position paper and attached
to the position papers should be the affidavits of
their witnesses. Since there is no presentation of
witnesses, the witnesses will have to execute
affidavits and their affidavit should be attached
to their position papers.
So, if you claim, for example, that you are
diligently paying the rentals than you attach the
receipts. Plaintiff: you claim to be the owner so
you attach the title. Those are other document or
evidence to support the factual issues in the
case.
Q: How many day wherein which to file the
position papers?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: Within ten days.
Q: Asa ang reckoning point?
A: From the receipt of the preliminary conference
order.
There is one case where in the judge did not
prepare an order and although there was no
order one of the parties took it upon himself just
to submit position but the other did not because
he is waiting for the order. The defendant I think
is the one who submitted the position paper.
Because of the failure of the plaintiff to submit
position paper (as if the plaintiff did not present
any evidence) the court dismiss the case. Was
the reason why the plaintiff did not submit
position paper? Because he did not receive any
order from court. The case reached the SC. The
SC said that there is no date within which the
submission of the position paper can be reckoned
with and so the decision of the trial court was
declared void.
SEC. 11. Period for rendition of judgment.—
Within thirty (30) days after receipt of the
affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.
However, should the court find it necessary
to clarify certain material facts, it may,
during the said period, issue an order
specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
(15) days after the receipt of the last
affidavit or the expiration of the period for
filing the same.
The court shall not resort to the foregoing
procedure just to gain time for the rendition of
the judgment.
Then after the submission of the position papers
then the court will have 30 days to decide the
case. Usually in ordinary cases the court has 90
days to prepare discussion, but if it is under
summary procedure it is only 30 days.
Q: Suppose within 10 days none of the parties or
one of the parties did not submit position paper
despite the order of the court, what will court do?
Does the court have to wait the submission of the
position paper?
A: No, the court has to decide the case after the
lapse of the ten-day period, with or without
position paper.
In one case the judge was discipline by the SC
because he did not render decision and the judge
reason out that, “I did not render decision
because I was waiting for the position paper of
the defendant. The SC said, “No! You should
decide the case, with or without the position
paper.”
Now in case where there are matters to be
clarified the court can require the parties to
submit affidavit to clarify issues or fact that the
judge wanted to clarify, the court cannot call a
hearing. Inig submit nila ug position paper
together with their evidence naa gani ipa-klaro
ang korte kai naglibog siya puede niya i-require
kanang party, na ni-submit ug makalibog nga
ebidensiya, to submit clarificatory affidavits. He
cannot resort to a trial or hearing. Ah kung ako
ana and then naay nisubmit ug wai klaro...kung
plaintiff, ah dismiss... bahala uroy ka diha
nganong di ka mutrabaho sa imong mga
trabahuonon. So, tarunga jud.
SEC. 12. Referral for conciliation.—Cases
requiring referral for conciliation, where
there is no showing of compliance with
such requirement, shall be dismissed
without prejudice, and may be revived only
after that requirement shall have been
complied with.
Then sec. 12, this refers to the referral of the
case to the barangay. If the case is filed in the
court without referring first to the barangay the
case could be dismissed, without prejudice, for
non-compliance of condition precedent.
Remember Rule 16, naa diha sa last naay
compliance of condition precedent. Sa ato pa sa
rule on summary procedure ug sa ejectment
cases, general rule you cannot file a motion to
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dismiss. Pero dunay duha ka-exceptions (nga
pwede ka kafile ug motion to dismiss):
1. On the ground of lack of
jurisdiction
2. Non- compliance of Katarungan
Pambarangay.
Remember that non-compliance of katarungan
pambarangay should be raised in a motion to
dismiss or should be alleged in the answer,
failure to raise in a motion to dismiss or raise in
the answer the same is considered as waived. It
is not jurisdictional; non-compliance of
Katarungan Pambarangay is not jurisdictional.
Meaning it will not affect the jurisdiction of the
court; it will be considered waived if not raised in
a motion to dismiss or as an affirmative defense
in an answer.
SEC. 13. Prohibited pleadings and motions.
—The following petitions, motions, or
pleadings shall not be allowed:
1. Motion to dismiss the
complaint except on the ground of lack
of jurisdiction over the subject matter,
or failure to comply with section 12;
2. Motion for a bill of
particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from
judgment;
5. Motion for extension of
time to file pleadings, affidavits or any
other paper;
6. Memoranda;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
7. Petition for certiorari,
mandamus, or prohibition against any
interlocutory order issued by the court;
8. Motion to declare the
defendant in default;
9. Dilatory motions for
postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
Section 13, these are the prohibited pleadings
and motions.
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
section 12 (meaning referral to Katarungan
Pambarangay).
Q: Now you might ask, “Suppose the case is
filed in a wrong venue how can you raise that
ground when you are prohibited to file a
motion to dismiss?” Unsa man na nimu pag-
raise maong ground nga di man ka ka-file
motion to dismiss?
A: You can raise that in your answer. So with
jurisdiction and non-referral of the case with
barangay, you can raise it in your answer, in
fact I have told you that it would be more
advantageous on the part of the defendant
not to file a motion to dismiss but raise those
defenses in your answer.
2. Another prohibited pleading of motion:
Motion for bill of particulars.
3. Motion for new trial, or for
reconsideration of a judgment or for
reopening of trial.
Take note what is prohibited is motion for
reconsideration of a decision.
Q: Can you file a motion for reconsideration of
an interlocutory order?
A: Yes! It is not a prohibited, what is prohibited
is motion for reconsideration of a judgement.
4. Petition for relief from judgment.
5. Motion for extension of time to file
pleadings, affidavits or any other paper.
Submission of late answer is strictly
prohibited. So, for example: you file your
answer in the 11th day or in the 12th day, that
can be deleted from the record.
Q: Why?
A: According to the SC if late answers would
be allowed that would run counter to the
purpose of summary procedures and lawyers
just the same would delay the proceedings.
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court.
8. Motion to declare the defendant in
default.
9. Dilatory motions for postponement.
What is prohibited is dilatory motion; if it is
not for the purpose of the delaying the
proceeding then it can be allowed
10. Reply.
11. Third-party complaints.
12. Interventions.
Now remember that the rule on summary
procedure does not apply to the RTC. So, once
the case the ejectment case was already on
appeal the rule on summary procedure will not
apply anymore. The rule on summary procedure
will apply only in the first level court, once the
case is elevated on appeal before the RTC the
rules on summary procedure will not anymore
apply.
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SEC. 14. Affidavits.—The affidavits required
to be submitted under this Rule shall state
only facts of direct personal knowledge of
the affiants which are admissible in
evidence, and shall show their competence
to testify to the matters stated therein.
A violation of this requirement may subject
the party or the counsel who submits the
same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit
or portion thereof from the record.
The affiant must only state fact wherein they
have personal knowledge.
In your book particularly that case of Hilario vs.
CA:
The SC once again enumerates certain
cases wherein the filing of the same will
not be considered prejudicial question to
an ejectment case. Sa ato pa even these
cases were filed the ejectment case will
prosper or will continue. What are these
cases?
1. Accion publiciana
2. Writ of possession
3. Action for quieting of title
So for example a plaintiff files an action against
the defendant, ejectment: forcible entry. Nisud
siya wai pananghid. The defendant also claims to
be the owner kai kunuhay sinunuod niya maong
yuta, nisud didto gipamutol ang mga lubi. Nag
plaintiff pakabalo ani file siya ug forcible entry
(threats, intimidation). The defendant ,after the
filing of ejectment case, balos sad siya file siya
ug quieting of title.
Q: would the filing of quieting of title cause the
dismissal or suspension of the ejectment case.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: the answer is NO!
Q: Why?
A: Because the issues in these two cases are
different. Although in ejectment case the issue of
ownership could be touched but the same would
only be provisional in nature.
4. Specific performance for damages
5. Action for reconveyance
SEC. 15. Preliminary injunction.—The court
may grant preliminary injunction, in
accordance with the provisions of Rule 58
hereof, to prevent the defendant from
committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession
through forcible entry or unlawful detainer
may, within five (5) days from the filing of
the complaint, present a motion in the
action for forcible entry or unlawful
detainer for the issuance of a writ of
preliminary mandatory injunction to restore
him in his possession. The court shall
decide the motion within thirty (30) days
from the filing thereof.
When we took up preliminary injunction, we
come to know that first level courts can issue this
provisional remedy, provided that the first level
court has jurisdiction over pending action. In
ejectment cases, especially in forcible entry
cases, the first level court where the case is
pending may issue preliminary injunction upon
motion or prayer by the plaintiff.
Under Section 20, even the case is already on
appeal the RTC can also issue preliminary
mandatory injunction to restore the plaintiff in
possession. If the court is satisfied that the
plaintiff’s appeal is not dilatory, frivolous or
baseless or that the appeal of the plaintiff is
prima facie meritorious.
SEC. 16. Resolving defense of ownership.—
When the defendant raises the defense of
ownership in his pleadings and the question
of possession cannot be resolved without
deciding the issue of ownership, the issue
of ownership shall be resolved only to
determine the issue of possession.
Look a section 16, we discussed this already.
If the defendant raised the defense of ownership,
the same will notautomatically deprive the court
jurisdiction over the case because the court can
temporarily pass upon the issue of ownership in
an ejectment case. But take notr the ruling of the
trial court ( of the first level court) regarding the
issue of ownership is merely provisional or
temporary.
SEC. 17. Judgment.—If after trial the court
finds that the allegations of the complaint
are true, it shall render judgment in favor
of the plaintiff for the restitution of the
premises, the sum justly due as arrears of
rent or as reasonable compensation for the
use and occupation of the premises,
attorney’s fees and costs. If it finds that
said allegations are not true, it shall render
judgment for the defendant to recover his
costs. If a counterclaim is established, the
court shall render judgment for the sum
found in arrears from either party and
award costs as justice requires.
Of course if the trial court finds that the
allegations of the plaintiff are true, it shall render
judgment in favour of the plaintiff directing the
defendant to vacate the premises and to pay the
rental on arrears or reasonable compensation for
the use and occupation of the premises and
damages (rentals and attorney’s fees).
SEC. 18. Judgment conclusive only on
possession; not conclusive in actions
involving title or ownership.—The judgment
rendered in an action for forcible entry or
detainer shall be conclusive with respect to
the possession only and shall in no wise
bind the title or affect the ownership of the
land or building. Such judgment shall not
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bar an action between the same parties
respecting title to the land or building.
The judgment or final order shall be
appealable to the appropriate Regional Trial
Court which shall decide the same on the
basis of the entire record of the
proceedings had in the court of origin and
such memoranda and/or briefs as may be
submitted by the parties or required by the
Regional Trial Court.
Now, look at section 18. The judgement of the
trial court on the issue of possession is conclusive
but the same will not affect the ownership or the
title of the building or property. In other words
the judgement of the trial court (first level court)
will create res judicata as regards only to the
issue of possession but not ownership.
Now, remember that in decision or judgement in
ejectment case is binding not only upon the
defendant but also against those not party
thereto if they are member of the family, relative
and other privies of the defendant, trespassers,
squatters, or agents of the defendant, guest and
other occupants of the premises, transferees
pendente lite, leasees, sub-leasees, co-leasees.
So ato pa kung ang defendant gikiha then
napildi, katong iyang igsuon katong nagpuyo sa
ilaha bisan wa to gi-apil sa kiha apil to
papahawaon. Ingon ang igsuon, “wa ko gi-apil sa
kiha”. Dili, apil ka, guest ka.
SEC. 19. Immediate execution of judgment;
how to stay same.—If judgment is rendered
against the defendant, execution shall
issue immediately upon motion, unless an
appeal has been perfected and the
defendant to stay execution files a
sufficient supersedeas bond, approved by
the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents,
damages, and costs accruing down to the
time of the judgment appealed from, and
unless, during the pendency of the appeal,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
he deposits with the appellate court the
amount of rent due from time to time under
the contract, if any, as determined by the
judgment of the Municipal Trial Court. In
the absence of a contract, he shall deposit
with the Regional Trial Court the reasonable
value of the use and occupation of the
premises for the preceding month or period
at the rate determined by the judgment of
the lower court on or before the tenth day
of each succeeding month or period. The
supersedeas bond shall be transmitted by
the Municipal Trial Court, with the other
papers, to the clerk of the Regional Trial
Court to which the action is appealed.
All amounts so paid to the appellate court
shall be deposited with said court or
authorized government depositary bank,
and shall be held there until the final
disposition of the appeal, unless the court,
by agreement of the interested parties, or
in the absence of reasonable grounds of
opposition to a motion to withdraw, or for
justifiable reasons, shall decree otherwise.
Should the defendant fail to make the
payments above prescribed from time to
time during the pendency of the appeal, the
appellate court, upon motion of the
plaintiff, and upon proof of such failure,
shall order the execution of the judgment
appealed from with respect to the
restoration of possession, but such
execution shall not be a bar to the appeal
taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional
Trial Court, any money paid to the court by
the defendant for purposes of the stay of
execution shall be disposed of in
accordance with the provisions of the
judgment of the Regional Trial Court. In any
case wherein it appears that the defendant
has been deprived of the lawful possession
of land or building pending the appeal by
virtue of the execution of the judgment of
the Municipal Trial Court, damages for such
deprivation of possession and restoration
of possession may be allowed the
defendant in the judgment of the Regional
Trial Court disposing of the appeal.
Take note section 19 this is very important.
General rule: The decision of the trial court in
an ejectment case is immediately executor,
unless:
1. The defendant files an appeal
2. Posted supersedeas bond
3. And deposits with the appellate court the
amount of rent due from the time under the
contract.
These three requisites/ requirements must be
complied with.
Repeat: in an ejectment case the decision of the
trial court is immediately executor. Meaning it
can be executed even if the case is under appeal,
even if the defendant will file an appeal, he can
be ejected from the premises. Writ of execution
can be issued.
Q: What should the defendant do in order stay
the execution?
A: Three things should be done:
1. He should file an appeal
2. He should put up supersedeas bond
Unsa man ning supersedeas bond? Kaning
supersedeas bond mao ning siya nga
amount sa rent nga gi-award sa court or
reasonable fee for the use of the property.
Q: how much is the amount of the bond?
A: the amount mention by the court in the
decision.
So, for example the court said, “ wherefore
judgement is hereby rendered direct the
defendant to vacate the premises and he is
also ordered to pay the rentals in arrears for
10k a month starting from January 2011. So
that is the amount of the bond that the
defendant must deposit in court.
A: what is the purpose of the bond?
Q: The bond will be use to answer damages
awarded by the court.
The amount of the supersedeas bond should
be equal to the rentals in arrears. The
attorney’s fees are not included in the
amount of the supersedeas bond.
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3. When the case is already on appeal the
defendant has to make deposit in that
court the amount of the rentals.
So, if it s monthly then he should deposit every
month in the RTC the monthly rentals, otherwise
even he put up a supersedeas bond: even he had
filed an appeal but he did not make deposit of
the monthly rentals before the appellate court
(RTC) he could be ejected from the premises.
Those three should be complied with.
….before the RTC(as an appellate court) he could
be ejected from the premises, those 3 should
be complied with!!!
Question: Now suppose the defendant files an
appeal but did not put up supersedeas bond,
Answer: the plaintiff can file motion issuance
of writ of execution pending appeal.
Question: What about if the defendant files an
appeal, put up a supersedeas bond but while the
case is pending before the RTC, he did not make
deposit every month or kung unsa to ilang sabot.
Answer: the plaintiff can file a motion for
execution pending appeal before the RTC.
The defendant can be ejected
Going back to supersedeas bond , supersedeas
bond is required if the court ordered the
defendant to pay rentals, suppose the triacl court
did not order the defendant to pay rentals. So for
example the stay of the defendant in the
premises is by tolerance( walay abang diba..) and
another reason of the court why it did not award
any rentals, [because] the plainitiff did not also
alleged the reasonable amount of the rent for the
use of the premises. Wala juy gibutang didto sa
complaint kung pila jud reasonable abang diha.
Dili man pwede mag buot buot ang korte. So ang
korte inig render sa decision will just direct the
defendant to vacate the premises and will order
to pay rental because there is no such allegation
in the complaint. And since there is no award as
to the payment of rentals. Question, should the
defendant be required to pay supersedeas bond?
Answer, No, because the amount of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
supersedeas bond depends upon the
amount awarded by the court.
Take Note! Section 19
Section 20. Preliminary mandatory injunction in
case of appeal. — Upon motion of the plaintiff,
within ten (10) days from the perfection of the
appeal to the Regional Trial Court, the latter may
issue a writ of preliminary mandatory injunction
to restore the plaintiff in possession if the court is
satisfied that the defendant's appeal is frivolous
or dilatory or that the appeal of the plaintiff is
prima facie meritorious.
Section 21. Immediate execution on appeal to
Court of Appeals or Supreme Court. — The
judgment of the Regional Trial Court against the
defendant shall be immediately executory,
without prejudice to a further appeal that may be
taken therefrom
When the decision of the first level court
is affirmed by the RTC the decision of the RTC
cannot anymore be stayed by supersedeas,
meaning it is now executor, without prejudice to
further appeal to be made by the defendant.
So let us suppose Mr. D was filed an ejectment
case in the first level court. Unsa to buhaton ni
Mr. D aron dili xa ma pahawa? Answer: katong 3!
1. File an Appeal
2. Put up supersedeas bond
3. Deposit the amount of rents
periodically before the RTC
Now suppose the RTC affirm the decision of the
first level court, what will happen? The decision
of the RTC will now be executor, that cannot
anymore be stayed by supersedeas bond,
without prejudice to make an appeal on the part
of the defendant. So for example the defendant
is not contended with the decision of the RTC he
will now appeal to the CA he can be ejected from
the premises.
Where should the motion for execution be filed?
Since the case is filed in the RTC pending appeal,
the motion should be filed before the RTC.
RULE 71
Contempt
Now there are 2 kinds of contempt
1. Direct contempt
2. Indirect contempt
Direct contempt meaning, kanang word nga
direct, diretso, diretso kag silot. Direct contempt
meaning you are summarily punished, summarily
meaning without asking you any question you
are ordered to pay fine or put to jail. Kaning
Indirect, aw dili paka diretsuon, you are required
to explain first. Diri sa direct, no explaination is
required. Diretso!
In what instance that a person may be punished
for direct contempt? So section 1
Section 1. Direct contempt punished summarily.
— A person guilty of misbehavior in the presence
of or so near a court as to obstruct or interrupt
the proceedings before the same, including
disrespect toward the court, offensive
personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe
an affidavit or deposition when lawfully required
to do so, may be summarily adjudged in
contempt by such court and punished by a fine
not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of
equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment
not exceeding one (1) day, or both, if it be a
lower court.
… including disrespect toward the court, unsa
man ni? So for example the use of offensive
language, you call the judge names. You
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challenge the judge to a fist fight. That is
disrespectful toward the court, or offensive
personalities toward others. For example you
challenge your adverse counsel to a fist fight. Or
you call your adverse counsel names. Example:
ah! Graduate ka lng ug San jose ako U.P. ko , ako
Ateneo ko!
What do you mean by summarily adjudge?
Without any hearing. Diretso ka papriso, “ guard
you arrest this person put him in jail for 2 days”
Pila man punishment? by a fine not exceeding
(2000) two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a
Regional Trial Court or a court of equivalent or
higher rank, or by a fine not exceeding two
hundred pesos or imprisonment not exceeding
one (1) day, or both, if it be a lower court.
Remember that willful and deliberate forum
shopping constitute direct contempt. Usually
kanang direct contempt naa ka duol sa korte ana
and your misbehavior has obstructed the
proceedings, naa ka duol sa korte ana. For
example nag saba saba ron. Nag hearing ta ron,
nag saba saba sila, the court can summarily cite
them in contempt. You call the guards, or the
police present, “okay you arrest those persons,
put them in jail.
But in indirect contempt you cannot do that, you
have to give the respondent a chance to explain
why he should not be cited for contempt.
So contempt is classified into direct and indirect
other term for indirect is “constructive”
Contempt is also classified as civil contempt or
criminal contempt.
1. civil contempt- failure to do
something that is ordered by the
court for the benefit of a party.
2. Criminal contempt – conduct directed
against the dignity or authority of the
court.
Repeat!
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Kinds of contempt according to manner of
commission:
1. direct
2. indirect
kinds of contempt as to the nature:
1. Civil
2. Criminal
Contempt proceedings has a dual function:
1. Vindication of public interest by
punishment of contemptuous and
contumacious conduct.
2. Coercion to compel the contemptor
to do what requires him to do to
uphold the power of the court and to
secure the rights of the party to a suit
awarded by the court.
So 2 functions: 1. Vindication and 2. Coercion
(Regalado vs Go, February 6, 2007)
Section 2. Remedy therefrom. — The person
adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended
pending resolution of such petition, provided
such person files a bond fixed by the court which
rendered the judgment and conditioned that he
will abide by and perform the judgment should
the petition be decided against him.
Section 2 tells us the remedy in case of direct
contempt. Take note that the order of the court
citing direct contempt is not appealable. Then
what is the remedy then of a person cited for
direct contempt?
Remedy:
1. Certiorari
2. Prohibition
[Certiorari and/or prohibition]
Meaning you can only question on the ground of
grave abuse of discretion.
“The execution of the judgment shall be
suspended pending resolution of such petition,
provided such person files a bond fixed by the
court which rendered the judgment.”
In other words, once a person is cited for
direct contempt, the court will have to fix a bail,
just in case he would file certiorari and/or
prohibition.
Section 3. Indirect contempt to be punished
after charge and hearing. — After a charge in
writing has been filed, and an opportunity given
to the respondent to comment thereon within
such period as may be fixed by the court and to
be heard by himself or counsel, a person guilty of
any of the following acts may be punished for
indirect contempt;
Take note: that in indirect contempt, the
respondent must be given a chance to explain.
There are 2 ways of initiating an indirect
contempt:
1. if it is initiated by the court, the court
has to issue a so called “show
cause order” example: explain,
within 5 days why you should not be
cited for contempt for [unsa man to
imong acts].
2. if it is other than the court it can be
initiated by petition, and the
petition must be complied with all the
requisites of an initiatory pleading. It
should be filed just like any other
case, it is subjected to a raffle etc…
but if it is the court, all the court has
to do is to issue a “show cause order”
so what are the acts that constitute indirect
contempt.
(a) Misbehavior of an officer of a court in
the performance of his official duties
or in his official transactions;
Officer of the court so sherrif, lawyers. So if a
lawyer misbehaves but not in court, anywhere
else.
Page | 230

(b) Disobedience of or resistance to a
lawful writ, process, order, or
judgment of a court, including the act
of a person who, after being
dispossessed or ejected from any real
property by the judgment or process
of any court of competent
jurisdiction, enters or attempts or
induces another to enter into or upon
such real property, for the purpose of
executing acts of ownership or
possession, or in any manner disturbs
the possession given to the person
adjudged to be entitled thereto;
For example the court issued a TRO and it has
been disobeyed.
“or judgment of a court “ Take note of this
judgment, because not all judgment. Only special
judgment pertaining to certiorari, prohibition,
mandamus. Not to ordinary judgment. For
example the defendant is ordered to pay the loan
and the defendant failed to comply with the
judgment of the court, that could not be a ground
for indirect contempt because that kind of
judgment is ordinary or specific judgment.
Remember rule 39? Ang judgment nga pwede
nato ma indirect contempt, kanang gitawag
nato nga special judgment. For example,
judgment in a mandamus, judgment in a
certiorari or judgment in a prohibition cases.
What about if the court issued a writ of execution
in an ejectment case ordering the sheriff to have
the defendant ejected from the premises. But
when the sheriff when to the premises, the
defendant resisted and refuse to vacate the
premises.
Question: can the defendant be cited for indirect
contempt?
Answer: NO. because the writ of execution was
directed to the sheriff not to the defendant. A writ
of execution is an order directing a sheriff to have
the defendants ejected.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
However once the defendants have been ejected
from the premises by the sheriff for example gi-
demolish na ilang balay, but later on the
defendants returned, ah this time they can be
cited for indirect contempt.
Mao ni ang buot gipasabot, “act of a person who,
after being dispossessed or ejected from any real
property by the judgment or process of any court
xxx enters or attempts or induces another to
enter” so that is now contemptuous.
Failure to vacate- not contemptuous because the
writ of execution id directed to the sheriff.
But after ejected, there was re-entry- that can be
subjected to indirect contempt.
(c) Any abuse of or any unlawful
interference with the processes or
proceedings of a court not
constituting direct contempt under
section 1 of this Rule;
For example: asking for postponement without
any valid reason or the reason for the asking of
the postponement was proved to be false, so for
example you asked for postponement because
you are sick but it was found out that you
attended a fiesta, you attended a Christmas part,
then that is contemptuous. You are abusing the
processes of the court.
Filing baseless motions, that can be a ground for
indirect contempt.
(d) Any improper conduct tending,
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice;
For example: harassing the witness, bribing the
witnesses. Or granting media interview while the
case is pending.
(e) Assuming to be an attorney or an
officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him.
But nothing in this section shall be so construed
as to prevent the court from issuing process to
bring the respondent into court, or from holding
him in custody pending such proceedings.
Take note: Now remember that using
intemperate language in the motions or
pleadings constitute direct contempt. diba
atong na hibal-an ang direct contempt kana rman
“so near the court”.
Section 4. How proceedings commenced. —
Proceedings for indirect contempt may be
initiated motu propio by the court against which
the contempt was committed by an order or any
other formal charge requiring the respondent to
show cause why he should not be punished for
contempt.
Ah.. we have discussed this already. So unsa to
kung court gani? “Show cause order”
In all other cases, charges for indirect contempt
shall be commenced by a verified petition with
supporting particulars and certified true copies of
documents or papers involved therein, and upon
full compliance with the requirements for filing
initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of
or are related to a principal action pending in the
court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard
and decided separately, unless the court in its
discretion orders the consolidation of the
Page | 231

contempt charge and the principal action for joint
hearing and decision.
Mao ni kung dili sa court ang indirect contempt.
mao nani verified petition.
If its through a petition it can be filed in another
court. Although the petition for indirect contempt
as well as the main case could be consolidated.
Section 5. Where charge to be filed. — Where
the charge for indirect contempt has been
committed against a Regional Trial Court or a
court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed
with such court. Where such contempt has been
committed against a lower court, the charge may
be filed with the Regional Trial Court of the place
in which the lower court is sitting; but the
proceedings may also be instituted in such lower
court subject to appeal to the Regional Trial Court
of such place in the same manner as provided in
section 11 of this Rule.
Sa RTC if indirect contempt has been commmited
with the RTC it can be filed with such court.
What about if its committed in the lower court? It
could either be in that court or the RTC.
Ohkeemm “either”
If an indirect contempt is committed against the
SC, the SC may direct a prosecutor to
investigate.
Section 6. Hearing; release on bail. — If the
hearing is not ordered to be had forthwith, the
respondent may be released from custody upon
filing a bond, in an amount fixed by the court, for
his appearance at the hearing of the charge. On
the day set therefor, the court shall proceed to
investigate the charge and consider such
comment, testimony or defense as the
respondent may make or offer.
Now remember that even in indirect contempt,
the respondent can be required to be held in
custody but he can be release on bail.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 7. Punishment for indirect contempt. —
If the respondent is adjudged guilty of indirect
contempt committed against a Regional Trial
Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty
thousand pesos or imprisonment not exceeding
six (6) months, or both. If he is adjudged guilty of
contempt committed against a lower court, he
may be punished by a fine not exceeding five
thousand pesos or imprisonment not exceeding
one (1) month, or both. If the contempt consists
in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also
be ordered to make complete restitution to the
party injured by such violation of the property
involved or such amount as may be alleged and
proved.
The writ of execution, as in ordinary civil actions,
shall issue for the enforcement of a judgment
imposing a fine unless the court otherwise
provides.
This is now the penalty. RTC the penalty is higher
than direct contempt. look at the penalty. The
penalty for indirect contempt is higher. Look at
section 8.
Section 8. Imprisonment until order obeyed. —
When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be
imprisoned by order of the court concerned until
he performs it.
Meaning his imprisonment could be indefinite.for
example, he is required to testify but he refused
to testify, so he will be put to jail until he agrees
to testify. Meaning to say he is the holder of the
key to the doors of his jail. Nay daghan kaso ana
sa inyong political law. Ang sagad gud nga ma
priso ana senate man.
Section 9. Proceeding when party released on
bail fails to answer. — When a respondent
released on bail fails to appear on the day fixed
for the hearing, the court may issue another
order of arrest or may order the bond for his
appearance to be forfeited and confiscated, or
both; and, if the bond be proceeded against, the
measure of damages shall be the extent of the
loss or injury sustained by the aggrieved party by
reason of the misconduct for which the contempt
charge was prosecuted, with the costs of the
proceedings, and such recovery shall be for the
benefit of the party injured. If there is no
aggrieved party, the bond shall be liable and
disposed of as in criminal cases.
Section 10. Court may release respondent. —
The court which issued the order imprisoning a
person for contempt may discharge him from
imprisonment when it appears that public
interest will not be prejudiced by his release.
Take note: it is only the judge who ordered
the confinement of a person who could also
issue the order of release. So kinsa tong
court nga nag pa priso niya, mao rapo ang maka
order sa iyang realease. Of course EXCEPTION:
is when the order of the court has been subjected
to a petition for certiorari, or prohibition then the
higher court can order the release.
Section 11. Review of judgment or final order;
bond for stay. — The judgment or final order of a
court in a case of indirect contempt may be
appealed to the proper court as in criminal cases.
But execution of the judgment or final order shall
not be suspended until a bond is filed by the
person adjudged in contempt, in an amount fixed
by the court from which the appeal is taken,
conditioned that if the appeal be decided against
him he will abide by and perform the judgment or
final order.
The order of the court finding the respondent
guilty may be appealed to the proper court.
Remember that what can be appealed is only the
decision finding the respondent guilty. If the court
rendered a decision acquitting the respondent of
the charge the same could not be appealed
because direct contempt either criminal or civil
has the nature of a criminal case. It cannot
be appealed in court acquitted the respondent.
Page | 232

Only a finding of the respondent guilty can be
appealed.
Section 12. Contempt against quasi-judicial
entities. — Unless otherwise provided by law, this
Rule shall apply to contempt committed against
persons, entities, bodies or agencies exercising
quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted
pursuant to authority granted to them by law to
punish for contempt. The Regional Trial Court of
the place wherein the contempt has been
committed shall have jurisdiction over such
charges as may be filed therefor.
Now what about the quasi-judicial entities, do
they have the contempt power? The answer is
NO. they can only initiate, they can only file but
they don’t have the power to cite contempt. they
can only file a petition. For example, prosecutor’s
office, that body can only initiate or file a petition
in court but that office cannot by itself sight a
person for contempt.
REVISED RULES ON SUMMARY PROCEDURE
Pursuant to Section 36 of the Judiciary
Reorganization Act of 1980 (B.P Blg. 129)
and to achieve an expeditious and
inexpensive determination of the cases
referred to herein, the Court Resolved to
promulgate the following Revised Rule on
Summary Procedure:chanroblesvirtu
I.
Applicability
Section 1. Scope. — This rule shall govern
the summary procedure in the Metropolitan
Trial Courts, the Municipal Trial Courts in
Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts in the
following cases falling within their
jurisdiction:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Remember the cases that are governed by the
rules on summary procedure.
1. Civil cases
2. Criminal cases
A. Civil Cases
(1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered. Where attorney's fees are
awarded, the same shall not exceed twenty
thousand pesos (P20,000.00).
(2) All other civil cases, except probate
proceedings, where the total amount of the
plaintiff's claim does not exceed ten
thousand pesos (P10,000.00), exclusive of
interest and costs.
As far as civil cases are concerned, then only
forcible and unlawful detainer is left. Nagno man?
Because all other cases if the claim does not
exceed 100,000 is now under small claims.aw
hiuon naa pa, kanang sa Metro Manila 200,000
kay under the rules on summary procedure
100,000 man tanan. Sa naa gihapon, money
claims not more than 200,00 didto sa metro
manila summary procedure gihapon.
B. Criminal Cases:
(1) Violations of traffic laws, rules
and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city
ordinances; (4) All other criminal
cases where the penalty prescribed
by law for the offense charged is
imprisonment not exceeding six
months, or a fine not exceeding
(P1,000.00), or both, irrespective of
other imposable penalties,
accessory or otherwise, or of the
civil liability arising therefrom:
Provided, however, that in offenses
involving damage to property
through criminal negligence, this
Rule shall govern where the
imposable fine does not exceed ten
thousand pesos (P10,000.00).
now you notice that violation of Provincial
ordinance is not included, I believe that is
deemed included in paragraph 3, so here, in
number 3.
3. Violations of BP. 22
So BP 22 summary procedure, although the
penalty for BP 22 is 1 year imprisonment.
What about if the offense is reckless imprudence
resulting in damage to property alone? This rule
shall govern where the impossible penalty shall
not exceed 10,000. Meaning this rule shall apply
when the cause of the damage does not exceed
10,000. We are now talking to reckless
imprudence resulting in damage to property
alone. If the damage is 10,000 or less then it is
covered by the rules on summary procedure.
This Rule shall not apply to a civil case
where the plaintiffs cause of action is
pleaded in the same complaint with another
cause of action subject to the ordinary
procedure; nor to a criminal case where the
offense charged is necessarily related to
another criminal case subject to the
ordinary procedure.chanrobles
This rule will not apply if a cause of action is
pleaded on the same complaint, when another
cause of action is subject to ordinary procedure.
So remember when we discuss joinder of causes
of action. So if a cause of action is joined with
another cause of action falling under the ordinary
procedure then this rule will not apply. The same
with criminal cases. Pila to penalty sa criminal
cases nga mo-govern ang summary procedure? 6
months. Unsa man mga crimes nga imposable 6
months ang penalty? Slight physical injuries,
Page | 233

malicious mischief, less serious physical injuries.
So remember your criminal law.
Sec. 2. Determination of applicability. —
Upon the filing of a civil or criminal action,
the court shall issue an order declaring
whether or not the case shall be governed
by this Rule A patently erroneous
determination to avoid the application of
the Rule on Summary Procedure is a ground
for disciplinary action.
So there has to be an order.
“patently erroneous determination to avoid
the application of the Rule on Summary
Procedure is a ground for disciplinary
action.” Meainig tinuyo nga dili e govern.
II.
Civil Cases
Sec. 3. Pleadings. —
A. Pleadings allowed. — The only pleadings
allowed to be filed are the complaints,
compulsory counterclaims and cross-claims'
pleaded in the answer, and the answers
thereto.
B. Verifications. — All pleadings shall be
verified.
TAKE NOTE: that verification is not a
jurisdiction requisite but merely a formal
requisite. What does it mean? Meaning that even
if your pleading filed under this rule is not
verified the court in its discretion may not
dismiss it but may just requires a correction or
amendment.
Sec. 4. Duty of court. — After the court
determines that the case falls under
summary procedure, it may, from an
examination of the allegations therein and
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
such evidence as may be attached thereto,
dismiss the case outright on any of the
grounds apparent therefrom for the
dismissal of a civil action. If no ground for
dismissal is found it shall forthwith issue
summons which shall state that the
summary procedure under this Rule shall
apply.
The court may dismiss the case outright
if the court finds any ground to dismiss the case.
If it cannot find a ground to dismiss the case,
issue summons
Sec. 5. Answer. — Within ten (10) days
from service of summons, the defendant
shall file his answer to the complaint and
serve a copy thereof on the plaintiff.
Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for lack of jurisdiction over the
subject matter. Cross-claims and
compulsory counterclaims not asserted in
the answer shall be considered barred. The
answer to counterclaims or cross-claims
shall be filed and served within ten (10)
days from service of the answer in which
they are pleaded.
Admission of late answer is strictly prohibited.
(Luna vs. Mirafuente September 26, 2005)
Sec. 6. Effect of failure to answer. —
Should the defendant fail to answer the
complaint within the period above
provided, the court, motu proprio, or on
motion of the plaintiff, shall render
judgment as may be warranted by the facts
alleged in the complaint and limited to
what is prayed for therein: Provided,
however, that the court may in its
discretion reduce the amount of damages
and attorney's fees claimed for being
excessive or otherwise unconscionable.
This is without prejudice to the applicability
of Section 4, Rule 15 of the Rules of Court,
if there are two or more defendants.
The court can motu proprio render a
decision based on the allegations of the
complaint or upon motion of the
plaintiff.
Sec. 7. Preliminary conference;
appearance of parties. — Not later than
thirty (30) days after the last answer is
filed, a preliminary conference shall be
held. The rules on pre-trial in ordinary
cases shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
Rule on pre-trial would apply.
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for
the dismissal of his complaint. The
defendant who appears in the absence of
the plaintiff shall be entitled to judgment
on his counterclaim in accordance with
Section 6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule
shall not apply where one of two or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at the preliminary conference.
Sec. 8. Record of preliminary conference.
— Within five (5) days after the termination
of the preliminary conference, the court
shall issue an order stating the matters
taken up therein, including but not limited
to:chanroblesvirtuallawlibrary
(a) Whether the parties have arrived at an
amicable settlement, and if so, the terms
thereof;
Page | 234

(b) The stipulations or admissions entered
into by the parties;.
(c) Whether, on the basis of the pleadings
and the stipulations and admissions made
by the parties, judgment may be rendered
without the need of further proceedings, in
which event the judgment shall be rendered
within thirty (30) days from issuance of the
order;
(d) A clear specification of material facts
which remain controverted; and
(e) Such other matters intended to
expedite the disposition of the case.
Rule on Preliminary Conference meaning to say
the court has to issue a preliminary conference
order. Why is it important? Because that is the
reckoning point for the counting of the 10 days
period. What should the parties do within those
10 day period? Submit position paper. Mao na
ang section 9.
Sec. 9. Submission of affidavits and
position papers. — Within ten (10) days
from receipt of the order mentioned in the
next preceding section, the parties shall
submit the affidavits of their witnesses and
other evidence on the factual issues
defined in the order, together with their
position papers setting forth the law and
the facts relied upon by them.
Sec. 10. Rendition of judgment. — Within
thirty (30) days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.
However should the court find it necessary
to clarify certain material facts, it may,
during the said period, issue an order
specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
(15) days after the receipt of the last
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
clarificatory affidavits, or the expiration of
the period for filing the same.
The court shall not resort to the
clarificatory procedure to gain time for the
rendition of the judgment.
Then after the lapse of the period? Decision. In
other words, there is no offer of evidence in
summary procedure in civil cases. Usually there
must be offer of exhibits. But in cases, governed
by the reiles on summary procedure, there is no
formal offer, the parties will only have to attach
their documents to the position. So unsa man
imong buhaton ana? You cannot object, you have
no time to object because there is no formal
offer. So unsa imong buhaton ana kay dili man ka
ka object? So during preliminary conference you
request that you will be allowed to look at those
documents.
III.
Criminal Cases
Sec. 11. How commenced. — The filing of
criminal cases falling within the scope of
this Rule shall be either by complaint or by
information: Provided, however, that in
Metropolitan Manila and in Chartered
Cities. such cases shall be commenced only
by information, except when the offense
cannot be prosecuted de oficio.
The complaint or information shall be
accompanied by the affidavits of the
compliant and of his witnesses in such
number of copies as there are accused plus
two (2) copies for the court's files. If this
requirement is not complied with within
five (5) days from date of filing, the care
may be dismissed.
Now criminal cases falling under the rules
on summary procedure can be filed either by
complaint or by information.
Sec. 12. Duty of court. —
(a) If commenced by compliant. — On the
basis of the compliant and the affidavits
and other evidence accompanying the
same, the court may dismiss the case
outright for being patently without basis or
merit and order the release of the amused
if in custody.
(b) If commenced by information. — When
the case is commenced by information, or is
not dismissed pursuant to the next
preceding paragraph, the court shall issue
an order which, together with copies of the
affidavits and other evidence submitted by
the prosecution, shall require the accused
to submit his counter-affidavit and the
affidavits of his witnesses as well as any
evidence in his behalf, serving copies
thereof on the complainant or prosecutor
not later than ten (10) days from receipt of
said order. The prosecution may file reply
affidavits within ten (10) days after receipt
of the counter-affidavits of the defense.
If commenced by complaint the court can
dismissed it outright. The complaints must be
accompanied with affidavits and other
documents. The complaint that we are talking
here is not the civil case. This is the criminal
complaint. Unsa man nang criminal complaint?
Pareho rana sa information.and naka lahi lang
kay ang ni-pirmi sa complaint kay ang pulis or an
ga quija(kiha), sa information and mi pirma fiscal.
Dili ni xa complaint nga katong sa civil. Dili! Lahi
ni! I suppose that you have learn this in your
rules on criminal procedure or in your legal
forms.
If commenced by information is not dismissed by
the court because there is no ground to dismiss
the same. The court will require the party to
Page | 235

submit counter affidavit requiring him to submit
it within 10 days.
Now, under the regular procedure, upon the filing
of the case in court, the court will issue, warrant
of arrest. But in cases falling under summary
procedure the court will not issue warrant of
arrest but instead the court will issue order,
requiring the accused to submit counter-affidavit.
Just like in civil cases, submission of late counter-
affidavit is not allowed (Cariaga vs. Anasario 396
SCRA 599).
Sec. 13. Arraignment and trial. — Should
the court, upon a consideration of the
complaint or information and the affidavits
submitted by both parties, find no cause or
ground to hold the accused for trial, it shall
order the dismissal of the case; otherwise,
the court shall set the case for arraignment
and trial.
If the accused is in custody for the crime
charged, he shall be immediately arraigned
and if he enters a plea of guilty, he shall
forthwith be sentenced
Now after the submission of the counter-affidavit
the accused shall be arraigned and if he pleads
guilty he shall be sentenced immediately.
Motion to quash is not allowed except on 2
grounds:
1. lack of jurisidiction over the offense
2. non compliance with the katarungang
pambarangay.
If the arrest is illegal the accuse might be at a
disadvantage point. Because usually if the arrest
is illegal the accused may quash the information
on the ground that the court did not acquire
jurisdiction over his person, but that motion is
prohibited under summary procedure. That kind
pf motion to quash is prohibited. What are
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
allowed are the motion to dismiss on the ground
of lack of juridicition over the offense and non-
complaince with the katarungang pambarangay.
Sec. 14. Preliminary conference. — Before
conducting the trial, the court shall call the
parties to a preliminary conference during
which a stipulation of facts may be entered
into, or the propriety of allowing the
accused to enter a plea of guilty to a lesser
offense may be considered, or such other
matters may be taken up to clarify the
issues and to ensure a speedy disposition
of the case.However, no admission by the
accused shall be used against him unless
reduced to writing and signed by the
accused and his counsel.A refusal or failure
to stipulate shall not prejudice the accused.
This is the same with pre-trial.
Take note!!! Remember in criminal cases there
will be presentation of evidence. Sabot ta ha nga
kanag trial presentation of evidence na xa.
INGON GANI KO TRIAL, PRESENTATIO FO
EVIDENCE NA XA. WALA NAY DAGHAN
LANGAS!
In civil cases there is no trial,only preliminary
conference. there is no presentation of evidence!
In Criminal cases there is trial there is
presentation of evidence! When we say evidence
including witnesses ohhkee di nata mag binu**k
ana hap! Automatic na na! (I think e take note
jud ni ninyo kay nangugat jud si jd ani ug ingon,
kusog ayo iya tingog so take note jud ta ani.)
Only witnesses who had executed an affidavit are
allowed to testify, witnesses who did not submit
affidavits CANNOT testify, except on rebuttal
or sur-rebuttal.
However under section 14, during pre-trial or
preliminary conference, the parties may manifest
or inform the court that he is submitting
additional affidavits. Take note: ADDITIONAL
AFFIDAVITS within 3 days. That is during the
preliminary conference. The court may give the
parties. 3 days to submit additional affidavits.
Because only those witnesses who have
submitted affidavits can testify.
Sec. 15. Procedure of trial. — At the trial,
the affidavits submitted by the parties shall
constitute the direct testimonies of the
witnesses who executed the same.
Witnesses who testified may be subjected
to cross-examination, redirect or re-cross
examination. Should the affiant fail to
testify, his affidavit shall not be considered
as competent evidence for the party
presenting the affidavit, but the adverse
party may utilize the same for any
admissible purpose.
Except in rebuttal or surrebuttal, no
witness shall be allowed to testify unless
his affidavit was previously submitted to
the court in accordance with Section 12
hereof.
However, should a party desire to present
additional affidavits or counter-affidavits as
part of his direct evidence, he shall so
manifest during the preliminary conference,
stating the purpose thereof. If allowed by
the court, the additional affidavits of the
prosecution or the counter-affidavits of the
defense shall be submitted to the court and
served on the adverse party not later than
three (3) days after the termination of the
preliminary conference. If the additional
affidavits are presented by the prosecution,
the accused may file his counter-affidavits
and serve the same on the prosecution
within three (3) days from such service.
We have discussed this.
So only those witnesses with affidavits can
testify. The affidavits of the witnesses will serve
as their testimonies on direct examination. In
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other words all you have to do is to let the
witnesses identify his affidavits and right away he
will be subjected to cross examination by the
adverse party. However, as what we have said,
on rebuttal, sur-rebuttal those witnesses who
have NOT submitted affidavits can testify, that is
on rebuttal or sur-rebuttal.
Sec. 16. Arrest of accused. — The court
shall not order the arrest of the accused
except for failure to appear whenever
required. Release of the person arrested
shall either be on bail or on recognizance
by a responsible citizen acceptable to the
court.
As what we have said the court cannot issue
warrant of arrest, as a rule. Except when the
accused fails to comply an order of the court.
What order for example? Fro example order
directing him to appear during arraignment. If the
court directed him to be present during
arraignment the court can issue warrant for his
arrest.
So General Rule: the court cannot issue warrant
of arrest
Exception: for failure to appear, whenever
required by the court. On instance is when the
court issues an order for the accused to be
present during arraignment but fails to comply.
So the court will order his arrest for failure to
comply an order.
And once he is arrested he may put up bail or he
can also be released on recognizance.
Then after the presentation of evidence there
shall be promulgation of judgment.
Sec. 17. Judgment. — Where a trial has
been conducted, the court shall promulgate
the judgment not later than thirty (30) days
after the termination of trial.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 18. Referral to Lupon. — Cases
requiring referral to the Lupon for
conciliation under the provisions of
Presidential Decree No. 1508 where there is
no showing of compliance with such
requirement, shall be dismissed without
prejudice and may be revived only after
such requirement shall have been complied
with. This provision shall not apply to
criminal cases where the accused was
arrested without a warrant.
We have discussed this already. So the
case must be referred to the lupon, if not referred
the case shall be dismissed. However failure on
the part of the accused to question the non-
referral of the case before his arraignment shall
be considered as a waiver. In other words, that
issue of non-referral must be raised before
arraignment otherwise it is waived.
However, the non-referral of the case to the
barangay is NOT REQUIRED IF THE ACCUSED
WAS ARRESTED WITH A WARRANT OR IS
ALREADY DETAINED .
Sec. 19. Prohibited pleadings and motions.
— The following pleadings, motions or
petitions shall not be allowed in the cases
covered by this Rule:
(a) Motion to dismiss the complaint or to
quash the complaint or information except
on the ground of lack of jurisdiction over
the subject matter, or failure to comply with
the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for
reconsideration of a judgment, or for
opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file
pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in
default; (i) Dilatory motions for
postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.
So the same ra didto sa ejectment.
So that is the rule on summary procedure.
CHAPTER VII
Katarungang Pambarangay
Section 399. Lupong Tagapamayapa. -
(a) There is hereby created in each
barangay a lupong tagapamayapa,
hereinafter referred to as the lupon,
composed of the punong barangay, as
chairman and ten (10) to twenty (20)
members. The lupon shall be constituted
every three (3) years in the manner
provided herein.
(b) Any person actually residing or
working, in the barangay, not otherwise
expressly disqualified by law, and
possessing integrity, impartiality,
independence of mind, sense of fairness,
and reputation for probity, may be
appointed a member of the lupon.
(c) A notice to constitute the lupon, which
shall include the names of proposed
members who have expressed their
willingness to serve, shall be prepared by
the punong barangay within the first
fifteen (15) days from the start of his
term of office. Such notice shall be
posted in three (3) conspicuous places in
the barangay continuously for a period of
not less than three (3) weeks;
(d) The punong barangay, taking into
consideration any opposition to the
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proposed appointment or any
recommendations for appointment as
may have been made within the period of
posting, shall within ten (10) days
thereafter, appoint as members those
whom he determines to be suitable
therefor. Appointments shall be in
writing, signed by the punong barangay,
and attested to by the barangay
secretary.
(e) The list of appointed members shall
be posted in three (3) conspicuous places
in the barangay for the entire duration of
their term of office; and
(f) In barangays where majority of the
inhabitants are members of indigenous
cultural communities, local systems of
settling disputes through their councils of
datus or elders shall be recognized
without prejudice to the applicable
provisions of this Code.
The law on katarungang pamabarangay was used
to be PD 1508 but now it is the Local Government
Code. Section 339 og the LGC mandates that
every barangay should organize a so called
Lupon Tagapamayapa, which is composed of the
brgy as chairman and 10-20 members. Then the
brgy secretary should also serve as the secretary
to the lupon. Out of the members of the lupon
there shall be constituted pangkat composed of 3
members if there should be a complaint. A
pangkat tagapagsundo should be formed
composed of 3 members. And out of this 3
members one shall be the chairman, one shall be
the secretary and the other just a member.
You cannot choose who will be the
members of the pangkat, they shall be
determined by raffle.
Members of the pangkat they are considered as
persons in authority.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 408. Subject Matter for Amicable
Settlement; Exception Thereto. - The lupon of
each barangay shall have authority to bring
together the parties actually residing in the same
city or municipality for amicable settlement of all
disputes except:
General rule: All disputes, SO TANAN HA EVEN IF
CONGNIZABLE BY MTC OR RTC.
Exceptions:
(a) Where one party is the government,
or any subdivision or
instrumentality thereof;
So kung ang imong kontra gobyerno pwede ra dili
mu-agi ug barangay. Or gobyerno ang mu file
pwede ra dli mu-agi ug barangay, so one of the
parties
(b) Where one party is a public officer
or employee, and the dispute
relates to the performance of his
official functions;
So if for example, public school teacher,
manghapak xag estudyante, pwede na nga dili
na e refer sa barangay because the offense has a
relation to her function. Pero kung ang maestro
nangutang then that has nothing to do with the
performance of her function. So a case has to be
filed before the barangay.
(c) Offenses punishable by
imprisonment exceeding one (1)
year or a fine exceeding Five
thousand pesos (P5,000.00);
In other words if the penalty imposable is only 1
year or less, barangay, within the barangay. And
also sa ato pa, if the penalty exceeds 5,000 not
anymore within the barangay.
(d) Offenses where there is no private
offended party;
What are these crimes? Example concealing
deadly weapon or possession deadly weapon,
there is no offended party here. So there is no
need to undergo brgy conciliation. Now by the
way atong na bal-an nga kanag crimes must be
prosecuted it must not be subject to compromise
or settlement, EXCEPTION ni ang katarungang
pambarangay. Because under Katarungang
pambarangay those crimes wherein the penalty
is 1 year or less must undergo barangay
conciliation. So sa ato pa this is the exception to
the rule
(e) Where the dispute involves real
properties located in different cities
or municipalities unless the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon;
(f) Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
except where such barangay units
adjoin each other and the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon;
Ang inyong clue ani is SAME CITY OR
MUNICIPALITY. If the parties are living
within the same municipality or city even if
they are living in different barangay, the
case must be referred to the barangay
where the respondent or defendant is
residing. But if the parties are living in different
municipalities or cities no need to refer to the
brgy.
(g) Such other classes of disputes which
the President may determine in the
interest of Justice or upon the
recommendation of the Secretary of
Justice.
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The court in which non-criminal cases not
falling within the authority of the lupon
under this Code are filed may, at any
time before trial motu propio refer the
case to the lupon concerned for amicable
settlement.
In civil cases even if not falling within the
katarungang pamabarangay, the court can still
refer this case to the barangay. Bisan pag dili
required, but if the court believes that the parties
could be settled then the court may refer this
case to the barangay.
Then residence, actual residence not the
domicile. ACTUAL RESIDENCE.
Section 409. Venue. – THIS IS IMPORTANT!!!
(a) Disputes between persons actually
residing in the same barangay shall be
brought for amicable settlement before
the lupon of said barangay.
(b) Those involving actual residents of
different barangays within the same city
or municipality shall be brought in the
barangay where the respondent or any
of the respondents actually resides, at
the election of the complaint.
(c) All disputes involving real property or
any interest therein shall be brought in
the barangay where the real property or
the larger portion thereof is situated.
SO REAL ACTIONS place where the property is
located
PERSONAL ACTIONS place where the parties
reside/s
(d) Those arising at the workplace where the
contending parties are employed or at the
institution where such parties are enrolled for
study, shall be brought in the barangay where
such workplace or institution is located.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise, the same shall be deemed
waived. Any legal question which may confront
the punong barangay in resolving objections to
venue herein referred to may be submitted to the
Secretary of Justice, or his duly designated
representative, whose ruling thereon shall be
binding.
Section 410. Procedure for Amicable
Settlement. –
(a) Who may initiate proceeding - Upon
payment of the appropriate filing fee,
any individual who has a cause of action
against another individual involving any
matter within the authority of the lupon
may complain, orally or in writing, to the
lupon chairman of the barangay.
So you will have to file a complaint either oral or
in writing.
(b) Mediation by lupon chairman - Upon receipt of
the complaint, the lupon chairman shall within
the next working day summon the respondent(s),
with notice to the complainant(s) for them and
their witnesses to appear before him for a
mediation of their conflicting interests. If he fails
in his mediation effort within fifteen (15) days
from the first meeting of the parties before him,
he shall forthwith set a date for the constitution
of the pangkat in accordance with the provisions
of this Chapter.
Who will mediate first? It will be the barangay
captain. If no settlement refer it to the pangkat
and the pangkat has another 15 days.
(c) Suspension of prescriptive period of offenses -
While the dispute is under mediation,
conciliation, or arbitration, the prescriptive
periods for offenses and cause of action under
existing laws shall be interrupted upon filing the
complaint with the punong barangay. The
prescriptive periods shall resume upon receipt by
the complainant of the complainant or the
certificate of repudiation or of the certification to
file action issued by the lupon or pangkat
secretary: Provided, however, That such
interruption shall not exceed sixty (60) days from
the filing of the complaint with the punong
barangay.
The prescriptive period of the offense is stopped
when the case is filed with the brgy. But the
suspension of the prescriptive period should not
be longer than 60 days. Sa ato pa whether or not
the proceedings before the brgy. is done, after
the lapse of 60 days, the prescriptive period shall
continue to run.
If there is no settlement the brgy chairman or the
lupon chairman should issue a CERTIFICATION
TO FILE ACTION.
Now, the settlement… look at Section 411
Section 411. Form of settlement. - All amicable
settlements shall be in writing, in a language or
dialect known to the parties, signed by them, and
attested to by the lupon chairman or the pangkat
chairman, as the case may be. When the parties
to the dispute do not use the same language or
dialect, the settlement shall be written in the
language known to them.
Although the complaint may be oral the
settlement should be:
1. in writing
2. signed by the parties
3. attested to by the Lupon Chairman or
the Pangkat
Take note: the written settlement constitutes a
final judgment of the court. It has an effect of a
final judgment of a court. Meaning you cannot file
it anymore. Res judicata will set in. it has the
effect of a final judgment of the court.
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Section 412. Conciliation. -
(a) Pre-condition to Filing of Complaint in
Court. - No complaint, petition,
action, or proceeding involving any
matter within the authority of the
lupon shall be filed or instituted
directly in court or any other
government office for adjudication,
unless there has been a confrontation
between the parties before the lupon
chairman or the pangkat, and that no
conciliation or settlement has been
reached as certified by the lupon
secretary or pangkat secretary as
attested to by the lupon or pangkat
chairman or unless the settlement
has been repudiated by the parties
thereto.
We have discussed this already. Once a case is
governed by the katarungang pambarangay the
same cannot be filed in court without the
certification to file action. But take note that non-
compliance would not affect the jurisdiction of
the court, it an be waived.
(b) Where Parties May Go Directly to Court.
- The parties may go directly to court in the
following instances:
(1) Where the accused is under
detention;
(2) Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings;
(3) Where actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of
personal property and support pendente
lite; and
so for example support, support is
congnzable by the barangay, but if there
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
is support pendent lit, that is a
provisional remedial, that is an excuse
from complying the katarungang
pambarangay law.
(4) Where the action may otherwise be
barred by the statute of limitations.
Another exception:
4. Labor dispute-
5. Agrarian dispute- meaning between
tenants and landlords.
(c) Conciliation among members of indigenous
cultural communities. - The customs and
traditions of indigenous cultural communities
shall be applied in settling disputes between
members of the cultural communities.
Section 414. Proceedings Open to the Public;
Exception. - All proceedings for settlement shall
be public and informal: Provided, however, That
the lupon chairman or the pangkat chairman, as
the case may be, may motu proprio or upon
request of a party, exclude the public from the
proceedings in the interest of privacy, decency,
or public morals.
Informal. So walay procedure.
Section 415. Appearance of Parties in Person. -
In all katarungang pambarangay proceedings,
the parties must appear in person without the
assistance of counsel or representative, except
for minors and incompetents who may be
assisted by their next-of-kin who are not lawyers.
The parties must appear in person. No assistance
of lawyers. Lawyers are prohibited. If they need
assistance, such as minors or incompetents, they
must be assisted by their relatives who are not
lawyers.
Section 416. Effect of Amicable Settlement and
Arbitration Award. - The amicable settlement and
arbitration award shall have the force and effect
of a final judgment of a court upon the expiration
of ten (10) days from the date thereof, unless
repudiation of the settlement has been made or a
petition to nullify the award has been filed before
the proper city or municipal court.
However, this provision shall not apply to court
cases settled by the lupon under the last
paragraph of Section 408 of this Code, in which
case the compromise or the pangkat chairman
shall be submitted to the court and upon
approval thereof, have the force and effect of a
judgment of said court.
We have discussed this already. The amicable
settlement has the effect of final judgment of a
court, unless the same is repudiated within 10
days. What do you mean by repudiated? Meaning
his consent was obtained force, fraud,
intimidation, violation. If there exist no
intimidation etc, it has the effect of a final
judgment. Sa ato pa it can be executed.
Section 417. Execution. - The amicable
settlement or arbitration award may be enforced
by execution by the lupon within six (6) months
from the date of the settlement. After the lapse
of such time, the settlement may be enforced by
action in the appropriate city or municipal court.
Who will execute? The brgy. Chairman/ captain
shall act as the sheriff
Then what would be the procedure? The same
procedure under Rule 39.
However after the lapse of 6 months after the
issuance of the amicable settlement has become
final and executor, after the lapse of 6 months,
the authority now to enforce the amicable
settlement is now within the court.
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Take note: The party who wants to enforce the
settlement must file a case in court. It must be
in a form of a complaint not a motion for
execution but in the form of a complaint.
What would be the cause of action? The cause of
action would be the enforcement of the
settlement. So mura ra nag mu file ug kiha. So
that is after the lapse of 6 months. Its just like
revival of cases.
Section 418. Repudiation. - Any party to the
dispute may, within ten (10) days from the date
of the settlement, repudiate the same by filing
with the lupon chairman a statement to that
effect sworn to before him, where the consent is
vitiated by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint
as hereinabove provided.
Section 419. Transmittal of Settlement and
Arbitration. - Award to the Court. - The secretary
of the lupon shall transmit the settlement or the
arbitration award to the appropriate city or
municipal court within five (5) days from the date
of the award or from the lapse of the ten-day
period repudiating the settlement and shall
furnish copies thereof to each of the parties to
the settlement and the lupon chairman.
The court that has jurisdiction to enforce the
amicable settlement is the MTC.
Candido vs. Macapagal 221 SCRA 328
Garces vs. CA 162 SCRA 504
Vda de Borromeo vs. Pugoy 126 SCRA 217
Alinsugay vs. Cagampang Jr. 143 SCRA 146
Diu vs. CA 251 SCRA 472
Sps. Morato vs. Sps Go. 125 SCRA 444
Banares vs, Balising 328 SCRA 36
Peregrina vs. Panis 133 SCRA 72
Vidal et al vs. Esquitta et al. Dec 10, 2003.
January 6, 2013
Now, under the Katarungang
Pambarangay Law, be sure to take note the cases
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that are cognizable by the barangay because if
the case is cognizable by the barangay and the
same was not referred to the barangay the same
can be dismiss. Unya imagine kung mao pa gani
pagfile sa imung kaso dismiss na mauwawan ka
ana sa imung cliente. Gawas nga mauwawan ka
mawagtangan ka ug cliente.
You should also take note that aside from
referring the case to the barangay, the same
must be also be alleged in your pleading.
Because even if the case has been referred to the
barangay but you do not alleged it in your
complaint the same has to be dismiss.
Regarding criminal cases, take note also
what are the criminal cases that are cognizable
by the barangay. And you should also allege it in
your affidavit. Kung ikw complainant inig file
nimu ug kaso criminal mu.execute jd ka ug
affidavit, ibutang na nimu muhimu ka ug usa ka
sentence dha sa imung affidavit nga kanang
maong kaso sa wa pa nah nimu gifile g.refer na
nimu sa maong barangay unya way settlement
nga nahitabo.
Then the venue, regarding personal
actions the venue is the resident of the
respondent, dle sa plaintiff. Walay option ang
complainant I mean. The law requires that the
complaint shall be filed where the respondent is
residing and by the word residents it refers to
actual residents, dle katong concept sa political
kato btw domicile na wherein you have an intent
to return, ang kato jd diin ka actually nga nag
puyo. So kamu nagstudy mn mu dri you can be
considered as residence, ang imung actual
resident is cebu city. So kung ikiha ka nya
magkinahanglan ug barangay ari ka filan ug kaso
sa cebu city. Unya take note nga the parties are
residing in the same city or municipality. Ang imu
ra jud timan.an ana is the same city or
municipality. Sa ato pa if the parties are residing
in different city or municipality there is no need
to refer the case before the barangay. Except
kung ang barangay is adjoining. Naa mn mga
barangays nga nagtapad pero lain2 cla ug
syudad. For example Cebu City, adunay Bulakaw
Cebu City dunay Bulakaw Talisay, pwd nah cya,
provided that the parties would agree that the
case has to be referred to the barangay.
Timan.e nga kung aduna na gani
property edisregard nimu nah ang resident sa
respondent kai ang imu basihan kai ang place sa
property or the location of the property. For
example, ang mga parties nagpuyo sa labangon
pero ang property nga ila gilalisan naa sa lahug
so adto sa lahug, in the place where the property
is located.
Gen. Rule ana as far as civil cases are concern all
cases must be referred to the barangay
exception ana ang dle. So ang inyong timan.an
ang unsay dle. Inig pangutan.on nka kung
kinahanglan erefer sa barangay ang imung
huna2on ang exception kai Gen. Rule civil case
has to be referred to the barangay. For example
somebody obtain a loan from you in the amount
of one million and both of you are residing in the
same cities, is the same to be referred to the the
barangay? Look at the amount involve 1 million,
barangay o dle? Barangay, bsan pa ug cognizable
sa RTC kai Gen. Rule a case has to be referred to
the barangay exception nang dle.
Unsa mn nga mga kaso ang dle e.refer sa
barangay?
1. When the parties are a residence of
different municipalities or cities.
JD: Ako naman nahatag ninyo nuh?
There are about 12.
2. Usa ana is when one of the party is a
juridical person.
o Kaning balaod sa barangay
mu.apply lang ni ug natural
person. Juridical person, bank,
corporation. So kung bangko ang
mukiha d na kinahanglan nga
ihapit sa barangay.
3. When the action is coupled with
provisional remedies.
o Actually kanang pag.allege ug
provisional remedies usa na sa ghimung
escape goat (?) sa mga abogado. So for
example mu file ka ug support. Support is
cognizable by the barangay pero kung gusto
ka nga d na nimu erefer sa barangay filan
nimu ug support pendeti lite. So you can file
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support with a prayer of support pendeti lite.
If there is such a prayer for provisional
remedy there is no need to refer the case to
the barangay.
o Another example you are going to
collect a sum of money, a loan. If you allege
in your complaint or if you ask in your
complaint issuance of preliminary writ of
attachment then there is no need for you to
refer the case to the brgy. But take note of
the requirements. Ug imu ra nang gi.allege
dha pero wla 2ng mga requirements for the
issuance of preliminary writ of attachment
klaro kau nga kanang imuha gbuhat para
rana e.evade nimu ang balaod.
JD: take note of those exceptions.
Unya sa criminal cases usa sa inyong
timan.an ana ang penalty. Because if the penalty
is 1 yr. or less the case has to be referred to the
brgy. so more than 1 yr. there is no need to refer
to the brgy. or if the case does not have any
private complainant. For example possession of
deadly weapon, there is no private complainant,
d na nah nimu ipa.agi ug brgy. there is no private
complainant. Another is hapit na mu.prescribe,
for example gisumbag ka unya nakalimut ka ug
file daun unya inig ka ugma mu.expire nah pwd
na nah nga dle nimu i.agi ug brgy., because the
case might be extinguish by prescription. Okay,
so exception na nah, pero e.allege na nimu sa
imung affidavit nganung wan a nimu g.refer sa
brgy.
Another thing that you should remember is about
prescription. When you file a case before the
brgy., the prescriptive period is stop or stalled.
But remember that ther period of suspension for
the running of the prescriptive period is only
60days. In other words, if the lapsed of 60 days
the case is not yet settled before the brgy., the
prescriptive period now will resume to run. So
mao nang remindad nimu nag brgy. captain nga
dle dugay dugayon ang hearing o ang pag.issue
sa certification to file action because the case
might extinguish due to prescription.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Remember that the amicable settlement
in the brgy. has the force and effect of a final
judgment of a court. Sa ato pa kung
nagkasinabot mu didto, kanang inyong
kasabotan didto nga inyong gipirmahan mao na
nay decision sa kaso. Mao nang nindot kung
magkasinabot mu didto sa brgy. Kung akoy
complainant dunay naka.utang nko mas maau
nga e.agi sa brgy. Nganu man? Kai kung musugot
na cya duna moy kasabotan didto kanang inyong
kasabotan mao na nay decision sa kaso. Dka
kagasto ug abogado. Kai kung mu.apil gud nang
abogado dako kau na ug bayad, possible na
kanang imung collectible igo ra nah ibayad sa
abogado. Unya mkasave ka ug time. Kanang
imung collectibles na 200thousand etake yrs
didto sa court, whereas kungn magkasinabot mu
didto sa brgy just imagine sa time, money and
efforts nga imung nasave. Unya mao pd na ang
purpose sa brgy aron dle magdasok ang mga
kaso didto sa court. Okay that’s the main
purpose of the Katarungang Pambarangay. To
avoid clogging of cases in the courts.
Now, unsaon mn pag.execute,
pananglitan ejectment. Unsaon mn pag.execute,
so kai final judgment of a court mn cya
considering that the amicable settlement has the
effect of final judgment of the court mu.create
cya ug res judicata. So duna nay kasabutan didto
sa brgy. unya mu file ug kaso didto sa court then
you can raise now res judicata, because, unsa mn
ang lega nga katarungan? Because under the
Local Government Code, the amicable settlement
entered into by the parties before the brgy has
the force and effect of a final judgment of a
court. So it will create res judicata.
The next question is how are you going to
enforce the amicable settlement? Ang brgy.
captain mao ang magsilbing sheriff. Ang katong
parties sa amicable settlement katong benefited
sa settlement will have to file motion for
execution didto sa brgy captain. Unya ang brgy.
captain maoy mu.issue ug writ of execution ug
cya pd mao ang mu.execute. pananglitan
ejectment, gikasabutan nga muhawa cya kung
bayran. Okay cge mupahawa mn ko bah kung
bayran nah akong payag2 alang byaan ko ra nah
wa koy kwarta. O cge manong ingon ang tag.iya
taga.an teka ug dyes mil (10thou) manong bstah
mupahawa ka. O cge mupahawa ko, bayran.
Taga.e lng ko ug lima ka adlaw sir. Pagkahuman
sa lima ka adlaw dle mupahawa. So unsaon mn
nah? Pwd nah ipa.eject. knsa mn ang mupahawa
ana niya? O knsa mn ang mupapahawa ana niya?
Ang brgy. captain maoy mubuhat sa trabahoon sa
sheriff.
Dunay kaso nahi.abot sa Supreme Court.
kung pananglitan, ah within what period an
amicable settlement can be enforce, can be
executed by the punong brgy? 6 months. After
the lapsed of 6 months and the amicable
settlement is not yet executed the punong brgy
or the brgy captain has no more power to
execute the same. So unsa mn an buhaton sa
aggrieved party? Dle cya mangayo ug
certification to file action, mao nay sagad sayop
sa brgy captain. D gane mutuman 2ng usa
issuehan ug certification to file action, SAYOP!..
DLE CERTIFICATION TO FILE ACTION. Kanang
mu.issue ka ug certification to file action
nagpasabut nah nga way kasabutan ug kung
naay kasabutan g.repudiate. So what should be
done if there is amicable settlement but the
same has not been enforce w/in 6 months is a
case has to be filed in court, a complaint or a civil
complaint has to be filed in court. unsa may
cause of action niya? Pananglitan ejectment?
Nagkasinabut cle nga mupahawa bstah bayran.
Ok gibayran sa tag.iya pero wa mn mupahawa.
Usa mn buhaton nimu ron? Nilabay na ang 6
months? Ang buhaton ana sa tag.iya mufile cya
ug complaint didto sa court. Unsay cause of
action niya? Dle ejectment. Unsa mn?
Enforcement of the amicable settlement, mao na
iyang cause of action enforcement of amicable
settlement. Ang uban mga abogado kai lage
nagtuo lage kai final judgment mn lage ma
mislead bah ang ilang efile kai motion, motion for
execution didto sa court. SAYOP NAH!. Dle nah
cya motion lang, COMPLAINT jd, ACTION. Kanang
Action lahe sa Motion. Action, is kaso. When you
say Motion duna nay kaso. Kasabot? Kung duna
nay amicable settlement wan a.enforce sa brgy.
you should file a complaint complaint. And what
is the cause of action? The revival or the
execution of amicable settlement.
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Now, under the present rule or law, under
na nah cya sa small claims. Dali nlng kau. Way
abogadohay.
Now, dunay kaso nahi.abot sa Supreme
Court. Ang nahitabo ane ejectment, nagkasinabot
cla, ni.ingon to nag nagpuyo, mupahawa mn ko
dha bah kahibalo gd ko nga d nah akong yuta,
tagae lng jd ko ug onom ka bulan pagpangita ug
katransferan. So nagkasinabot cla April, ni.ingon
ang tag.iya willing ko muhatag sa imuha ug
6months, pinirmaha cla. Pag.abot sa 6months wa
mn jd mupahawa. So unsay gibuhat sa tag.iya
me.file cya ug Motion for Execution didto sa
korte, kai lage nilapse na kuno gkan sa ilang
panagsabot nilapsed na ang onom ka bulan.
Nagsabot gud cla ug April nya diri na cya ni file
ug motion for execution sa korte
pagka.december. So pirmero nga pangutana
sakto ba ang iyang gibuhat? Was the filing of the
Motion for Execution before the MTC is correct?
The answer is NO. For 2 reasons, No.1 it should
not be in a form of motion but an action
through a complaint. Another No.2,
according to the Supreme Court, the
counting of the 6 months period should be
reckoned from the date of the filing of the
amicable settlement if the agreement is to
be executed immediately. Kung ang inyong
kasabutan karon2 daun mupahawa then ang
pagkwenta sa 6months sugod anang pagpirma.
Pero according to the Supreme Court if the
amicable settlement is not to be executed
immediately pareha aneng kasoha, ang
ilang kasabutan is to take effect 6 months
after, matud pa sa SC the counting of the
6mos period to determined whether or not
the execution is to be done by the brgy or
by the court, the counting of the 6mos
period should reckoned form the date when
the agreement is to be executed. Sa ato pa
sa maong problem ang pagkwenta sa 6mos
period to determine asa e.file ang execution ari
bas a brgy or sa korte, adto na paglapse niadtong
ilang kasabutan nga 6mos. So in that case, bsan
pa ug tugutan nato nga sakto to iyang g.file nga
motion sa korte sakto nga gi.pa.agi nya ug
motion dle action, SAYOP gihapon ang iyang
gibuhat kai it should have been file before the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
brgy. okay.. that’s then ruling of the Supreme
Court in the case of Vidal et.al., v. Escueta.
So, in Civil cases are concern Gen. Rule
whether the case is cognizable by MTC or RTC the
case has to be filed before the brgy. Sa ako nang
gikasulti hinumdumi lng ang exceptions. Naa to
mga 12 ka exceptions. Usa ana kanang labor
case d na mu.agi sa brgy.
So let’s go now to another Rule.
RULE OF PROCEDURE FOR SMALL CLAIMS
CASES
This rule is applicable only before the 1 st
level courts for small claims cases. Unya this Rule
shall govern the procedure in cases for payment
of money. Sa ato pa exclusive ni cya for money
claims MONEY CLAIMS RA GYD! Kung duna kay
lain pangayo.on dle ni cya mu.apply. And the
amount is 100thousand exclusive of the interest
and costs.
So for example dunay nangabang dha sa
inyoha. Unya ang iyang abangan nga arrear back
rentals let us suppose the amount is 80thousand.
Small claims d ba. So kung mufile ka ug kaso
demanding for the payment of the back rentals in
the amount of 80thousand, aside from that kung
nangayo ka nga imu cyang papahawaon that is
not under the Rule on Small Claims. Nganu mn?
Because you are not only asking for payment of
money but also for ejectment or for the ejection
of the tenants. Kani cya ha exclusive ra jd ni cya
for money claims.
Another, kung pananglitan dunay
nangutang nimu unya duna cyay g.prenda nimu
duna cyay gi.mortgage ba nga yuta. Pananglitan
iyang hulam is 50thousand unya naa iya
mortgage real property gusto nimu e.foreclose, d
na cya under the Rules on Small Claims. Nganu
mn? Because the Rule of Procedure for Small
Claims is exclusive for money claims, is pure
money claims. PURELY MONEY CLAIMS.
Let’s go now to the important feautures.
Section 4. So this is applicable only in 1st
level courts, in all cases or action which are
purely civil in nature, which are solely for
payment or reimbursement of sum of money and
the civil aspect of criminal actions.
o For example the person is being stab nya
ang iyang gasto for example is
80thousand pwd mn nimu efile ang
criminal case e.separate nimu ang civil
case. If that person decide to file a
separate civil action unya iyang
pangayo.on is kanang 80thousand then
that would fall under the Rule on Small
Claims kai separate mn cya, pero kung
edungan niya diri sa criminal case then
that would not fall under the Rule on
Small Claims.
Then asa mn ni nagagikan ang maong money
claims? Under Section 4 the claims or the money
owed may came from the following:
 Contract of Lease;
 As what we have said earlier. But take
note your claims must only be money
claim. If you are asking for the ejectment
or ejection of the tenant or the lessee then
that would not fall under the rule.
 Contract of Loan;
 Mao ni sagad ron. Nagbaha ron ang
money claims didto sa korte kai ang mga
tigpatanto ron wa na gud abogadohay,
mudiretso na sa korte naa form didto
paxerokan then file. Kanang 100thousand
gamay ra bya kau nah nya hiran pa nimu
ug abogado. Krn wa na mn abogadohay,
2a mn form did2, mufill.up ka mura ra ug
biodata, file nimu bayad daun ka docket
fee, mao ra to.
 What will happen if your claim is more
than 100thousand unya me.file ka ug
money claims? For example 150thousand
imu collectible unya gusto ka nga ma.ari
sa money claims aron d mka.gasto ug
abogado. So imung g.file 100thousand na
money claim nya sa imung huna2 unya
nlng pd neng 50thousand pd. Now take
note that the rest is WAIVED. That would
be considered as a waiver for the rest of
the amount.
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 If the borrower issued a check mao man
nay sagad nga gimik ron sa mga money
lending, pa.issuehon ka ug check aron inig
bounce gani filan daun ka ug violation of
BP 22. Now, kanang BP 22 that is not
under the rule on small claims. Criminal
case mn nah, pero if mu file ka ug small
claims, pananglitan issue ug check nga
50thousang nya filan nimu ug kaso nga
50thousand small claims mn na, now your
right of action to file BP 22 is considered
waived, d nka ka file. Okay, deemed
waived.
 Contract of Services;
 Contract of Sale; or
 Imung auto gibaligya nimu. Gideliver na
nimu ang auto. Second hand na multicab,
imu nang gideliver wa ka bayri. So unsa
may kaso ana? Usa sa cause of action
nimu ana is collection of sum of money.
And considering that the amount is not
more than more than 100thousan, you can
file under the Rules on Small Claims.
 Contract of Mortgage;
 Sa ato pa dunay giprenda. D ba
nag.discuss mn ta ug foreclosure of
mortgage. Bsan ug dunay giprenda pwd
na nimu dle rematihon, pwd na nimu dle
e.foreclose. Prinsipyo nimu unsaon mn ko
nang yuta akong gusto kwarta, gusto ko
nga mabalik sko akong puhonan u gang
interest, dko anang yuta. D pd ko anang
foreclosure kai hasul. So unsa mn buhaton
nimu? So pwd ka mufile ug collection of
sum of money, usa mn na sa imung
option. If the amount is not more than
100thousand you can file it under the Rule
on Small Claims. Of course if you choose
to file a collection of sum of money your
right to foreclose is waived. D mn na pwd
nimu nga dunganon. Unya pananglitan ug
d kabayad? Ahw, katong yuta nga
gi.guaratee pwd to nimu ipapabaligya
pina.agi sa execution sale. Wala tuod nimu
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
g.foreclose, wla tuod ka ni file ug
foreclosure proceeding sa korte ka hasulan
ka pero mao ra japon estoryaha, mao ra
japon direksyon ang imung gipadulngan
lahe lng ang paagi. Ni.file ka ug collection
of sum of money wa mn ikabayad nya
naka.huna2 mn ka sa yuta nga iyang
gi.guarantee mao nlng to ang imung
gipaforeclose sa or gi.levy sa sheriff ug
maoy gibaligya.
 Quasi contract or Contract.
 The enforcement of the brgy amicable
settlement of course the enforcement of
the amicable settlement is not more than
one hundred thousand, because if it is
more than 100thousand ah dle na cya.
SEC. 4. Applicability. — The Metropolitan
Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts, and Municipal Circuit
Trial Courts shall apply this Rule in all
actions which are: (a) purely civil in nature
where the claim or relief prayed for by the
plaintiff is solely for payment or
reimbursement of sum of money, and (b)
the civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule
111 of the Revised Rules Of Criminal
Procedure.
These claims or demands may be:
(a) For money owed under any of the
following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the
following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim covered by this
Rule pursuant to Sec. 417 of Republic Act
7160, otherwise known as the Local
Government Code of 1991.
How are you going to file a case under
the Rule on Small Claims? All you have to do is to
fill up a form which is known as STATEMENT OF
CLAIM. Dle complaint ang ngalan kun dle
Statement of Claim. And it shall be accompanied
by a certification of non-forum shopping and
you should attach to your complaint the
documents wherein you base your action or
other evidence for your claims. For example a
contract of loan then you attach to your
statement of claim the promissory note duly
signed by the borrower. Kana gd pareha sa
buhaton ninyo dha g dug d mu mkabayad ug
tuition mu file mn mu dha I promise to pay my
account. Mao to e.attach kung d mu makabayad.
Certified photocopies of the actionable
document/s subject of the claim, and
affidavits of witnesses. Kung pananglitan way
contrata nga sinuwat then affidavits and the
witnesses’ dri could be the complainant. And
other evidence to support the claim. And
take note No evidence shall be admitted unless
attached to the Statement of Claim, unless there
is good reason shown nga wa nimu na.attach. So
No evidence shall be allowed during the
hearing which was not attached to or
submitted together with the Claim, unless
good cause is shown for the admission of
additional evidence.
No formal pleading, other than the
Statement of Claim described in this Rule, is
necessary to initiate a small claims action.
Asa ka mangita ug form ane? Adto sa
korte. Unya that is not for sale. Unya kung
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nakuwang gani ug copy pwd na nimu epaxerox,
epaphotocopy.
SEC. 5. Commencement of Small Claims
Action. — A small claims action is
commenced by filing with the court an
accomplished and verified Statement of
Claim (Form 1-SCC) in duplicate,
accompanied by a Certification of Non-
forum Shopping (Form 1-A, SCC), and two
(2) duly certified photocopies of the
actionable document/s subject of the claim,
as well as the affidavits of witnesses and
other evidence to support the claim. No
evidence shall be allowed during the
hearing which was not attached to or
submitted together with the Claim, unless
good cause is shown for the admission of
additional evidence.
No formal pleading, other than the
Statement of Claim described in this Rule,
is necessary to initiate a small claims
action.
SEC. 6. Joinder of Claims. — Plaintiff may
join in a single statement of claim one or
more separate small claims against a
defendant provided that the total amount
claimed, exclusive of interest and costs,
does not exceed P100,000.00.
JD: Then Joinder of Claims. You may join
your claims if these are all for money claims and
provided that the total amount will not exceed
100thousand, against the same defendant. This
is what we called as joinder of causes of action.
SEC. 7. Affidavits. — The affidavits
submitted under this Rule shall state only
facts of direct personal knowledge of the
affiants which are admissible in evidence.
A violation of this requirement shall subject
the party, and the counsel who assisted the
party in the preparation of the affidavits, if
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
any, to appropriate disciplinary action. The
inadmissible affidavit(s) or portion(s)
thereof shall be expunged from the record.
JD: Then affidavits. The affidavits must
only state facts of direct personal knowledge of
the affiants. Lawyers are prohibited in appearing
in cases falling under the Rule on Small Claims.
Dle cla pwd na mu.appear. Knsa mn d i mu pirma
sa Statement of Claim? Ang complainant mismo,
ang plaintiff mismo. Pero ang pag.fill up pwd ka
magpa.assist ug lawyer. Ah dri ra makakwarta
ang abogado, pag.assist. Pareha btaw anang
clingan nimu nga buta, Dong palihug ko tanbangi
ug fill up aneng akong pension, ah pag naa na
ang pension taga.an nga ug pahinungod, mao ra
pd nah. Atty. tabangi ko ane ug fill up, mao ra pd
nah, alangan ug TY.yon ra nimu tong abogado.
So with the preparation of the affidavits, so pwd
ra ka magpa.assist ug lawyer.
Then payment of filing fees. An indigent
litigant pwd cya ma exempt just like in the
regular procedure or in the ordinary cases, he
can litigate his case as an indigent, but he has to
file a motion. Meaning to say he has to
accompany his Statement of Claim a Motion to
litigate as indigent, nya take note atong mga
requirements. Knsa mn mu rule sa iyang motion?
In the case of Multi-sala the executive judge, pero
kung single sala the presiding judge.
SEC. 8. Payment of Filing Fees. — The
plaintiff shall pay the docket and other
legal fees prescribed under Rule 141 of the
Revised Rules of Court, unless allowed to
litigate as an indigent.
A claim filed with a motion to sue as
indigent (Form 6-SCC) shall be referred to
the Executive Judge for immediate action in
case of multi-sala courts, or to the
Presiding Judge of the court hearing the
small claims case. If the motion is granted
by the Executive Judge, the case shall be
raffled off or assigned to the court
designated to hear small claims cases. If
the motion is denied, the plaintiff shall be
given five (5) days within which to pay the
docket fees, otherwise, the case shall be
dismissed without prejudice. In no case
shall a party, even if declared an indigent,
be exempt from the payment of the
P1,000.00 fee for service of summons and
processes in civil cases.
The court just like in some other
procedure, the court may muto propio dismiss
the claim if the courts finds any of the ground for
the dismissal of the claim. Makakita gani cya ug
mga grounds, any of those grounds, Gen. Rule
mn gd na court cannot muto propio dismiss a
case, there has to be motion to dismiss. Pero
dunay mga exceptions, usa ana katong lack of
jurisdiction d b. Unya prescription, naa na sa
Sec.1 Rule 9. In cases govern by the Rule of
Procedure of Small Claims bsag dri jurisdiction,
bstah any of the grounds to dismiss the case,
improper venue, failure to state the cause of
action, pwd cya ma dismiss sa korte muto propio.
Why? Because just like in Rule on Summary
Procedure, Motion to Dismiss is prohibited under
the Rule on Small Claim.
SEC. 9. Dismissal of the Claim. — After the
court determines that the case falls under
this Rule, it may, from an examination of
the allegations of the Statement of Claim
and such evidence attached thereto, by
itself, dismiss the case outright on any of
the grounds apparent from the Claim for
the dismissal of a civil action.
SEC. 10. Summons and Notice of Hearing. —
If no ground for dismissal is found, the
court shall forthwith issue Summons (Form
2-SCC) on the day of receipt of the
Statement of Claim, directing the defendant
to submit a verified Response.
The court shall also issue a Notice (Form 4-
SCC) to both parties, directing them to
appear before it on a specific date and time
for hearing, with a warning that no
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unjustified postponement shall be allowed,
as provided in Section 19 of this Rule.
The summons and notice to be served on
the defendant shall be accompanied by a
copy of the Statement of Claim and
documents submitted by plaintiff, and a
copy of the Response (Form 3-SCC) to be
accomplished by the defendant. The Notice
shall contain an express prohibition against
the filing of a motion to dismiss or any
other motion under Section 14 of this Rule.
Now, Section 10, if the court cannot
found any ground to dismiss the case it will issue
summons. Unya together with the summons
duna na daun notice of hearing. Kaniadto under
the ordinary procedure ang ipadala summons ra
jd, kai ang kanang petsa sa hearing unya ra nah
sa pre-trial. Pero under the Rule on Small Claims,
inig dawat nimu sa summons naa na daun notice
of hearing. Hearingon daun.
Attach to the summons, mao ni e.attach sa
summons:
1. copy of the Statement of Claim
2. The notice of hearing. Naa nay petsa
kung kanus.a mu mag.hearing.
3. A copy of the form. Forma katong
fill.upanan, copy of the response. Sa
ato pa duna nay porma daan para sa
imung tubag. Unya ang answer diri
gitawag ug response. Ang complaint
gitawag ug Statement of Claim. Unsa mn
gd kalahi.an ana nganung gilahi mn?
In.order to distinguish one from the other.
So kung mu.ingon nga response that is
govern by the Rule on Small Claims.
4. Aside from the copy of the form for the
response pakapinan pa jd ug Special
Power of Attorney. Because just in case
you cannot personally attend in the
hearing naa nay form sa SPA kung knsa
na imung ipadala. Now take note that the
absence must be for justifiable cause. Kai
kung ni.absent lng ka kai dka gusto
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
makakita sa kihante kai maglagot ka dle
na pwd. It must be for justifiable cause.
So mao tong mga papers ha nga e.attach sa
summons. There are about 4 or 5. Statement of
Claim, Response, SPA, Notice of hearing, unya
ang summons ang lima.
Then Response, within how many days? 10 days.
And it shall be accompanied by copies, certified
true copies of the documents wherein the
defendant would based his defense. So for
example kai money claims ra mn jd ni, kung
nakabayad na cya, he has to attach in the
response the receipts. It shall be filed w/in 10
days, non-extendible. No evidence shall be
allowed during the hearing unless there is
justifiable reason why is it that the same was not
attached to the answer.
SEC. 11. Response. — The defendant shall
file with the court and serve on the plaintiff
a duly accomplished and verified Response
within a non-extendible period of ten (10)
days from receipt of summons. The
Response shall be accompanied by certified
photocopies of documents, as well as
affidavits of witnesses and other evidence
in support thereof. No evidence shall be
allowed during the hearing which was not
attached to or submitted together with the
Response, unless good cause is shown for
the admission of additional evidence.
Then all the grounds for the dismissal of the
claim should be pleaded. Question: what will
happen if the defendant fails to file his response?
Now under Section 12, should the defendant fail
to file his Response within the required period,
and likewise failed to appear the hearing on the
date set for the hearing, the court shall render
judgment on the same day. Should the defendant
fails to file his Response during the required
period but take note ane ha second paragraph
but appears on the date set forth the hearing the
court shall ascertain what defense he has to offer
and proceed to hear, or mediate or adjudicate
the case on the same day as if a response has
been filed. So unsa mn bo.ot ipasabot ana? Pwd
ra ka nga dle mufile ug tubag bstah mu.tunga lng
ka during the hearing unya dad.on nimu ang
imung mga evidence. Why? Because under the
2nd par. of Section 12, even if you have not filed a
response but you appear during the hearing the
court will inquire what will be your defense and if
your defense is meritorious the court will
consider it as if you have filed your response.
SEC. 12. Effect of failure to file response. -
should the defendant fail to file his
response within the required period, and
likewise fail to appear at the date set for
hearing, the court shall render judgment on
the same day, as may be warranted by the
facts.
should the defendant fail to file response
within the required period but appears at
the date set for hearing, the court shall
ascertain what defense he has to offer and
proceed to hear, mediate or adjudicate the
case on the same day as if a response has
been filed.
Then the defendant may also raise counter
claims. It could be compulsory, it could be
permissive. Provided, that the amount is w/in the
coverage of the Rule. By this time you be able to
distinguish between compulsory or permissive. D
pa gani ka ka.distinguish kinahanglan ka mubalik
sunod tuig.
SEC. 13. Counterclaims Within the
Coverage of this Rule. — If at the time the
action is commenced, the defendant
possesses a claim against the plaintiff that
(a) is within the coverage of this Rule,
exclusive of interest and costs; (b) arises
out of the same transaction or event that is
the subject matter of the plaintiff’s claim;
(c) does not require for its adjudication the
joinder of third parties; and (d) is not the
subject of another pending action, the
claim shall be filed as a counterclaim in the
Page | 246

Response; otherwise, the defendant shall
be barred from suit on the counterclaim.
The defendant may also elect to file a
counterclaim against the plaintiff that does
not arise out of the same transaction or
occurrence, provided that the amount and
nature thereof are within the coverage of
this Rule and the prescribed docket and
other legal fees are paid.
Section 14. These are the Prohibited Pleadings
and Motions. Propareha ra sa Summary
Procedure. Unsa man?
 Motion to dismiss the complaint
 You are not allowed to file a
motion to dismiss.
 Then you might ask, since the
defendant cannot file a motion to
dismiss, what is he going to do if
there is or are grounds to dismiss
the case? He has to allege it in
his response. So dha ka
magkinahanglan ug abogado kai
unsa mn nimu pagdetermine
kung wa ka ka.skwela balaod
unsa mn nah nimu pag.determine
nga kana cya ground ni cya
pagdismiss sa kaso. So mangayo
ka ug assistance sa abogado.
 Motion for a bill of particulars
 (c) Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
 Take note ha reconsideration of
judgment. Sa ato pa pwd ka
mka.file ug motion for
reconsideration upon
interlocutory order.
 (d) Petition for relief from judgment;
 (e) Motion for extension of time to file
pleadings, affidavits, or any other paper;
 (f) Memoranda;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 (g) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
 Sa ato pa dka kafile ug Petition
for certiorari against
interlocutory order of the court
 Then you might ask unsa.on mn
nah nimu ron ug pananglitan
naay interlocutory order? Now,
take note wla ra bay appeal ane.
We will discuss that later on.
 (h) Motion to declare the defendant in
default;
 (i) Dilatory motions for postponement;
 (j) Reply;
 (k) Third-party complaints; and
 (l) Interventions.
SEC. 14. Prohibited pleadings and motions.
- the following pleadings, motions, or
petitions shall not be allowed in the cases
covered by this rule:
(a) motion to dismiss the complaint;
(b) motion for a bill of particulars;
(c) motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
(d) petition for relief from judgment;
(e) motion for extension of time to
file pleadings, affidavits, or any
other paper;
(f) memoranda;
(g) petition for certiorari,
mandamus, or prohibition against
any interlocutory order issued by
the court;
(h) motion to declare the defendant
in default;
(i) dilatory motions for
postponement;
(j) reply;
(k) third-party complaints; and
(l) interventions.
Then, Section 15, tanan mga forms is available
didto sa Clerk or Court.
SEC. 15. Availability of Forms; Assistance
by Court Personnel. — The Clerk of Court or
other court personnel shall provide such
assistance as may be requested by a
an plaintiff or a defendant regarding the
availability of forms and other information
about the coverage, requirements as well
as procedure for small claims cases.
Now, Section 16. Appearance. The parties shall
appear at the designated date of hearing.
Kanus.a mn cla makahibw nga mao nay hearing
nahinumdum mu nga katong pagpadala sa
summons gpadad.an na ug notice of hearing. Of
course a copy of the notice of hearing is also sent
to the plaintiff. Then what about if a party cannot
appear for a justifiable reason, he cannot appear
during the hearing? Mao na nay naay SPA. Wa
nkay gasto. But take note that your non-
appearance is for justifiable reason, and your
representative must not be a lawyer. He must not
be a lawyer.
SEC. 16. Appearance .- the parties shall
appear at thedesignated date of hearing
personally.
Appearance through a
representative must be for a valid
cause. The representative of an
individual-party must not be a
lawyer, and must be related to or
next-of-skin of the individual-party.
Juridical entities shall not be
represented by a lawyer in any
capacity.
The representative must be authorized
under a special power of attorney ( form 5-
scc ) to enter into an amicable settlement
of the dispute and to enter into stipulations
or admissions of facts and of documentary
exhibits.
Now, lawyers are prohibited from appearing in
cases involving Rule on Small Claims. Pananglitan
ug cya gyd ang kihante unsa.on mn nah?
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Mu.issue nlng cya ug SPA kai dle mn cya pwd
mu.appear? kana exception to the rule na cya.
Except if he is the party himself. Kung ikw lawyer
for example ikw defendant g.filan ka ug small
claims kai nangutang ka, mao mn nang abogado
hilig mn nah ug pangutang kai salig mn nga
abogado, kana ganing mga credit cards company
mahibaw.an gani nga abogado ka e.dis.approve
na imung application, kai ilang experience ang
mga abogado gahi mubayad ug utang. Labi na
ug judge nuh? Heheheh..
Section 17 Look at, No attorney shall appear in
behalf of or represent a party at the hearing,
unless the attorney is the plaintiff or defendant
himself.
Bantay mu ane second paragraph just in case dri
mu ane just in case dle mu ma.successful ug take
ug bar, If the court determines that a party
cannot properly present his/her claim or defense
and needs assistance, the court may, in its
discretion, allow another individual who is not an
attorney to assist that party upon the latter’s
consent.
SEC. 17. Appearance of Attorneys Not
Allowed. — No attorney shall appear in
behalf of or represent a party at the
hearing, unless the attorney is the plaintiff
or defendant.
If the court determines that a party cannot
properly present his/her claim or defense
and needs assistance, the court may, in its
discretion, allow another individual who is
not an attorney to assist that party upon
the latter’s consent.
SEC. 18. Non-appearance of Parties. —
Failure of the plaintiff to appear shall be
cause for the dismissal of the claim without
prejudice. The defendant who appears shall
be entitled to judgment on a permissive
counterclaim.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What about if the defendant fails to
appear? Failure of the defendant to appear
shall have the same effect as failure to file
a Response under Section 12 of this Rule.
JD: meaning to say the court has to render
judgment.
This shall not apply where one of two or
more defendants who are sued under a
common cause of action and have pleaded
a common defense appears at the hearing.
o So ato na neng g.discuss pananglitan 4
mu kabuok gikiha usa ra ang mitubag
unya pareha mu ug depensa, ang iyang
defense ma benefited ka.
Failure of both parties to appear shall cause
the dismissal with prejudice of both the
claim and counterclaim.
o Sa ato pa kung clang duha wa nitunga
ah, dismiss.
SEC. 19. Postponement When Allowed. — A
request for postponement of a hearing may
be granted only upon proof of the physical
inability of the party to appear before the
court on the scheduled date and time. A
party may avail of only one (1)
postponement.
o Section 19, Postponement, only 1 it is
allowed. But it must be for justifiable
reason.
Section 20 this is now the duty of the court.
SEC. 20. Duty of the Court At the beginning
of the session the judge shall read aloud a
short statement explaining the nature,
purpose and the rule of procedure of small
claims cases.
o So at the hearing then judge will bring
the parties into an amicable settlement. And
the same shall be reduced into writing. Unya
the amicable settlement shall be submitted to
the court and the court will render judgment
based on the amicable settlement. Timan.e ni
basic ra japon ni kaau ikapila na ni gibalik sa
bar, kanang decision based on the
compromise agreement, d b nagkasinabot mu,
simple ra kaau nang compromise agreement
inyong ibutang inyong kasabotan gd didto.
Okay, the plaintiff and the defendant had
agreed on the ff., 1. That the defendant will
pay his loan in the amount of 100thousand, at
10thousand per month. Failure on his part to
pay any of the installment the same shall be
entitled for the plaintiff to ask for the
execution. Now, kanang inyong amicable
settlement mubuhat na ug decision ang court
ana kai nagkasinabot na gd mu, dle na
muconduct ug hearing ang court. Unsay
buhaton sa korte? Mubuhat na cya ug
decision. Unya unsaon mn niya pagbuhat ug
decision nga wa man hearing? Katong inyong
compromise agreement mao ra to kopyahon
sa korte in toto, nya mu.render daun cya ug
decision. Ingnon daun sa korte, decision based
on the compromise agreement. The parties
has submitted a compromise agreement as
follows: (you copy the compromise
agreement). Finding the same to be consistent
with Law, Public Order, Morals, and Public
Customs. The same are hereby approved and
adopts the same as decision in this case.
Unya take note,that kanang decision based on
compromise agreement is immediately
executory. It will not wait the 15 day period, dili
na kay kanang 15 day period para na itong mga
regular decision na. Kanang decision based on
compromise agreement is immediately
executory.
Then what about the parties, sagad jud hinuon
aning small claims kay wala lage abugado
murag estimate nako, 95% sa mga cases nga
filed under small claims, compromise.In fact in
my court, 100% compromise. Dala lubag sa
kamot. Sagad ana, diha ra mana maghangyo-ay
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sa interest. Hala tabag lubag aning kihante aron
musogot, o sige mao na na.Kung di gyud
magkasinabot, the court has to render decision,
unsaon mana pag presenter ug ebidensiya sa
kihante di mana kibaw. Aw ang korte na sad ang
mangutana niya, mao ba ni imong affidavit, mao
ba ni ang promissory note, ug ang judge maoy
mangutana.Then based on that, the court will
render decision. One day from the termination of
the hearing, so kung nahuman ang hearing karun
ugma duna nay decision ang kaso. Unsaon man
pud na nga dali raman kayo, ah ang huwes duna
nay template didto nga decision ilis-ilisan nalng
to ug name of parties. Take note, decision shall
be rendered on the same day, the same day,
meaning kung nahuman ta karun tomorrow.
Kaluoy pud tawon sa huwes nahuman ug alas 4
imong pa desisyunon hangtod alas singko. Ang
day ani should be interpreted as 24 hours.
And then, [look at]2x the 2nd par of Sec. 23
SEC. 23. Decision.�After the hearing, the
court shall render its decision on the same
day, based on the facts established by the
evidence (Form 13-SCC). The decision shall
immediately be entered by the Clerk of
Court in the court docket for civil cases and
a copy thereof forthwith served on the
parties.
The decision shall be final and
unappealable.>>>Meaning you cannot final an
appeal.The decision of the Court is final.Murag
Supreme Court ba. Then you might ask what is
the remedy of the aggrieved party. The only
remedy is certiorari. Then you might remember
ganiha na dili pwede maka file ug certiorari,ang
gi mention ganiha na dili ka file ug certiorari
against an interlocutory order.Kani decision na ni
siya dili na interlocutory order.
So just in case, disagree jud ka sa decision sa
court kay lagi nanglaktod ra ang judge, you can
file a petition for certiorari. Asaman ka mufile ug
petition for certiorari? So kinsa may ni render
ani? MTC, asa man ka mufile ug certiorari?---RTC.
SEC. 25. Applicability of the Rules of Civil
Procedure. � The Rules of Civil Procedure
shall apply suppletorily insofar as they are
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
not inconsistent with this Rule.
Then execution. The rules of civil procedure,
katong sa ordinary cases shall be applied
suppletorily. So meaning to say in the absence of
any rule on smallclaims, the rules of civil
procedure shall suppletorily apply.
Now you notice, under the Rules of Summary
Procedure, kanang 100,000 na claims sa una
governed na siya sa Summary Procedure, unya
here comes the Rules on Small Claims, deemed
amended nato siyang Rules on Summary
Procedure, so dili nato siya ma govern sa Rules
on Summary Procedure kung dili ang 100,000 ma
govern nasa Rules on Small Claims.
ANSWERS FOR THE EXAM [2ND]
 What is the remedy from the decision of
the Office of the Pres? For ex., the
governor is being suspended ?>>>Naa
sa Rule 43, petition for review in the CA.
Then of course in your petition for review,
you may ask issuance of temporary
restraining order but if you really believe
that the Office of the President acted w/
grave abuse of discretion then you file for
petition for certiorari. Kanang petition for
certiorari mao nay pina ka last recourse
nimu. Ayaw nahuna-huna dayun,huna
hunaon nimo pwede ba appeal? Unya
 Okay for ex., enforcing a writ of execution
that is only applicable when the court or
tribunal has no jurisdiction or if it has
jurisdiction but it acted with grave abuse
of discretion or in excess of its jurisdiction
amounting to lack of jurisdiction. Pareho
ba anang sakyanan, nagsubay anang
karsada ni tipas inexcess na na siya so it
amounts to lack of jurisdiction.
 Then what is the remedy if a person who
is not a party to a case but whose
property has been levied by the sheriff
bec the sheriff thought that the property
is owned by the defendant. First
question, can you intervene in that case?
>>> The answer is no. Remember Rule
19 intervention, when can you intervene?
Before rendition of judgment. Here,
timan-an ninyo unsa ng mga remedies
dili lang kay unsa kun dili kanus-a mana
nimo ma avail. Ex., kahibaw ka na appeal
but kanus-a man ka mu apilar? Kay kung
mu-apilar kadiri sa ika 20 ka adlaw. Wa
na. So for ex., yourremedy is to file for
motion for intervention, question when
man? So for example a writ of execution
has been issued, meaning the decision
has already become final and executor.
Can you intervene bec your property has
been levied upon? The answer is NO why
bec the court has already rendered a
decision and infact the decision has
already become final and executory. Can
you file a separate action to vindicate
your claim over the property? YES. Can
that court where you file an action issue
a preliminary injunction or temporary
restraining order to restrain the sheriff?
YES. Can that be considered as
interference? NO, that is allowed by the
Rules.
issued by RTC Mandaue in a civil case,
the sheriff levied upon several pieces of
machinery and equipment found in the
premises of the defendant in a place of
business in Cebu City. Ben Ty filed a 3rd
party claim w/ the sheriff asserting that
the prop levied upon by the latter belong
to him and not t o the defendant. So
question. Can Ben Ty intervene the case
and ask the court to resolve the third
party claim? >>> No., bec there has
been a decision. Then if Ben Ty decides to
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file a separate action in Cebu City may he
validly obtain a writ of injunction from
RTC-CC to enjoin the sale.>>.YES bec the
props did not belong to the defendant
and aside frm that, it cant be considered
an interefernce bec the Rules of Court
allowed such remedy.
 Can a public officer illegal ousted from
office, file a quo warranto case?>>>YES,
bec under the Rules a public officer
claiming to be entitled to an office can
file a quo warranto case in his own name.
It is not only the SolGen / PublicPros who
can file a case.
 A court issued a writ of Preliminary
Attachment, what would be the
appropriate remedy of the defendant if
he wants to dissolve the writ? >>>
Counterbond
 The vessel sank and there are several
passengers died. Is a class suit proper?
>>>NO bec each has separate
claim/injuries not shared in common by
others. Take note of the requisites of
class suit.
 In ejectment case and the period of the
contract has already expired. Is demand
to vacate still required? >>> NO, Gen.
Rule demand to vacate and to pay is
required w/ ejectment cases unlawful
detainer however if the period has
already expired, if the lease is terminated
then demand is not anymore required.
 Now if the defendant files an appeal,
would it stay the execution of the
decision? Pananglitan ejectment
case,nakadaug ang plaintiff of course
unsay buhaton sa court, ordering the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defendant to vacate. The defendant files
a notice of appeal, would it stay the
decision? >>>NO, bec remember there
are 3 reqs. In order for the decision in an
ejectment case to stay. Stay gani sa ato
pa, dili siya papahawa-on unsamay
buhaton? 1—file a notice of appeal
2---put up supersedeas bond, unsa
may basehan sa amount sa supersedeas
bond? Ag katong amount nga gi-award sa
korte ng gibayad nimo sa back
rentals.mu file ra gani ka ug appeal dili
gani ka mu put up ug supersedeas bond,
while the case is pending appeal you
should, 3--- deposit periodically the
rentals . These 3 must concur. If you
just file a noticeof appeal it will not stay
the decision.
 What is the remedy of the decision of
Energy Regulatory Commission? Petition
for Review before CA. Will it stay the
decision? Now kanang mga quasi-judicial
body, it will not stay the decision unless
the CA directs otherwise.
 Unsa manang judgment non protunct?
>>> Now for then. This is a judgment
directing the recrding of a decision w/c
was not recorded.Dunay decision na na
render pero wama recorded. Diba
decision has to be recorded in the book?
Waman ma enter, mao ang court will
render a decision w/c directed that it be
entered. Kung order na siya na wala ma
enter unya gusto ipaenter then that
would be ORDER NON PROTUNCT.
 Defendant files demurer to evidence, beh
kanus-a to mufile ug demurer to evidence
? After the plaintiff rested its case. The
court granted the demurrer, meaning to
say the trial court dismiss the case,
however on appeal it was reversed. What
should the appellate court do with the
case, should it return the case to the trial
court? NO,it shalldecide the case based
on the evidence on record. Kanang
demurrer to evidence sa civil basta gani
na i- grant that is considered a waiver of
the right of the defendant to present
evidence. Kung i-deny then you can still
present your evidence. So the appellate
court should not return the case to the
trial court for the reception of evidence. It
should decide the case based on the
evidence on record.—Another demurrer
to evidence in civil cases does not require
leave of court you can file your demurrer
to evidence w/out permission from the
court. Lahi sa crim. Cases kay
magkinahanglan kag leave of court,kung
way leave of court and demurrer is
denied you are deemed to have waived
your right to present evidence.
 Illegal dismissal, decision of the
NLRC,unsa may remedy?>>> Petition for
certiorari in the CA
 For ex., the plaintiff filed a complaint for
sum of money attaching thereto the PN.
Take note that a PN is an actionable doc.,
and bec it is an actionable document, it
must be denied under oath. Specficically
denied under oath. What do you mean
under oath. Meaning the answer must be
verified so if you submit an answer w/out
verification it is considered an admission
to the PN. And what will happened? There
could be now judgment on the pleadings.
[X filed a complaint for sum of money
against Y for failure to pay his loan.
Attached to the complaint is PN signed
by Y, the defendant in his unverified
answer containing 2 paragraphs
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specifically denied all the allegations in
the complaint for lack of knowledge as to
the veracity of the allegations . X moved
to render judgment on the pleadings, is
the motion meritorious?] YES , on 2
grounds: 1. The answer was
unverified, bec it is unverified, it is
deemed to have admitted the
authenticity and genuineness of the PN
2. No specific denial. Kanang specific
denial, dili na mahimong specific denial
just bec you use the word specific denial,
when you say specific denial you must
state the truth. If an allegation is w/in
your knowledge wether its true or not
and you say you have no knowledge that
is considered an admission. For ex.,
muingon didto sa complaint that the
defendant obtained a loan for an amt of
400,000 as evidence by the PN attached
hereto as Annex A unya gibutang didto sa
imong answer,the defendant denies
specifically par 2 for lack of knowledge to
the truth or veracity of the allegation,
that is considered as admission. NGanu
man? Bec nganu man muingon man ka
nga lackof knowledge, di diay ka
makasulti kung tinuod ba nga nakapirma
ka or wala? So kanang pag-ingon nimo na
lack of knowledge gamiton lang na nimo,
that it is really truethat you have any
knowledge ,kung muingon ka wa kay
knowledge pero naa diay kay knowledge
that is an admission.
 Duha ka klase sa specific denial. When
you specifically deny and state what is
really the truth and the second is lack of
knowledge provided nga you don’t really
have knowledge. Kanus-a man for ex.,
mahibaw-an na wala jud kay knowledge
for ex., ibutang didto sa lain na par didto
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sa katapusan dapit “by reason of the
adamant refusal of the defendant to pay
his loan, the plaintiff suffers sleepless
nights” unya unsa may imong tubag ana,
ah kana in good faith na na the
defendant has no knowledge to the
veracity of the allegations in par xxx.
Kana in good faith na na,di na na
maconsider na admission. Nganu man
kay wa man jud tinuod kay knowledge
kung nag suffer bana siya ug sleepless
nights.
 So kung mu deny ka unsaon mana
pagtubag nimo. Ah the defendant
specifically denies the genuineness and
due execution of the PN attached to the
complaint bec the truth of the matter is
he was misled to sign the doc sincehe is
illiterate. Ingana,mao nay pag deny. Unya
gawas ana,imo pagyud na siyang i-verify
under oath didto sa katapusan.
 On motion of the defendant, the MTC
dismiss a case for lack of jurisdiction over
the subject matter as it is w/in the RTC.
Believing that the case is really w/in the
jurisdiction of the MTC the plaintiff
appealed the order to the RTC. Suppose
the RTC would affirm the order of the
MTC, what should the RTC do w/ the
case?>>>>the RTC should here the case
as if the case is originally filed w/ them .
 Then what is the remedy of the decision
of the civil service commission? Rule 43
 Decision of the Ombudsman in an admin
cases, remedy? Rule 43 gihapon
 Where are you going to file a case, you
want to file a case for the defendant to
execute a deed of sale covering a lot in
Marikina city, the plaintiff is a resident of
Quezon City the defendant Pasay City but
the prop is located inMArikina. Where are
you going to file the case? RTC
Marikina,basta gani duna nay yuta, real
action na gani na, adto sa place where
the prop is located.
 Can you ask for support pendent lite in a
criminal case such as in rape even if the
case is still pending? >>> YES bec that is
allowed by the rules.
 IS there litis pendentia if the ejectment
case is filed, the defendant, for ex., Mr. P
files an ejectment case against Mr. D. Mr.
D later on files an action for quieting of
title. Is there litis pendentia? NO bec the
issue in ejectment case is only
possession. Remember the elements of
litis pendentia.
 Leila files an ejectment case against Mary
before MTC. After the court rendered
decision against Mary, She appealed the
decision to the RTC later the RTC
rendered decision affirming the MTC
suppose Mary wants to review the RTC
decision on pure questions of law, what
should be the proper remedy?
>>>Ejectment,MTC,appeal RTC, affirmed
ang MTC, unsay sunod, pure questions of
law? CA, petition for review. UNya kay
pure questions of law man aw kay
kanang pure questions of law kanag
gikan sa RTC nga muabot sa SC kana ng
exercising its orginal jurisdiction.
 On Jan 2, 2012, [ah kani Swagman Hotel
ni,ako ning gi-assign ninyo] Agnes
borrowed 1M from her close friend Gwen
payable w/in one year or until Jan 2,
2013. Unfortunately sometime in Sept. 2,
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2012 their rels turned sour, immediately
thereafter Gwen demanded Agnes to pay
the entire amount w/in 10 days from
receipt of the demand letter. Agnes
refused to pay arguing that her loan is
not yet due. Gwen filed a collection case
against Agnes. The defendant filed a
motion to dismiss for lack of cause of
action as the loan was not yet due. While
the motion was still pending on Jan 4,
2013, Gwen filed an amended complaint
alleging that the debt was already due.
Should the court admit the amended
complaint?
 Then what is the remedy sa default? The
defendant has been improperly declared
in default, you filed motion to reconsider,
denied, >>> what is the remedy ah of
course certiorari or naa poy laing remedy
ana, diba after default naa may decision,
file appeal. Pwede ka mufile ug appeal
the decision. There could be two
answers, either the two is correct. Either
file an appeal or file petition for certiorari.
Oh improperly kay nay default unya wa
siya gi serve ug summons, isn’t there
grave abuse of discretion? That is grave
abuse of discretion.
 Where can you execute a decision by
mere motion? 5 years, if it is 7 years
through an action.What would be the
cause of action? The revival of the
decision.
 Specific performance or in the alternative
amount of damages of
300,000.Jurisdiction?MTC,naa bay or,
alternative man.
 Writ of injunction? >>>RTC [incapable of
pecuniary estimation daw]
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 Replevin, 200,000 motorcycle? MTC
 Interpleader, car worth 300,000?MTC
 Probate of a will 400,000?MTC
 Juan filed a case for recovery and
possession of real property against
Manuel. While the case is pending, Juan
bribed the Judge in order to win the case.
After receipt of adverse decision of the
court and upon knowing that the judge
was bribed, Manuel filed a motion for new
trial on the ground of fraud. Is the motion
meritorious?---diba nihatag ko ninyo ug
ex., nga gibayran katong counsel, unsay
remedy is it not considered as extrinsic
fraud? YES, that is extrinsic fraud bec his
counselwas bribed he was not given any
fair trial. He was not given full
opportunity to present his evidence. How
much more if it was the judge who was
bribed. gamita sad tawn ang common
sense oy… […hihihi, nalimot man, di man
common sense, alzheimers man
nyahaha…joke joke joke   ]
 Motion for new trial and opening of trial,
distinction? Ay kadaghan,re-opening of
trial the ground is only interest of justice
whereas motion for new trial,FAME and
newly discovered evidence.
 The court renders decision,ejectment
motion for execution was issued.Sheriff
went to the premises but the defendant
refused to vacate.Plaintiff filed a motion
to cite the defendant for contempt. Is the
motion meritorious? >>>No,for 2 would be Rule 45, petition for review on
reasons. 1.-- It should not be thru a
motion,it should be thru a petition a
separate action for “petition for indirect
contempt” 2.—Writ of execution is
directed to the sheriff not to the
defendant .
 The court ordered the defendant to
demolish his house, he refused
todemolish his house and vacate the
premises, so the plaintiff files a motion
for execution.Suppose the sheriff will now
demolish the house,will it be proper?
>>>NO there should be a special order
for demolition,not an execution but
special order for demolition.Unsa may
buhaton sa plaintiff, the plaintiff has to
file another motion, a motion for
demolition,mao nay gitawag ug special
order.
 What is the remedy if you are cited w/
direct contempt? Petition for certiorari w/
the CA w/ a prayer for TRO.
 Abugado ka nagdungan2x imong
dimalas,duha ka kaso jud, sa usa ka
adlaw, puros ka pildi.Pagkabuntag
nakadawat kag decision ang imong Kaso,
gi-file sa RTC dismiss,pagkahapon
nakadawat na sad kag decision, ang
imong gi-apilar didto sa CA,dismiss aw gi-
reverse meaning pildi pud ka .File kag
motion for recon dungan nimo w/in 15
days , puros gi-deny,unsa may remedy
nimo sa duha?>>> As regards the RTC,
your remedy is ordinary appeal,meaning
by filing a notice of appeal by RTC, that is
how you are going to perfect your appeal,
filing a notice of appeal. What about that
the decision of the CA? What is your
mode of appeal? Your mode of appeal
certiorari. How are you going to perfect
your appeal? Filing a petition for review
on certiorari w/ the SC and furnish a copy
of the petition to the advserse party and
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to court.That is how you are going to
perfect the appeal.
CRIMINAL PROCEDURE
Master the remedies.
When availed.
What are the requisites?
Question: What is the difference between
Criminal Procedure and Criminal Law?
Answer: Criminal Law is the law that defines
crimes, treats of their nature and provides for
their penalties.
Criminal Procedure provides for the
method by which a person who has committed a
crime is arrested, tried or punished.
What do you mean by jurisdiction?
- Jurisdiction refers to the power or
authority of a court to hear, try and
decide a particular case. As regards
to criminal cases, it also included the
power to impose penalty.
What are the elements of Criminal Jurisdiction?
There are three elements of criminal jurisdiction
and these all must be present so that the
proceedings conducted by the court would be
valid.
1. Jurisdiction over the Territory or Territorial
Jurisdiction
Refers to the place or area wherein the
geographical boundaries of the place within
which a court has jurisdiction to act judicially,
and outside of which each juridical acts are null
and void. Kana man gud matag korte duna na
siyay particular place na assigned niya. So for
example, RTC-Cebu City, Cebu City ra jud nah
siya.
This refers to the place or area within
which the court has the jurisdiction or power to
act judicially or to exercise its power.
Remember: In criminal cases, venue is
jurisdictional. Venue is an element of jurisdiction.
Unlike in civil cases, wherein venue is not
jurisdiction. Venue in civil cases, does not affect
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the jurisdiction of the court and therefore, it can
be waived. Here in criminal cases, ang place of
the commission of the crime will not only
determine venue pr the place where to file the
case, but will also determine jurisdiction.
The crime or the offense must have been
committed or any of its essential ingredients took
place within the territorial jurisdiction of the court
as defined under BP 129. Uns aman na balaora
nagsulti na kanang lugara na maong korte na ang
iyang jurisdiction ana ra jud na lugara? Kanang
BP 129. Naa diha gipangbutang ang specific
places na ang usa na korte pwede maka-exercise
iyang jurisdiction.
2. Jurisdiction Over the Subject Matter
This refers to the imposable penalty or
nature of the offense charged in the complaint or
information in accordance with the law enforced
at the time of institution of the action.
Meaning jurisdiction over the offense.
This is conferred by law. This cannot e waived.
This refers to the imposable penalty or nature of
the offense.
At present, the jurisdiction of the RTC
cobvers criminal case wherein the imposable
penalty is more than 6 years. Meaning 6 years
and 1 day up or over. Whereas, MTC or first lever
courts have jurisdiction over criminal cases
wherein imposable penalty is 6 years and below.
But remember nga dunay mga kaso nga bisan
below 6 years are under jurisdiction of RTC
because there are specific provisions of law nga
ang sulti na anha jud nah sa RTC.
General Rule: Mao to ato gisulti 6 years
and 1 day or over, RTC. Pero dunay mga kaso na
bisan pa ang penalty ubos sa 6 ka tuig naa sa
RTC. Ngano man? Kay dunay balaod na specific
jud nagmention na kaning mga offenses adto sa
RTC.
Example; Libel, Pila man penalty sa libel
kay pricion correctional ra minimun or medium, it
does not exceed 6 years. But what court ha
jurisdiction over libel cases, RTC. Why because
the law itself provides that it should be within the
jurisdiction of RTC.
Another, pila may penalty sa possession
of gambling parapharnelia, Section 12 of RA
9165. The penalty for that is only 6 months – 4
years imprisonment, Wa kaabot ug 6 years. Pero
as aman nimo file anh kaso? Sa RTX. Why? Kay
under RA 9165, all violations of RA 9165 should
be filed with the RTC.
Another, gi-mention sa VAWC, duna may
mga cases diha na below 6 eyars. Example
kulatahon nimo asawa, physical injuries, slight.
Wa akabot 6 years and 1 day. Pero kaya n balaod
mismo sa VAWCE na any violation of this law
shall be filed with the RTC.
This is conferred by law. This cannot e
waived. This cannot be subjected to the
agreement of the parties.
3. Jurisdiction over the person of the accused.
The court can acquire jurisdiction over
the person of the accused through arrest. That
siw hy the court has to issue warrant fo arrest.
Aside from arrest, the court can also axquire
jurisdiction voer the preson fo the accused by
voluntary appearance in court or surrender fot he
accused inc ourt.
There is an exception here. Remember
when we discuss ont eh Rule of Summary
procedure, under this, in criminal cases governed
by summary procedure, the court is not allowed
to issue warrant of arrest. Under sa regular
procedure man gud sa crim pro, nig file sa kaso
gikan fiscal, promiro buhaton sa judge basaho
ang akso, unya if makakita siya probable casue,
issue dayon siya ug warrant. Ngano mu-issue
man? So that the court can acquire jurisdiction
over the person of the accused. Pero sa mga kaso
na under sa Rule of Summary Procedure, ang
korte di mu-issue ug warrant. Prohibited ang
court. Instead mu-issue ug warrant, ang korte
mu-issue ug order, directing the accused to
submit counter-affidavit.
Now, Summary procedure dili pwede
muissue ang court ug warrant of arrest. By way
of exception, in cases governed by summary
procedure, kung ang accused fails to obey an
order of the court, That would be the exception to
the the general rule. The court may issue warrant
of arrest. Mao ranah ang higayon na makaissue
ang court warrant in cases under summary
procedure. For example, afer the submission of
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counter-affidavit, the case is set for arraignment
and the accused failed to appear despite notice
of arraignment. Kung di mutunga, the court could
now issue warrant of arrest.
Kay dili man kaha pwede maka issue
warrant of arrest criminal case governing
summary procedure, usnaon man pag-acquire ug
jurisdiction over the person of the accused?
Ingon sa legal experts, kanang pagserve or
dawat sa order directing him to submit coubter-
afiidavit, mao na nah siya paagi para acquire sa
jurisdiction over his person, muparehog
summons.
So those are the 3 elements of
jurisdiction. #3.
Jurisdiction over the person of the
accused, this can be waived. Jurisdiction over the
Territory or Territorial Jurisdiction and Jurisdiction
Over the Subject Matter cannot be waived. And
these can be questioned anytime even on appeal
for the first time. While Jurisdiction over the
Person of the Accused can be waived. If the court
does not have jurisdiction over the person of the
accused, and the accused wants to question the
jurisdiction of the court over his person, he has to
file a motion to quash before his arraignment.
Kans-a man nah mahitabo nga ang korte di man
ka acquire jurisdiction over the person of the
accused? Kana diay gi-arrest ka illegally. For
example the arrest was illegal, ug. Pananglitan
improper ang pagaka-issue sa warrant fo arrest.
So, the court did not acquire jurisdiction over
your person. Kay illegal man na arrest. If you
want to question, file a motion to quash for lack
of jurisdiction over your person, and you should
do it before arraignment. Because if the accused
fails to file such motion, the same would be
considered waived.
Take note of the Doctrine of Continuity of
Jurisdiction or Doctrine of Adherence of
Jurisdiction- Once the court acquired jurisdiction
over the case, it will continue to have jurisdiction
until the termination of the case, UNLESS, there
is a specific provision of law, for example a new
law is enacted., specifically depriving jurisdiction
of the court over the case.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Pila jurisdiction sa RTC criminal cases?
GENRAL RULE: 6 years and 1 day and over.
Pananglitan, naay fine. Aside from
imprisonment, the law also imposes a fine
pananglitan fine of 1,000. Unsa may basehan
ana?
- If aside from imprisonment, the law
also imposes penalty of fine,
disregard the fine. Just look at the
imprisonment. Maski pila pa nah ang
amount sa fine, just look at the
imprisonment.
Another, what about if the penalty is only fine?
- Duna may mga crimes na penalty
kay crimes ra. Then look at the
amount. Because if the penalty is
more than 4,000, that could be under
RTC. 4,000 and below, that is under
the first level court, EXCEPT,
reckless imprudence cases.
Remember, na tanang kaso na
reckless imprudence iyaha jud nah sa
first level court. Kanang Reckless
Imprudence resulting in Homicide,
Reckless Imprudence in Physical
Injuries, Reckless Imprudence
resulting in Damage to Property –
tanan ana First Level Court.
Take Note: there are questions in
Remedial nga mu-touch sa Criminal.
Kinahanglan duna kay working
knowledge sa Criminal. Like
prescription. Number of years sa
prescriptive period. Has the crime
prescribed?
Kanang Reckless Imprudence resulting in
Damage to Property and penalty ana fine ra jud,
walay imprisonment. Unya ang amount sa fine
mag-depende sa value sa damage. Example, ang
imohang auto car, nadasmagan, reckless driving,
damage 20,00. Ang fine pud ana 20,000. Asa
jurisdiction ana kay 20,000, which is more than
4,000?
- MTC, because kay tanan kaso na
reckless imprudence anhi jud nah sa
MTC, disregard the fine.
Jurisdiction of the court is determined by the
principal penalty imposable.
For example, dunggab pero wa namatay.
Attemted homicide. Unya penalty?Wala nakaabot
ug 6 years, that is MTC. Nangayo man damages
500,000 kay na-hospital dugays a hospital, bisan
attempted nadugay sa hospital coz diabetic siya.
Dao siya gasto. Acyual damages of 500,000. Asa
man i-file ang kaso?
- Iyahang imprisonment below 6 years,
pero ang damages na gipangayo
500,000 man. Asa man i-file? MTC,
disregard the amount of damages.
Look at the principal penalty or
damages asked.
Pananglitan, nakaligis ka, ang naligsan manager
man sa banko, dako kaayo damages or danyos.
Kay bayran man nimo iyahang loss of earning
capacity. Kwentahon man nimo up to the age of
80 minus iyang present age of death.
Example,80- 40(iyang age) times yearly income
minus 50 mga deductions. Mao imo bayran.
For example ang damages na gi-file Reckless
Imprudence Resulting to Homicide, unya nagayo
damages for 1 Million. Tungod sa atong loss of
earning capacity kay manager siya bangko, dako
sweldo. Where will you file the case? What court
has jurisdiction over the case?
- MTC. Why? Because all cases of
reckless imprudence fall within the
jurisdiction of the MTC. Look at the
principal penalty imposable.
Disregard the civil liability.
SANDIGANBAYAN
Ang korte na jurisdiction whose sometimes
confusing is, the jurisdiction of Sandiganbayan.
Sayon-sayon lang man sa RTC ug MTC.
SUPREME COURT
Regarding Criminal Cases, duna siyay Original
and Exclusive Jurisdiction over Petitions for
Certiorari, Prohibition and Mandamus
against the Court of Appeals and
Sandiganbayan.
Naa pa diay sa Criminal Cases?
Page | 254

- Yes! Kay sometimes ang korte mag-
hearing ug criminal cases, maka-
issue man interlocutory orders or
maka issue ug decision na di mag-
subay sa balaod. So unsa may-
remedy nimo ana? Certiorari, or
Mandamus or Prohibition.
So, if you want to restrain Sandiganbayan,
Mandamus, or Court of Appeals.
It has concurrent jurisdiction with the CA
over Petitions for Certiorari, Prohibition and
Mandamus against RTC.
Then with RTC, Petitions for Certiorari,
Prohibition and Mandamus against the
Lower Courts pr MTC.
Sa ato pa, if a First-Level Court issues an order a
grave abuse of his discretion, pwede nimo siya
ma-filan ug Petition fr Certiorari, Prohibition or
Mandamus. Asa i-file? Either RTC or Court of
Appeals or Supreme Court. BUT, remember
Hierarchy of Courts. ANSWER: RTC.
Unsa ra tong instances nga ang SC pwede maka-
take cognizance? If there is special and important
reason.
SC has also exclusive Appellate Jurisdiction
(Pero ayaw pa-mislead kay kang Regalado,
gibutang diha na duna siyay exclusive appellate
jurisdiction sa decisions of RTC for which the
penalty is reclusion perpetua, life sentence)
Dili na nah ron, kay [ang mga kaso] criminal
cases decided by the RTC and the penalty
imposed is reclusion perpetua or life sentence,
this is now appealable in the CA. Adto na nah sa
CA. Dili na nah pwede mo-diretso sa Supreme
Court.
Unsa to ng desisyona (decision) nga mao’y
hinungdan nga imbis RTC ngadto sa Supreme
Court? Unsa to ng kasoha?
People vs. Mateo. Wherein the Supreme Court
ruled that there should be an intermediate
appeal. Nganu man na? Unsa man sa’y rationale
sa Supreme Court ana nganu man nga iya man
usang ipa-review usa sa Court of Appeals? Kay
just imagine kung magpadayon na, tan-aw sa
Supreme Court malumos sila didto. Liman ka ana
kadaghang RTC, unya kada decision nga
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
reclusion perpetua unya life sentence diretso
didto’g han-ok. Unya review’hon ang facts.
Kay kaning sa reclusion perpetua ug life sentence
bug-at man kaau ni. The Supreme Court has to
review the facts, has to review the evidence. So,
mao na nga “ah ato ning ipasa ngadto beh, ipa-
review sa ni nato’s ubos-ubos nato.” So, ipa-
review didto sa Court of Appeals ang finding of
facts.
Pero gikan sa Court of Appeals, ug i-sustain
galing, ang mode of appeal supposed to be,
usually gikan sa CA Rule 45 man na padung didto
sa Supreme Court, di ba? Pero kung ang penalty
gani nga gi-impose is reclusion perpetua ug life
sentence, it is only by mere notice of appeal.
Nganu man na? Tungod kay mao ma’y sulti sa
Constitution nga “in cases wherein the
penalty imposed is reclusion perpetua or
life sentence or death, it can be brought to
the Supreme Court by notice of appeal.” So
that is in compliance with the Constitution.
Then duna pud siya’y appellate jurisdiction by
petition for review on certiorari from CA or
from Sandiganbayan or even from RTC
where only an error or questions of law are
involved.
So for example sa mga ginagmay nga mga kaso,
for example frustrated murder/frustrated
homicide decided by the RTC, appealed to the
Court of Appeals, sustained by the Court of
Appeals, the decision of the Court of Appeals can
be brought to the Supreme Court through petition
for review on certiorari under Rule 45.
COURT OF APPEALS
Ok, jurisdiction sa CA.
Annulment of judgments of the RTC
Ato na ning gi-discuss sa annulment.
Then concurrent, Supreme Court and RTC.
Exclusive appellate jurisdiction. By appeal
in the RTC in cases commenced therein.
Then by petition for review from the RTC in
cases appealed thereto from the lower
courts.
For example, slight physical injuries, asa man na
i-file? MTC. Gi-kumbekto (convicted) sa MTC,
kuan jud ka, wa ka ma-satisfied, asa nimu i-
appeal? RTC. Gi-sustain, gi-affirm ang MTC. Ok,
MTC imung gi apilar ngadto sa RTC, sustained or
affirmed. Asa man ka ron padung beh? Di ka
mosulti, asa ka padung? Ha? Adto ka sa, asa
man? CA. Unsaon man nimu pag-adto sa CA? Ha?
Lakaw lang ka didto? Through petition for
review under Rule 42. Unya dili ka kontento sa
CA kay gi-affirm, asa na man ka padung? Adto
ka’s Supreme Court. Unsaon man nimu pag-adto
sa Supreme Court? Petition for review on
certiorari under Rule 45.
Pananglitan, slight physical injuries rendered by
MTC, affirmed to(sic) RTC, imung gi-apilar ngadto
sa RTC, gi affirm, and you want to question the
decision of the RTC now on pure question of law.
Unsaon man nimu ni, asa man ka padung beh?
Ok, CA lang gihapon through petition for review.
Kay kadtong from RTC to CA, kadto ra tong in the
exercise of its original jurisdiction. Pero sa civil
cases ra na. Katong sa exercise of its original
jurisdiction.
SANDIGANBAYAN
Then Sandiganbayan. Kaning Sandiganbayan,
mao na ni gi ingun nato nga medyo libug-libog ni
gamay. Unsa ma’y jurisdiction sa
Sandiganbayan?
Violations of RA 3019
So Anti-Graft. Anti-Graft ra? Dili. Pwede pud RA
1379. What is RA 1379? Katong “forfeiture
proceedings”. Kadto bitaw’ng mga public
officials nga who have acquired ill-gotten wealth.
Pwede man na nga kanang iyahang mga
kabtangan i-forfeit in favor of the government.
Aside from criminal cases; aside from
malversation, aside from plunder, puede na siya
nga pasakaan ug forfeiture proceedings.
Under RA 3019, adto na nimu i-file sa
Sandiganbayan, provided that one of the
accused or all of the accused duna’y Salary
Grade 27. Dako ni siya, dako ni siya’g rango.
Tingali ni siya director or assistant director.
Take note: “one of the accused”
So, dili necessary nga tanang mga accused.
Basta kay duna’y usa. Unya dili man na nimu
ibulag. Pananglitan duna siya’y mga co-accused
nga mga private persons. For example, Regional
Director for example sa DPWH unya duna siya’y
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mga co-conspirators nga mga private engineers.
Unsa man ni, buwagon to nimu ug file ang sa
mga engineers? Dili, isahon ra na. Asa man ni i-
file? Sandiganbayan.
Sa ato pa, ang Sandiganbayan puede nga maka-
acquire ug jurisdiction to hear cases against
private persons who are co-accused in a
case involving a public officer nga Salary
Grade 27.
Now, ayaw pagtuo nga kadto rang mga public
officers nga Salary Grade 27. Duna’y mga
instances, there are instances nga the Salary
Grade of a public officer is below Salary Grade 27
but Sandiganbayan has jurisdiction over them.
Ok, before that. Magtuo ‘nya mo, unsa man ng
Salary Grade gud? Ang akong nahibaw-an ang
grade gikan ra man sa Grade 1 kutob sa Grade 7.
Unsa man na nga ni-abot na man na’g Grade 27?
Kanang magtrabaho sa gobyerno, duna na’y mga
Salary Grade. Pinaka-ubos, Salary Grade 1, Grade
2, Grade 3, Grade 4. Salary grade na siya, dili na
grado sa eskwelahan. Ang presidente murag
Salary Grade 33. Pareho na sila’g Salary Grade
sa Chief Justice, I think Senate President, pila
kaha na(?).
“Judge? Judge?” Ay na mo pangutana’s ahong
sweldo gud!
Judges sa MTC, Salary Grade 26. RTC, Salary
Grade 29. MTCC, Salary Grade 27. METC, 28. But
when it comes to members of the judiciary,
among sweldo pareho ra mi’g sweldo sa kanang
mga Assistant prosecutors. Gagmay ra kaayo’g
sweldo ning mga judges.
“Pila man?” Secret! Haha.. [Ah, but when it
comes to members of the judiciary, ah before
that. ]
There are public officers that are under the
jurisdiction of the Sandiganbayan even if
their Salary Grade is not Salary Grade 27.
Unsa man ni? So for example, provincial
governors, ok dagko na. Vice governors, dagko
na. Members of the Sangguniang Panlalawigan,
provincial treasurers. Provincial treasurers, I think
mga Salary Grade 24. Provincial Assessors,
provincial engineers and other department
heads.
Kani sila, bisag below Salary Grade 27 ni sila,
considering nga kani sila specifically gi-mention
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sa balaod nga within sila sa jurisdiction sa
Sandiganbayan, disregard their Salary Grade. So,
as long as you are a department head sa
province ug sa city, you fall under the jurisdiction
of Sandiganbayan.
Then Officials of the diplomatic service
occupying the position of consul and higher.
Philippine Army and Air Force colonels,
naval captains and other officers of high
rank.
By the way, unsa mang balaora nga mao’y
nagsugo nga mao ni jurisdiction sa
Sandiganbayan? PD 1606, as amended by RA
7975 and RA 8249.
Now another.
Officers of the PNP occupying the position
of Director, provincial director.
Kaning provincial director tali colonel ni, colonel.
And those holding the rank of Senior
Superintendent or higher. Senior Supt., pila man
ni? I think this is Lieutenant Colonel and higher.
Look at, City and Provincial prosecutors and
their assistants.
Kanang assistant prosecutor, pareho na namu,
Salary Grade 26. Pero kung makasa na, adto sa
Sandiganbayan. Pareho namu. Kung makasa mi,
Sandiganbayan. Unya nganung ngadto man sa
Sandiganbayan nga Salary Grade 27 man kaha?
Dili tanan. There are public officers whose salary
grade are below Salary Grade 27 but if they
commit crimes in relation to their duties, in the
performance of their duties, Sandiganbayan has
jurisdiction over them because THE LAW ITSELF
SPECIFICALLY PROVIDES that their cases fall
under Sandiganbayan.
Presidents, directors or trustees or
managers of government-owned or
controlled corporations.
Unsa man ng government-owned or controlled
corporations?
So, for example PhilHealth, di ba(?), PAG-IBIG,
that is a government-owned or controlled
corporation. So, ang ilang presidente ana, bisan
pag below Salary Grade 27, under sa
Sandiganbayan.
Another, state universities. Unsa ma’y example
sa State University nga inyong nahibaw-an? UP,
Cebu Normal University.
Take note: presidents, directors or trustees. Kana
bang member sa board ba. BOD. Member of the
Board of Directors or member of the Board of
Trustees. Sa UP, Board of Regents na sila.
Now, there was one case, you know under sa
balaod sa nag-establish sa UP, a student who is
elected as president of the Student
Council/Student Government will automatically
become a member of the Board of Regents. Now,
here comes a president of the student
government who was given funds by former
President Estrada. He (*she) was given funds and
the purpose is to be used for student projects.
But the problem is [that] the money,
nagtuo/nakalimot siguro to nga dili to iyaha,
nakalimot siya sa instruction sa President nga
para to sa student body, iyahang na-
misappropriate. Iyahang na-misappropriate
together sa iyahang igsoon. Now, she was
charged (she pa gyud noh?) with estafa before
Sandiganbayan.
Now, she filed a motion to quash arguing that
Sandiganbayan does not have jurisdiction over
her case because she is not a public officer.
Matud pa niya, “Estudyante pa man ko. Wa gani
ko’y sweldo. Kay kumo estudyante man ko, so
Sandiganbayan does not jurisdiction over my
case.” Unsa ma’y sulti sa Supreme Court? Ingon
ang Supreme Court nga that is clearly provided
under PD 1606 that those members of the Board
of Directors or Trustees of state universities or
educational institutions or foundations are within
the jurisdiction of the Sandiganbayan. Unya mi-
ingon sad siya, “Unya kay ang akong kaso dili
man Anti-Graft? Dili man RA 3019 beh, estafa
man?” Ah mi ingon pud ang Supreme Court nga
dili man exclusively RA 3019 ang pwede ra ma
hearing didto sa Sandiganbayan. All those cases
which are committed by public officers in relation
to the performance of their duties. Ikaw kay
naka-commit man ka anang maong crime while
performing your duty as a member of the board
of trustees being a representative of the student
body, so Sandiganbayan has jurisdiction. You
read the case of Serana vs. Sandiganbayan,
January 22, 2008.
SERANA vs. SANDIGANBAYAN
G. R. No. 162059
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

January 22, 2008 A. Violations of Republic Act No. 3019, as " (f) City and provincial
amended, other known as the Anti-Graft prosecutors and their assistants, and
Moreover, it is well established that and Corrupt Practices Act, Republic Act officials and prosecutors in the Office of
compensation is not an essential element of No. 1379, and Chapter II, Section 2, Title the Ombudsman and special prosecutor;
public office. At most, it is merely incidental to VII, Book II of the Revised Penal Code,
the public office. where one or more of the accused are " (g) Presidents, directors or
officials occupying the following positions trustees, or managers of government-
Facts: in the government, whether in a owned or controlled corporations, state
permanent, acting or interim capacity, at universities or educational institutions or
Petitioner Serana was a senior student of UP- the time of the commission of the foundations.
Cebu. A student of a state university is a known offense:
as a government scholar. A system wide of
alliance of student councils within the State " (2) Members of Congress and officials
(1) Officials of the executive branch thereof classified as Grade "27'" and up
University, filed a complaint for Malversation of occupying the positions of regional
Pubic Funds and Property with the Office of the under the Compensation and Position
director and higher, otherwise classified Classification Act of 1989;
Ombudsman for allegedly malversed and failed as Grade "27" and higher, of the
to materialize the renovations of Vinzons Hall Compensation and Position Classification
Annex. The Ombudsman after due investigation Act of 989 (Republic Act No. 6758), " (3) Members of the judiciary without
found probable cause to indict petitioner and her specifically including: prejudice to the provisions of the
brother Jade for estafa before the Constitution;
Sandiganbayan. Serana moved to quash the
information. She calimed that the Sandiganbayan " (a) Provincial governors, vice-
governors, members of the sangguniang " (4) Chairmen and members of
does not have any jurisidiction over the offense Constitutional Commission, without
charged or over her person, in her capacity as UP panlalawigan, and provincial treasurers,
assessors, engineers, and other city prejudice to the provisions of the
student regent. As a student regent, she was not Constitution; and
a public officer since she merely represented her department heads;
peers, in contrast to the other regents who held
their positions in an ex officio capacity. She " (b) City mayor, vice-mayors, " (5) All other national and local officials
addsed that she was a simple student and did members of the sangguniang classified as Grade "27'" and higher
not receive any salary as a student regent. panlungsod, city treasurers, assessors, under the Compensation and Position
engineers, and other city department Classification Act of 1989.
Issues: heads;
1. WON, the Sandiganbayan has B. Other offenses of felonies whether
jurisdiction over the case? YES "(c ) Officials of the diplomatic simple or complexed with other crimes
2. WON, the accused-movant is service occupying the position of consul committed by the public officials and
included in the contemplated and higher; employees mentioned in subsection a of
provision of law? YES this section in relation to their office.

Ruling: " (d) Philippine army and air force

1. YES. Section 4 of R.A. No. 8249 further
modified the jurisdiction of the Sandiganbayan.
As it now stands, the Sandiganbayan has
jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan
shall exercise exclusive original
jurisdiction in all cases involving:
colonels, naval captains, and all officers
of higher rank;
" (e) Officers of the Philippine
National Police while occupying the
position of provincial director and those
holding the rank of senior superintended
or higher;
C. Civil and criminal cases filed pursuant
to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
" In cases where none of the accused are
occupying positions corresponding to
Salary Grade "27'" or higher, as
prescribed in the said Republic Act No.
6758, or military and PNP officer
mentioned above, exclusive original
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jurisdiction thereof shall be vested in the
proper regional court, metropolitan trial
court, municipal trial court, and municipal
circuit trial court, as the case may be,
pursuant to their respective jurisdictions
as provided in Batas Pambansa Blg. 129,
as amended.
" The Sandiganbayan shall exercise
exclusive appellate jurisdiction over final
judgments, resolutions or order of
regional trial courts whether in the
exercise of their own original jurisdiction
or of their appellate jurisdiction as herein
provided.
" The Sandiganbayan shall have
exclusive original jurisdiction over
petitions for the issuance of the writs of
mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other
ancillary writs and processes in aid of its
appellate jurisdiction and over petitions
of similar nature, including quo warranto,
arising or that may arise in cases filed or
which may be filed under Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986:
Provided, That the jurisdiction over these
petitions shall not be exclusive of the
Supreme Court.
" The procedure prescribed in Batas
Pambansa Blg. 129, as well as the
implementing rules that the Supreme
Court has promulgated and may
thereafter promulgate, relative to
appeals/petitions for review to the Court
of Appeals, shall apply to appeals and
petitions for review filed with the
Sandiganbayan. In all cases elevated to
the Sandiganbayan and from the
Sandiganbayan to the Supreme Court,
the Office of the Ombudsman, through its
special prosecutor, shall represent the
People of the Philippines, except in cases
filed pursuant to Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986.
" In case private individuals are charged
as co-principals, accomplices or
accessories with the public officers or
employees, including those employed in
government-owned or controlled
corporations, they shall be tried jointly
with said public officers and employees in
the proper courts which shall exercise
exclusive jurisdiction over them.
" Any provisions of law or Rules of Court
to the contrary notwithstanding, the
criminal action and the corresponding
civil action for the recovery of civil
liability shall, at all times, be
simultaneously instituted with, and jointly
determined in, the same proceeding by
the Sandiganbayan or the appropriate
courts, the filing of the criminal action
being deemed to necessarily carry with it
the filing of the civil action, and no right
to reserve the filing such civil action
separately from the criminal action shall
be recognized: Provided, however, That
where the civil action had heretofore
been filed separately but judgment
therein has not yet been rendered, and
the criminal case is hereafter filed with
the Sandiganbayan or the appropriate
court, said civil action shall be
transferred to the Sandiganbayan or the
appropriate court, as the case may be,
for consolidation and joint determination
with the criminal action, otherwise the
separate civil action shall be deemed
abandoned."
The said law represses certain acts of
public officers and private persons alike
which constitute graft or corrupt
practices or which may lead thereto.
Pursuant to Section 10 of R.A. No. 3019,
all prosecutions for violation of the said
law should be filed with the
Sandiganbayan.
2. YES. It is not only the salary grade that
determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has
jurisdiction over other officers enumerated in P.D.
No. 1606. In Geduspan v. People, We held that
while the first part of Section 4(A) covers only
officials with Salary Grade 27 and higher, its
second part specifically includes other executive
officials whose positions may not be of Salary
Grade 27 and higher but who are by express
provision of law placed under the jurisdiction of
the said court. Petitioner falls under the
jurisdiction of the Sandiganbayan as she is
placed there by express provision of law.
Section 4(A)(1)(g) of P.D. No. 1606 explicitly
vested the Sandiganbayan with jurisdiction over
Presidents, directors or trustees, or managers of
government-owned or controlled corporations,
state universities or educational institutions or
foundations. Petitioner falls under this category.
As the Sandiganbayan pointed out, the BOR
performs functions similar to those of a board of
trustees of a non-stock corporation. By express
mandate of law, petitioner is, indeed, a public
officer as contemplated by P.D. No. 1606.
Moreover, it is well established that
compensation is not an essential element of
public office. At most, it is merely incidental to
the public office.
Then members of the Congress and officials
classified as Salary Grade 27 up.
The members of the judiciary and without
prejudice to the provisions of the
Constitution.
What do you mean by without prejudice to the
provisions of the Constitution?
Meaning to say, duna ma’y members a judiciary
nga impeachables. Meaning to say, you cannot
file any case against them unless they are
impeached. So, for example the former Chief of
Justice Corona. So, karun nga na-impeached na
siya, puede na siya ma-charge sa
Sandiganbayan. Mao na’y pasabot anang
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“without prejudice”. Dili na sila pwede i-charge
nimu dayon, i-impeach usa.
Then Chairmen and members of the
Constitutional Commissions, of course
without prejudice to the provisions of the
Constitution.
Then all other national and local officials
classified as Salary Grade 27 and higher
under the Compensation and Position
Classification Act of 1989.
Now, one of the issues raised in that Serana case
is that she asked that the case be quashed
because she was not charged with a violation of
Anti-Graft.
Question: Does Sandiganbayan have jurisdiction
over cases other than violation of Anti-Graft and
Corrupt Practices Act?
The answer is YES. Look at letter B. Other
offenses or felonies whether simple or complexed
with other crimes committed in relation to their
office by the public officials and employees. Sa
ato pa, “other offenses”.
So, for example, an army general would commit
murder while performing his duties. So, for
example makadakop sila ug NPA, unya ilang i-
salvage, unsa ma’y crime nga na-commit?
MURDER! Is it a violation of Anti-Graft? No. So,
asa man nimu na i-file? He commited a crime in
relation to the performance of his function. Asa
man na i-file? SANDIGANBAYAN. Asa man na mu-
fall? “Other offenses or felonies”.
So, dili lang kay Anti-Graft. So sa ato pa,
regarding jurisdiction of Sandiganbayan, tan-
awon nimu una ang POSITION sa accused.
“Standing position ba na siya, sitting position
ba”. Position, unsa man nga position buot
pasabot ani? Ang iyahang SALARY GRADE. Or
even if below Salary Grade 27, as long as that
the law expressly states that they fall within the
jurisdiction of the Sandiganbayan.
Another is NATURE OF OFFENSES. Now, tan-awon
nimu kung ang kaso kuan ba, you look at the
cases whether public office is an element of the
crime.
Duna ba’y mga crimes nga ang public office usa
sa mga elements? YES. Malversation diay,
example. Dili ba usa sa mga element sa
malversation is that the accused must be a public
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
officer and he must be an accountable officer of
public funds (another element)? He must be a
public officer. So niining mga kasoha wherein
public office is an element, ah klaro kaayo ng
Sandiganbayan.
Now, in other cases wherein public office is NOT
an element, possible ba nga maka-acquire ug
jurisdiction ang Sandiganbayan? YES, if these
cases are committed in relation to the
performance of their functions.
For example, murder. In the crime of murder, is
public office an element? Is it necessary that to
commit murder, is it an element that the accused
must be a public officer to be charged with
murder? No, BUT if you commit murder in
relation to the performance of your function, the
Sandiganbayan has jurisdiction provided of
course, look at also the position of the [public
officer]. Okay, look at this case of Barriga vs.
Sandiganbayan April 26, 2005.
Barriga vs. Sandiganbayan
G.R. Nos. 161784-86
April 26, 2005
Facts:
Petitioner Dinah Barriga seeks to nullify
the Resolution of the Sandiganbayan in denying
her motion to quash the information and motion
for reconsideration thereof.
The petitioner (Municipal Accountant)
and Virgilio Villamor (Municipal Mayor), both from
Carmen, Cebu, were charged with malversation
of funds. The information was then amended
charging them with illegal use of public funds
wherein they allegedly connived and collaborated
in using the said fund[s] to a public purpose
different from that which it was intended or
appropriated. Such criminal case filed with the
Sandiganbayan.
Petitioner assails the jurisdiction of
Sandiganbayan over the criminal cases filed
against her considering that her position only
holds a Salary Grade 24 and that she is not an
accountable officer to be charged with such.
Issue:
Whether or not Sandiganbayan has
jurisdiction over the criminal case filed against
the petitioner together with the Municipal Mayor.
Ruling:
Yes. Sandiganbayan has the original
jurisdiction to hear the criminal case filed against
the petitioner and co-accused.Pursuant to
Republic Act No. 8249, which amended Section 4
of Presidential Decree No.1606, the
Sandiganbayan has original jurisdiction over
crimes and felonies committed by publicofficers
and employees, at least one of whom belongs to
any of the five categories enumeratedat the time
of the commission of such crimes.
Two classes of public office-related crimes
under Sec.4(b), RA 8249:
a. Public office is constituent element - offense
cannot exist without office
b. Intimately connected with public office -
perpetrated by p.o./employee while in exercise of
functions
The Sandiganbayan has original
jurisdiction over criminal cases involving
crimes and felonies under the first
classification. The Sandiganbayan likewise has
original jurisdiction over criminal cases involving
crimes or felonies committed by the public
officers and employees enumerated in Section(a)
(1) to (5) under the second classification if the
Information contains specific factual
allegations showing the intimate connection
between the offense charged and the public
office of the accused, and the discharge of his
official duties or functions - whether improper or
irregular.
The public office of the accused Municipal
Mayor Virginio Villamor is a constituent element
of malversation and illegal use of public funds or
property. Accused mayor’s position is classified
as SG 27.
Since the Amended Informations alleged
that the petitioner conspired with her co-accused
in committing the said felonies, the fact that
her position as municipal accountant is
classified as SG 24 and as such is not an
accountable officer is of no moment; the
Sandiganbayan still has exclusive original
jurisdiction over the cases lodged against her.
In other words, in criminal cases filed before
Sandiganbayan, it must be alleged that the crime
is committed in relation to the performance of
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the function of the accused. It must be alleged.
Unya, isulti nimu. Dili lang kay kutob lang ka
anang i-allege nimu nga “the crime is committed
in relation to the performance of their functions”.
Isulti nimu ang facts nganu man maka-ingon man
ka “in relation”.
In one case, mao ra na’y gibutang. Charge ug
murder, unya gibutang didto “The undersigned
accuses so and so of the crime of murder
committed in relation to their functions”, mao ra!
Wala gibutang nganung naka-ingon nga “in
relation”. Ah gi-dismiss oi! Kay kana kunong
pagsulti nga in relation to the performance of
their function, that is only a conclusion of law.
You should state the facts nganu mang ka-ingon
ka nga in relation. Unsa ma’y example sa facts
nga maka-ingon ka nga in relation?
For example, “Being a PNP member and while
conducting custodial investigation, shot at the
victim, killing the latter.” So, mao na’y mga acts
nga maka-ingon ka nga committed in relation to
the performance of their duties. Look at the case
of Lacson vs. Executive Secretary, 301 SCRA
298.
Lacson vs. Executive Secretary
301 SCRA 298
January 20,1999
Facts:
Eleven persons believed to be members
of the Kuratong Baleleng gang, an organized
crime syndicate involved in bank robberies, were
slain by elements of the Anti-Bank Robbery and
Intelligence Task Group (ABRITG). Among those
included in the ABRITG were petitioners and
petitioner-intervenors.
Acting on a media expose of SPO2
Eduardo delos Reyes, a member of the Criminal
Investigation Command, that what actually
transpired was a summary execution and not a
shoot-out between the Kuratong Baleleng gang
members and the ABRITG, Ombudsman Aniano
Desierto formed a panel of investigators to
investigate the said incident. Said panel found
the incident as a legitimate police operation.
However, a review board modified the panel’s
finding and recommended the indictment for
multiple murder against twenty-six respondents
including herein petitioner, charged as principal,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
and herein petitioner-intervenors, charged as
accessories. After a reinvestigation,
theOmbudsman filed amended informations
before the Sandiganbayan, where petitioner was
charged only as an accessory.
The accused filed separate motions
questioning the jurisdiction of the
Sandiganbayan, asserting that under the
amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant to
Section 2 of R.A. 7975. They contend that the
said law limited the jurisdiction of the
Sandiganbayan to cases where one or ore of the
“principal accused” are government officals with
Salary Grade 27 or higher, or PNP officials with
rank of Chief Superintendent or higher. Thus,
they did not qualify under said requisites.
However, pending resolution of their motions,
R.A. 8249 was approved amending the
jurisdiction of the Sandiganbayan by deleting the
word “principal” from the phrase “principal
accused” in Section 2 of R.A. 7975.
Petitioner questions the constitutionality
of Section 4 of R.A. 8249, including Section 7
which provides that the said law shall apply to all
cases pending in any court over which trial has
not begun as of the approval hereof.
Issues:
(1) Whether or not Sections 4 and 7 of
R.A. 8249 violate the petitioners’ right to due
process and the equal protection clause of the
Constitution as the provisions seemed to have
been introduced for the Sandiganbayan to
continue to acquire jurisdiction over the Kuratong
Baleleng case.
(2) Whether or not said statute may be
considered as an ex-post facto statute.
(3) Whether or not the multiple murder of
the alleged members of the Kuratong Baleleng
was committed in relation to the office of the
accused PNP officers which is essential to the
determination whether the case falls within the
Sandiganbayan’s or Regional Trial Court’s
jurisdiction.
Held:
Petitioner and intervenors’ posture that
Sections 4 and 7 of R.A. 8249 violate their right
to equal protection of the law is too shallow to
deserve merit. No concrete evidence and
convincing argument were presented to warrant
such a declaration. Every classification made by
the law is presumed reasonable and the party
who challenges the law must present proof of
arbitrariness. The classification is reasonable and
not arbitrary when the following concur: (1) it
must rest on substantial distinction; (2) it must
be germane to the purpose of the law; (3) must
not be limited to existing conditions only, and (4)
must apply equally to all members of the same
class; all of which are present in this case.
Paragraph (a) of Section 4 provides that it
shall apply “to all cases involving” certain public
officials and under the transitory provision in
Section 7, to “all cases pending in any court.”
Contrary to petitioner and intervenors’ argument,
the law is not particularly directed only to the
Kuratong Baleleng cases. The transitory provision
does not only cover cases which are in the
Sandiganbayan but also in “any court.”
There is nothing ex post facto in R.A.
8249. Ex post facto law, generally, provides
retroactive effect of penal laws. R.A. 8249 is not a
penal law. It is a substantive law on jurisdiction
which is not penal in character. Penal laws are
those acts of the Legislature which prohibit
certain acts and establish penalties for their
violations or those that define crimes and provide
for their punishment. R.A. 7975, as regards the
Sandiganbayan’s jurisdiction, its mode of appeal
and other procedural matters, has been declared
by the Court as not a penal law, but clearly a
procedural statute, one which prescribes rules of
procedure by which courts applying laws of all
kinds can properly administer justice. Not being a
penal law, the retroactive application of R.A.
8249 cannot be challenged as unconstitutional.
In People vs. Montejo, it was held that an
offense is said to have been committed in
relation to the office if it is intimately connected
with the office of the offender and perpetrated
while he was in the performance of his official
functions. Such intimate relation must be alleged
in the information which is essential in
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determining the jurisdiction of the
Sandiganbayan. However, upon examination of
the amended information, there was no specific
allegation of facts that the shooting of the victim
by the said principal accused was intimately
related to the discharge of their official duties as
police officers. Likewise, the
amended information does not indicate that the
said accused arrested and investigated the victim
and then killed the latter while in their custody.
The stringent requirement that the charge set
forth with such particularity as will reasonably
indicate the exact offense which the accused is
alleged to have committed in relation to his office
was not established.
Consequently, for failure to show in the
amended informations that the charge of murder
was intimately connected with the discharge of
official functions of the accused PNP officers, the
offense charged in the subject criminal cases is
plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court and
not the Sandiganbayan.
Then padayon ta sa Sandiganbayan. So dili lang
kay kuan ra ha, dili lang kay Anti-Graft ra. Then
mangutana mo, Anti-Graft, Sandiganbayan pero
kadto ra mang mga dagko, kadto ra mang mga
dagkong isda. Kadto diay’ng mga suysoy diay?
Kaila ba mo’g suysoy? Ka pobre gud tawn ninyo
wa man mo kaila’g suysoy. Kanang anak gud
anang danggit gud nga gagmay kayo, mao na’y
suysoy! Kana bang mga bolinao.
Kaila mo’g bolinao? Bright kayo ng bolinao. Ay
mo kasuko ingnon mo utok bolinao, ha? Kay
kanang bolinao bright kaayo na. Mao na sila
magtapok aron inig tan-aw sa iho, tan-awn sa iho
murag dakong isda. Kay pangan-on ra man na
sila kung magtinagsa na sila kay gamay man. So,
mao ng magtapok sila aron inig kita sa iho, “Oi
kadakong isda ani!” Dagan ang iho. So, bright
kaayo ng bolinao. Kung imu pug ng kaunon, ma-
bright pud ka ana. Daghan man na’g protein.
Asa man ng crimes nga gagmay nga Anti-Graft?
Pananglitan, ang kanang mga clerk ra maka-
commit ug violations sa Anti-Graft, mga PO1. Asa
man na sila? Ari sa RTC.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Puede ba sad ang first-level court maka-handle
ug mga kaso involving public officers committing
crimes in relation to their functions? YES, puede.
First-level courts have jurisdiction over those
crimes nga duna siya’y jurisdiction.
For example, arbitrary detention. Duna ma’y
arbitrary detention nga ang penalty niya di
mulabaw ug 6 years. Then first-level courts have
jurisdiction.
Ang Sandiganbayan, duna ba sa’y mga civil
cases nga ma-file didto? Naa. Kadtong mga
cases, kadtong mga nag-involve ug mga ill-
gotten wealth of late President Marcos pursuant
to the order of late President Corazon Aquino.
Executive Orders No. 1, 2, 14 and 14-A.
Then Sandiganbayan has exclusive appellate
jurisdiction over decisions of the RTC in cases
under PD 1606, as amended by RA 7975 and RA
8249. Naghisgut man ta kaniha nga kadtong mga
Anti-Graft cases wherein the accused does not
occupy Salary Grade 27 and is not also
specifically mentioned to be under the exclusive
jurisdiction of the Sandiganbayan, adto to sila i-
file sa RTC. Unya kung i-kumbekto sa RTC, asa
man sila mu-apilar? Adto mu-apilar sa
Sandiganbayan. Dili sa Court of Appeals.
Also those cases decided by first-level courts
involving public officers appealed to the RTC,
unya pagkahuman ana gi-affirm, adto na i-apilar
pud sa Sandiganbayan. So, mao na oh,
“Decisions rendered by the Regional Trial Courts
whether the cases are decided by them in the
exercise of their appellate or original
jurisdiction.”
REGIONAL TRIAL COURT (RTC)
Now going back to the Regional Trial Courts,
atong gihisgutan kaniha nga ang mga cases
wherein the penalty imposable is 6 years and 1
day or over. Timan-i ha, kung insakto 6 years,
MTC na. Kinahanglan pakapinan nimu’g usa ka
adlaw. Wa gani kapin, MTC.
Now, those criminal cases which are not within
the exclusive jurisdiction of any court, tribunal or
body, ang RTC mao’y duna’y jurisdiction. RTC is a
COURT OF GENERAL JURISDICTION. So, kadtong
mga kaso nga dili mu-fall sa first-level courts,
adto na siya sa RTC.
Unya ang mga RTC, duna’y mga specialized
courts. Duna’y gitawag ug Family Courts. Family
Courts have jurisdiction over criminal cases
wherein one of the accused is a MINOR. One or all
of the accused is a minor or one of the victims or
the victim is a minor.
Pananglitan, ikaw ron nakasumbag ka, pila’y
edad nimu ron, 30? Nakasumbag ka, imung
gisumbag minor, asa man ng kasong slight
physical injuries, asa man na i-file? Adto sa RTC.
Nganung RTC man? Because the victim is a
minor. Or pila’y edad nimu ron, 30? Nanghikap-
hikap ka ron ug minor. Dese siete (17). Unsa
ma’y crime na-commit, hikap-hikap, unsa ma’y
crime ana? Depende sa gihikap. Gihikap nimu
ang kadtong dili hikapunon, that would be acts of
lasciviousness kay private parts. Pero kadtong
gihikap nimu kadtong puede ra mahikap, pero wa
ka mananghid, unjust vexation. Asa man i-file?
Family Court.
Another specialized court, kaning mga Drugs
Court. So, all cases involving drugs, RTC. Pero
duna’y mga korte nga designated as Drugs
Court. Moduol ka anang mga judges nga nag-
handle ug Drugs Court, mura-mura sa’g baho’g
shabu.
Then Commercial Court. Hinumdumi sa
Commercial Law ninyo. Kanang violations for
example sa Intellectual Property Law. Adto na sa
Commercial Court. Naa’y korte diha gi-designate.
Naa po’y Environment[al] Court. Mga designated,
RTC gihapon.
Pero ang gamit jud kayo, sagad natong
madunggan, sa man? Ang Drugs Court ug Family
Court.
Now, in places wherein, kanang single sala, ah
kana jack-of-all-trades na sila. Family Court na
sila, wa ma’y family court. For example, adto ka
didto sa Oslob, usa ra man didto. So, siya mao’y
Family Court, siya mao’y Commercial Court, siya
mao’y Drugs Court. So, kung usa ra. Pero diri
daghan man atong mga branches, so duna’y mga
branches nga designate as Drugs Court. Duna’y
gi-designate sa Family Court, Environmental
Court. Pero diri sa Cebu murag duha ra ka korte
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gi-designate diri. Bisa’g asa, anywhere kung
bisa’g asa na sila ma-commit. Mandaue, I think
kadtong kang Judge Yap, Justice na ron. Ug kani
ngaring sa Branch 23.
MUNICIPAL TRIAL COURTS (MTC)
What about MTC? Unsa ma’y jurisdiction sa MTC?
So, mao to, 6 years and below including
Summary Procedure.
By the way, duna’y duha ka klase sa criminal
procedure. Kanang gitawag inquisitorial system
and there is the so-called accusatorial system.
Kanang inquisitorial, kuyaw kayo ang judge diha.
Ang judge diha mura’g detective. In an
inquisitorial system, the detection and
prosecution of crimes are left to the initiative of
officials and agents of the law. The procedure is
characterized by secrecy and the judge is not
limited to the evidence brought before him but
could proceed with his own inquiry which is not
confrontive. Ang pag-file sa mga kaso, ang
pagsilot sa mga criminals, ang magbuot ana ang
mga officials ra. Unya ang judge ana, murag
detective. Puede siya mag-imbestigar. Puede siya
mao’y moadto didto sa lugar unya iyahang
pangitaa’g ebidensya. Siya’y mangita ug
ebidensya.
Pero diri sa accusatorial, ang judge maghuwat ra
kung duna’y kiha. The accusation is exercised,
unya ang mo reklamo, every citizen has the right
to file a case. The procedure is confrontive and
trial is publicly-held and ends with the judge
rendering the verdict. So, paabot ra siya’s nga
duna’y mukiha unya katong mukiha mao’y mo-
present ug ebidensya. Lahi sa inquisitorial ka
yang judge mao’y mangita ug ebidensya.
Ang ato diri unsa man? We can consider nga
accusatorial or mixed. A combination of
inquisitorial and accusatorial.
RULE 110- PROSECUTION OF OFFENSES
Where are you going to file a criminal case? Asa
man ka mo file ug criminal nga kaso? Sugod jud.
IT DEPENDS. You have to determine whether that
particular case requires preliminary investigation
or not. So institution of criminal actions, meaning
to say this the first time that you are going to file.
Where are you going to file a criminal case for
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the first time? Now, it depends. And you have to
determine whether a case requires preliminary
investigation or not. To determine whether it
requires preliminary investigation or not, look at
this number. Pustahi ni ninyo kay mogawas ni
karon taud-taod, 4-2-1. What do you mean by 4-
2-1? 4 years, 2 months and 1 day. When the
penalty imposable is 4 years, 2 months and 1 day
AND over, preliminary investigation is required.
And so, if preliminary investigation is required,
you have to file the case first in an office
authorized by law to conduct preliminary
investigation. Ok, what are these offices required
or authorized by law to conduct preliminary
investigation? Dili tanang opisina sa gobyerno
puede mo-conduct ug preliminary investigation.
Ok, look at Sec. 2, Rule 112 of the Rules of Court.
These are the:
1. Prosecutor’s Office/ Provincial or City
Prosecutors and their assistants
2. National and Regional State Prosecutors
3. Other officers as may be authorized by
law
So, you file a case in their office for the conduct
of preliminary investigation.
Another office authorized to conduct preliminary
investigation, Office of the Ombudsman.
Particularly those cases involving public officers.
And other offices authorized by law to conduct
preliminary investigation. Example, kanang
COMELEC Office. They can conduct preliminary
investigation in cases involving violations of the
Election Code. So for example, kanang mga
illegal campaign. So, puede sila maka-conduct ug
preliminary investigation.
For cases which do not require preliminary
investigation, you can file them DIRECTLY in court
through a complaint. But the court referred to is
MTC and MCTC only. Puede nimu, maka-file ka ug
kaso didto sa MTC lang ug MCTC.
What about MTCC ug MeTC? Bisan pa ug 4 years,
2 months ran na siya wherein preliminary
investigation is not required, you are going to file
them before the Prosecutor’s Office.
Unsa tong mga opisinaha nga puede maka-
conduct ug preliminary investigation?
Prosecutor’s Office, Ombudsman, unya other
offices authorized by law.
Remember that the filing of the case for
preliminary investigation INTERRUPTS the
running of the prescriptive period whether the
crime is punishable by the Revised Penal Code or
special law.
Importante man gud ni kay there was one case
nga gi-file didto’s fiscal unya gi-istambay didto
ug lima (5) ka tuig. Nganung naabotan man ug
lima ka tuig? Kay file ug kaso’s fiscal, mi-apilar to
sila, basta kay dugay kayo, niabot ug lima ka
tuig. Unya na-file siya didto sa korte, at last, after
five years. Ang prescriptive period sa maong
kaso is one (1) year. So mi-ingon dayon siya, mi-
ingon dayon ang accused nga, file dayon siya ug
motion to quash on the ground of prescription,
arguing that when the case was filed in court, the
case has already prescribed. Now, according to
the Supreme Court, the answer is NO. Why?
Because according to the Supreme Court when
the case was filed before the prosecutor’s office
for preliminary investigation, the prescriptive
period stop to run. That’s the ruling, kana
applicable na na. Sauna, mo-stop lang kung
felony punishable sa Revised Penal Code. But
under the recent rulings of the Supreme Court
that rule that “prescriptive period stops upon
filing of the case”, that rule is already applicable
even to cases punishable by special law. That’s
the ruling of the Supreme Court in the case of
Panaguiton, Jr. vs. DOJ, et al, November 25,
2008.
Panaguiton, Jr. vs. DOJ, et al
G. R. No. 167571
November 25, 2008
Facts:
Rodrigo Cawili borrowed various sums of
money from petitioner. Cawili and his business
associate, Ramon Tongson, jointly issued in favor
of petitioner three (3) checks in payment of the
said loans. Significantly, all three (3) checks bore
the signatures of both Cawili and Tongson. Upon
presentment for payment, the checks were
dishonored, either for insufficiency of funds or by
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the closure of the account. Petitioner made
formal demands to pay the amounts of the
checks upon Cawili and Tongson, but to no avail.
Petitioner filed a complaint against Cawili
and Tongson for violating Batas Pambansa Bilang
22 (B.P. Blg. 22) before the Quezon City
Prosecutor's Office. During the preliminary
investigation, only Tongson appeared and filed
his counter-affidavit. However, Tongson claimed
that he had been unjustly included as party-
respondent in the case since petitioner had lent
money to Cawili in the latter's personal capacity.
Tongson averred that he was not Cawili's
business associate; in fact, he himself had filed
several criminal cases against Cawili for violation
of B.P. Blg. 22. Tongson denied that he had issued
the bounced checks and pointed out that his
signatures on the said checks had been falsified.
In a resolution, City Prosecutor III Eliodoro
Lara found probable cause only against Cawili
and dismissed the charges against Tongson.
Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case
against Cawili was filed before the proper court.
In a letter-resolution, after finding that it was
possible for Tongson to co-sign the bounced
checks and that he had deliberately altered his
signature in the pleadings submitted during the
preliminary investigation, Chief State Prosecutor
Jovencito Zuño directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the
case against Tongson and to refer the questioned
signatures to the National Bureau of Investigation
(NBI).
Tongson moved for the reconsideration of
the resolution, but his motion was denied for lack
of merit.
Assistant City Prosecutor Ma. Lelibet S.
Sampaga (ACP Sampaga) dismissed the
complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutor's
resolution. In her resolution, ACP Sampaga held
that the case had already prescribed pursuant to
Act No. 3326, as amended, which provides that
violations penalized by B.P. Blg. 22 shall prescribe
after four (4) years.
Petitioner appealed to the DOJ. But the
DOJ, through Undersecretary Manuel A.J.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Teehankee, dismissed the same, stating that the
offense had already prescribed pursuant to Act
No. 3326. Petitioner filed a motion for
reconsideration of the DOJ resolution.
The DOJ, this time through then
Undersecretary Ma. Merceditas N. Gutierrez,
ruled in his favor and declared that the offense
had not prescribed and that the filing of the
complaint with the prosecutor's office interrupted
the running of the prescriptive period citing Ingco
v. Sandiganbayan.
However, in a resolution, the DOJ,
presumably acting on a motion for
reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and
ordered "the withdrawal of the three (3)
informations for violation of B.P. Blg. 22" against
Tongson.
Petitioner thus filed a petition for
certiorari before the Court of Appeals assailing
the resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of
petitioner's failure to attach a proper verification
and certification of non-forum shopping. In the
instant petition, petitioner claims that the Court
of Appeals committed grave error in dismissing
his petition on technical grounds and in ruling
that the petition before it was patently without
merit and the questions are too unsubstantial to
require consideration.
The DOJ, in its comment, states that the
Court of Appeals did not err in dismissing the
petition for non-compliance with the Rules of
Court. It also reiterates that the filing of a
complaint with the Office of the City Prosecutor of
Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It
argues that under B.P. Blg. 22, a special law
which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in
accordance with Act No. 3326.
Issue:
Whether there is prescriptive period upon
violating B.P. Blg. 22 per Act No. 3326 and not
Art. 90 of the RPC, on the institution of judicial
proceedings for investigation and punishment?
Held:
It must be pointed out that when Act No.
3326 was passed on 4 December 1926,
preliminary investigation of criminal offenses was
conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial
proceedings for its investigation and
punishment," and the prevailing rule at the time
was that once a complaint is filed with the justice
of the peace for preliminary investigation, the
prescription of the offense is halted.
Although, Tongson went through the
proper channels, within the prescribed periods.
However, from the time petitioner filed his
complaint-affidavit with the Office of the City
Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an aggregate
period of nine (9) years had elapsed. Clearly, the
delay was beyond petitioner's control. After all,
he had already initiated the active prosecution of
the case as early as 24 August 1995, only to
suffer setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No.
3326.
Aggrieved parties, especially those who
do not sleep on their rights and actively pursue
their causes, should not be allowed to suffer
unnecessarily further simply because of
circumstances beyond their control, like the
accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
The court rules and so hold that the
offense has not yet prescribed. Petitioner’s filing
of his complaint-affidavit before the Office of the
City Prosecutor on 24 August 1995 signified the
commencement of the proceedings for the
prosecution of the accused and thus effectively
interrupted the prescriptive period for the
offenses they had been charged under B.P. Blg.
22. Moreover, since there is a definite finding of
probable cause, with the debunking of the claim
of prescription there is no longer any impediment
to the filing of the information against petitioner.
Now, do you understand regarding the filing of
criminal cases? Sa ato pa, general rule, dili puede
nga kanang kaso diretsuhon nimu ug file didto’s
korte. It must pass through the prosecutor’s
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office for the conduct of preliminary
investigation.
So for example, somebody is killed, unya ang
nakapatay nisibat. Then a case has to be filed
before the prosecutor’s office. The murder case
has to be filed before the prosecutor’s office.
Then after the conduct of the preliminary
investigation if the prosecutor’s office finds
sufficient evidence to file the case in court, then
that would be the time the case has to be filed in
court.
Now, question. Suppose the prosecutor’s office
will dismiss the case. For example mikiha ka’g
rape didto sa prosecutor’s office. Suppose the
prosecutor’s office dismissed your case. Can you
file a petition for mandamus in court to order, to
compel the prosecutor’s office to file the case?
Now, general rule, NO. Mandamus will not lie.
Discretion man gud na. Kanang mandamus, as
what we have learned, that is only applicable in,
what? Purely ministerial duties. Filing a case in
court is not a ministerial duty of the prosecutor’s
office. It requires discretion. HOWEVER, by way of
exception, there are cases wherein the Supreme
Court rendered decision that mandamus is
available. Duna’y pipila ka mga kaso nga gi-
desisyunan sa Supreme Court nga mi-ingon ang
Supreme Court, “ah proper ang mandamus.” One
of this is the case of Guiao vs. Figueroa, 94
Phil. 1018. Exception na ha, rather than the rule.
Guiao vs. Figueroa
94 Phil. 1018
G.R. No. L-6481
MAY 17, 1954
Facts:
Testimonies were made by Dizon and
Manalo in a criminal case, the lower court
ordered a re-invetigation of the case and
suspended its trial, with a view to including as
accused all persons who might be guilty of the
crime. After the reinvestigation an amended
information was filed, and two new accused were
included, namely, Jesus Guiao and Eulogio
Serrano. But Porfirio Dizon and Emiliano Manalo
were not included. In view of the failure of the
provincial fiscal to include these two persons, a
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
motion for contempt was filed against the fiscal,
but this motion was dismissed on the ground that
if the fiscal committed an error of judgment, or
even an abuse of discretion, the recourse against
him was not an action for contempt but one of
mandamus. Due to this order of the court, the
action for mandamus was filed by Jesus Guiao to
compel the fiscal to include Porfirio Dizon and
Emiliano Manalo as accused in his information.
Issue:
1. WON, a fiscal may be compelled by
mandamus to include in an
information persons who appear to
be responsible for the crime charged
therein, but whom the fiscal believes
to be indispensable witnesses for the
State? NO
2. WON, a co-accused has a right to
institute an action for mandamusto
the performance of the alleged duty
of the fiscal? YES
Ruling:
1. No. Act 2709 has laid down four
principles, namely,
(1) that all persons who appear to be responsible
for an offense be included in the information
charging that offense;
(2) that even if it is necessary to utilize any of the
above persons as State witness, he shall
nevertheless be included as accused;
(3) that fiscals have no discretion in excluding
from prosecution persons who appear responsible
for a crime, but that if it becomes necessary to
do so, the procedure provided in the law must be
followed; and
(4) that the exclusion of accused from
prosecution, in order that they may be used as
State witnesses, is lodged in the sound discretion
of the competent court, not in that of the
prosecuting officer.
In the case at bar, there is no question that
Porfirio Dizon and Emiliano Manalo participated
either as principals or accomplices in the
kidnapping and murder of Felix Lampa, and that
the only reason why the fiscal excluded them
from the amended information is because he
thought it more convenient, or perhaps more
expedient, to do so. When the fiscal chose to
ignore his legal duty to include the said Porfirio
Dizon and Emiliano Manalo as accused in the
criminal case, and to follow the procedure
outlined in the rules by which said persons may
be discharged in order that they may be utilized
as witnesses for the prosecution, it became
proper and necessary for the competent court to
require him to comply therewith.
(Comment: in short it is not within the fiscal’s
power to determine whether an accused should
be a state witness or not)
Requisites to become a state witness:
(a) There is absolute necessity for the testimony
of the accused whose discharge is requested;
(b) There is no other direct evidence available for
the proper prosecution of the crime committed,
except the testimony of the accused;
(c) The testimony of said accused can be
substantially corroborated by its material points;
(d) Said accused does not appear to be the most
guilty;
(e) Said accused has not at any time been
convicted of the crime of perjury or false
testimony or of any other crime involving moral
turpitude.
2. YES. Every person accused of a crime has a
positive interest in the inclusion of all his co-
conspirators; a right to demand that all of them
be accorded equal treatment and be made to
suffer the penalties imposed by law. Without
deciding the question as to whether or not any
Page | 264

private citizen may demand compliance by the
fiscal with the provisions of section 1 of Rule 106,
requiring him to file the information "against all
persons who appear to be responsible for an
offense," we hold that the other accused have an
interest in the inclusion of their two other
companions in the commission of the crime,
because they are jointly and severally liable with
them for indemnities that may be imposed upon
them for the offense they may have committed
together.
Unsa ma’y lain pang remedy? Unsa man diay
remedy nimu kung pananglitan kung [wala mo
file] gi-dismiss ang imung kaso?
You can file appeal. Puede ka maka-appeal
pirmero sa RSP, kanang gitawag ug Regional
State Prosecutor or puede ka maka-diretso didto
sa DOJ Secretary if the case is cognizable by RTC.
You can go directly to the DOJ Secretary.
Unya unsa man to’y remedy nimu kung
pananglitan ang DOJ Secretary adverse ang iyang
decision? Asa man ka mo-punta? You file petition
for certiorari, dili petition for review ha. PETITION
FOR CERTIORARI WITH THE CA.
RULE 111
PROSECUTION OF CIVIL ACTIONS
Sec. 1. Institution of criminal actions.
– Criminal actions shall be instituted
as follows:
(a) For offenses where a preliminary investigation
is required pursuant to section 1 of Rule 112, by
filing the complaint with the proper officer for the
purpose of conducting the requisite preliminary
investigation.
(b) For all other offenses, by filing the complaint
or information directly with the Municipal Trial
Courts and Municipal Circuit Trial Courts, or the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
complaint with the office of the prosecutor. In
Manila and other chartered cities, the complaints
shall be filed with the office of the prosecutor
unless otherwise provided in their charters.
The institution of the criminal action shall
interrupt the running of the period of
prescription of the offense charged unless
otherwise provided in special laws. (1a)
Kung gi dismiss sa DOJ, unsa may
imo remedy? Petition for Certiorari
ha sa Court of Appeals.
Dili mana nimo mapugos ang
opisina sa DOJ, pede ba na nimo
ma enjoin?
Acccused ka. A case of murder
was filed against you. Nya gi filan
jud kag kaso. Unsay may remedy
nimo. Kani lahi ni sa mandamus
ha. Ganiha mandamos man to.
Ikaw man ang respondent. Dili na
sad nimo ipa-file. Pede ba ka maka
file ug injunction aron ma pugngan
gyud?
GR: No. Injunction and prohibition
will not lie against the prosecution
of criminal actions. This is
because the public interests
require that the criminalcases
must be investigated and
proseuted immedaitely for the
protection of society.
Exceptions: There are cases were
the SC granted the prayer of
injunction to prohibit the
prosecutors office from filing the
case.
Ex. The accused raised Double
Jeopardy (DJ). Kay terminated na
ang kaso nya gi file ug usab. Gi file
gihapon sa prosecutor's office nya
ni file ug injunction. Allowed?
Ans: SC said klaro sad oy duna na
gyuy DJ hala ayaw na i-file.
SEC. 2. The complaint or information – The
complaint or information shall be in writing,
in the name of the People of the Philippines
and against all persons who appear to be
responsible for the offense involved.
SEC. 3. Complaint defined. – A complaint is
a sworn written statement charging a
person with an offense, subscribed by the
offended party, any peace officer, or other
public officer charged with the enforcement
of the law violated.
SEC. 4. Information defined. – An
information is an accusation in writing
charging a person with an offense,
subscribed by the prosecutor and filed with
the court.
Complaint Inf
Filed by the (a) offended party; (b) any peace Pre
officer; (c) or any public officer charged with
the enforcement of the law.
Filed in court is either for preliminary Fil
investigation or for trial
( When you directly file a criminal case before
mtc or mctc , dili info imo i-file didto kung dili
complaint. Pede ra ikaw magbuhat dili fiscal
nya ikaw mo pirma ang offended party.
If you are the one who filed (offended party, it No
should be under oath). (Any police or any it's
officer mandated by law like katong officer
nga mobantay ug pamutol ug lubi, naa man
law nga nag mandate nga mo file ug kaso,
pede ra pud)
Gamit pud ang complaint sa kanang private
crimes so makita pud ni sa RTC. Katong
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

ACSAA na mga crimes. Sa Criminal cases--- it should be naka enter na ug appearance ang
the Public Prosecutor. fiscal dili na sila kapanghilabot.
However, in places wherein the Example sa MTC or MCTC ni Ha!!
may be filed in court or in the office of the public officer has a heavy case During arraignment, naka anha
prosecutor load, PRIVATE PROSECUTOR MAY ang fiscal. Siya ang ni appearance
can be filed in court, for trial or for mere BE ALLOWED IN WRITING and he unya sa sunod setting wala
preliminary investigation, or it can even be can prosecute the case even mitunga ang fiscal.. Aw dili Jud sila
filed not in court but in the prosecutor’s office without the presence of a Public kapanghilabot ana!!
for preliminary investigation prosecutor. Kung ang imong bana nangabit,
Kanang kaso labi na jud kung dili ra kay ang kabit ra ipa priso.
arraignment, wala gani ang fiscal Iapil ang kabit. Kung kasohan ra
SEC. 5. Who must prosecute criminal
void ang proceedings nimo batok ra sa kabit, aw ma
actions. – All criminal actions
ana.However by way of exception, dismiss na. Sila jud duha.
commenced by a complaint or
pede wala ang public prosecutor
information shall be prosecuted
provided a private prosecutor is PP v Oplado, 12 SCRA 17
under the direction and control of
authorized in WRITING HA. IN In one case, the wife was charged
the prosecutor. However, in
WRITING! THAT AUTHORITY IS UP with adultery together with here
Municipal Trial Courts or Municipal
TO THE END OF THE TRIAL. paramour. Unfortunately the
Circuit Trial Courts when the
Bantay ani ha basin kuwang na paramour was able to evade or at
prosecutor assigned thereto or to
inyong codals. ---dunay last large while the wife has been
the case is not available, the
paragraph sa section 5: arrested. The case has been
offended party, any peace officer, or
“HOWEVER in mtc or mctc when pending waiting for the arrest of
public officer charged with the
the prosecutor assigned thereto or the paramour. Could there be a
enforcement of the law violated may
to the case is not available, the separate trial for the wife nya ang
prosecute the case. This authority
offended party, any peace officer kabit?
shall cease upon actual intervention
or any of the public officer Answer: SC said , YES! The crime
of the prosecutor or upon elevation
charged with the law violated may for adultery the laws says that
of the case to the Regional Trial
prosecute the case. This authority both should be charged together
Court.
shall cease upon the intervention in the complaint but it does not
The crimes of adultery and
of the prosecutor or upon the required that they should be tried
concubinage shall not be prosecuted
elevation of the case to the RTC.” together as well.
except upon a complaint filed by the
In other words, didto sa MTC ug Kanang mga private crimes,
offended spouse. The offended party
MCTC the offended party himself necessary jud na mo execute ug
cannot institute criminal prosecution
can prosecute the case. Pede sya affidavit ang complainant and his
without including the guilty parties,
mo argue didto. Or the Police affidavit must be attached in the
if both are alive, nor, in any case, if
officer can also prosecute the complaint. Nya ang i-file ani sa
the offended party has consented to
case. Yaw kahibulong kung sa korte dili INFORMATION HA BUT a
the offense or pardoned the
korte, imbes na fiscal ang COMPLAINT!!!
offenders.
motindog , pulis na nua. PNP. Pulis Example:
The offenses of seduction, abduction
Nahimog Piscal!! In case of adultery , the husband
and acts of lasciviousness shall not
Remember sa MTC ug sa MCTC ra should execute an affidavit coz if
be prosecuted upon a complaint
ni nga RULE. Provided that the not the court cannot acquire
filed by the offended party of her
case is commenced by a jurisdiction over him and the
parents, grandparents or guardian,
complaint. Kay kung information affidavit is a condition sine qua
nor, in any case, if the offender has
gud dili jud sila kapanghilabot ana. non for the court to acquire
been expressly pardoned by any of
Another even if the case is jurisdiction!!
them. If the offended party dies or
commenced by a complaint, unya A husband was able to execute an
becomes incapacitated.
affidavit, pero later on namatay
Kinsay mo abugar?
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
siya. But the prosecutor filed the
case attaching the sworn
statement of the husband. The
accused moved for the dismissal of
the case because what was filed in
court was an information but a
complaint because the private
offended party is already dead.
PEOPLE vs. ILARDE
125 SCRA 11
FACTS: This is a case for adultery
originated in the City of Iloilo. A
man caught his wife in an act of
adultery. The next thing he did was
to execute an affidavit-complaint,
which he filed in the office of the
City Prosecutor of Iloilo City. In his
affidavit he said, “I’m formally
charging my wife and X and would
request this affidavit be considered
as a formal complaint against
them.” While the case was
pending before the fiscal for
investigation, he died. So the Fiscal
asked how he can file an
information in court when there is
no complaint because the rule is,
the complaint filed with the fiscal’s
office is not the complaint
contemplated by law; there must
be a complaint filed signed by the
offended party. But in this case,
the complainant was already dead.
Although there was an affidavit-
complaint.
The fiscal knew that and so he
prepared an information for
adultery charging the wife and her
paramour. In the information he
stated: “The undersigned City
Fiscal upon sworn statement
originally filed by the offended
party, xerox copies of which are
hereto attached as annexes A and
B …xxx” So what he did was to
incorporate the affidavit of the
deceased offended husband in the
information.
Now, the wife and the paramour
moved to quash the information
alleging lack of jurisdiction upon
the offense charged because
under Article 344 of the RPC, the
requirement for the complaint of
adultery was not complied with
citing the case of People vs.
Santos, 101 Phil. 798, where it was
held that the complaint filed in the
fiscal’s office for a private crime is
not the complaint contemplated by
law. On that basis, RTC Judge Ilarde
dismissed the case.
The prosecution went to the SC on
certiorari.
HELD: The respondent trial court is
wrong. The order of dismissal is
hereby set aside and is directed to
proceed with the trial of the case.
“It must be borne in mind,
however, that this legal
requirement was imposed out of
consideration for the aggrieved
party who might prefer to suffer
the outrage in silence rather than
go through the scandal of a public
trial. Thus, the law leaves it to the
option of the aggrieved spouse to
seek judicial redress for the affront
committed by the erring spouse.
And this, to Our mind, should be
the overriding consideration in
determining the issue of whether
or not the condition precedent
prescribed by said Article 344 has
been complied with. For needless
to state, this Court should be
guided by the spirit, rather than
the letter, of the law.”
“In the case at bar, the desire of
the offended party to bring his wife
and her alleged paramour to
justice is only too evident. Such
determination of purpose on his
part is amply demonstrated in the
dispatch [speed] by which he filed
his complaint with the fiscal’s
office [because he filed the
complaint the day after the crime
happened]. The strong and
equivocal statement contained in
the affidavit filed with the Fiscal's
Office that “I am formally charging
my wife of the crime of adultery
and would request that this
affidavit be considered as a formal
complaint against them” – is a
clear show of such intent.”
“The ruling in People vs. Santos is
not applicable to the case at bar.
In that case, the sworn statement
was not considered the complaint
contemplated by Article 344 of the
Revised Penal Code because it was
a mere narration of how the crime
was committed. Whereas, in the
case at bar, in the affidavit-
complaint submitted by the
offended husband, he not only
narrated the facts and
circumstances constituting the
crime of adultery, but he also
explicitly and categorically
charged private respondents with
the said offense – “I’m charging
my wife and her paramour with
adultery.”
“Moreover, in Santos, the SC noted
that the information filed by the
fiscal commenced with the
statement ‘the undersigned fiscal
accuses so and so,’ the offended
party not having been mentioned
at all as one of the accusers. But in
the present case, it is as if the
husband filed the case.”
“The affidavit of the husband here
contains all the elements of a valid
complaint under Section 5, Rule
I10 of the Rules of Court. What is
more, said complaint-affidavit was
attached to the information as an
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
integral part thereof, and duly filed
with the court. Therefore, the
affidavit complaint became the
basis of the complaint required by
Section 5.”
Last paragraph, Section 5, Rule
110: No criminal action for
defamation which consists in the
imputation of any of the offenses
mentioned above shall be brought
except at the instance of and upon
complaint filed by the offended
party.
Kanang Libel is a private crime.
But that crime can be commenced
by an information filed in court.
However if the imputation or the
action of defamation consists for
an offenses of any private crimes,
ACSSA, the action shall be filed in
court to a complaint.
Kanang pag libel o pag pakauwaw,
ug ang gipa uwaw gani dunay gi
impute nga private crimes, ang
kaso I file sa korte kay complaint.
Example:
borikat ka!! Unsa man nga crime
ang gi-imput nimo? Prostitution. Is
it a private crime?
Answer: No. A public crime and
that can be filed in court through
an information.
Kung giingnan ka.... KABIT KA SA
AKONG BANA!! Concubinage is a
private crime or not?
Answer: Private crime and the
case could be filed in court
through a complaint by the
offended party. Importante ni kay
ma dismiss ang kaso nimo!!
If the crime imputed in libel or oral
info is a private crime, ACSSA, file
the case through a complaint
however, if the crime imputed is a
public crime, kawatan ka!! then,
file the case through an
information.
Kanang public crime crime gani
any person maka file ana.
Example:
Kita kas silingan nimo nga gipatay.
Murder! Pede ikaw mo file ngadto
sa police ang kaso labi na jud kung
ikaw ang witness. Bisan pa ang
tag tungod dili mo file ug kaso.
Ang rape, public crime na na siya.
In cases, where there is a private
offended party, the private
offended party can prosecute the
case through a private prosecutor.
Kung dunay private offended party
and he hires a private prosecutors
so duna nay two laywers
prosecuting the case. However the
presence of a private prosecutor is
only proper when there is private
offended party.
Example:
Duna kay silingan nga gusto gyud
nimo ipa priso kay na violate ang
anti drugs act. D ka pede mo hire
ug private prosecutor. Ngano
man? There is no private offended
party.
Kung pananglitan dili mo hire ug
private prosecutor, kinsa may mo
prosecute kung dunay private
offended party nga mo claim ug
damages?
Answer: Aw ang Fiscal mo present
ug evidence! Panang litan
nadunggaban. Nya nabuhi. Nya
gusto siya mo kolekta ug
damages,kay nakagasto kas sa
hospital. Then ang fiscal mao nay
mo present ug evidence.
Nya rememeber the dictrine of
parens patriae. What is it?
Answer: it is an inherent power of
the State to protect the person or
its properties sui juris. The state
has the soveriegn power over
guardianship over the person
under disabilities.( second
paragraph daw sa rule 110. pero
dili man)
sa my legal whiz defination. Para
magamit ba...
parens Patriae. This doctrine has
been defined as the inherent
power and authority of the state to
provide protection to the persons
and property of the persons non-
sui juris. Non-sui juris persons are
those who lack the legal capacity
to act on his own behalf like the
child or the insane persons.
SEC. 6. Sufficiency of complaint or information.–
A complaint or information is sufficient if it
states the name of the accused; the
designation of the offense given by the
statute; the acts or omissions complained
of as constituting the offense; the name of
the offended party; the approximate date
of the commission of the offense; and the
place where the offense was committed.
When an offense is committed by more
than one person, all of them shall be
included in the complaint or information.
However adunay
exception ani. Kanang
mahimong State witness.
Under RA 6981 Witness
protection program. The
prosecutor's office has the
power to exclude those who
participated in the crime
provided that they will be
utilized as state witness.
SEC. 7. Name of the accused. – The complaint
or information must state the name and
surname of the accused or any appellation
or nickname by which he has been or is
known. If his name cannot be ascertained,
he must be described under a fictitious
name with a statement that his true name
is unknown.
If the true name of the accused is
thereafter disclosed by him or appears in
some other manner to the court, such true
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
name shall be inserted in the complaint or
information and record.
Is it necessary that the
correct name of the accused
should be written in the
complaint?
Answer: No. Pede gani John Doe.
Jane Doe. Peter Doe. Petra Doe.
However in the course of the trial
if you happen to know his or her
real name, you should change his
or her name.
SEC. 8. Designation of the offense. – The
complaint or information shall state the
designation of the offense given by the
statute, aver the acts or omissions
constituting the offense, and specify its
qualifying and aggravating circumstances.
If there is no designation of the offense,
reference shall be made to the section or
subsection of the statute punishing it.
Pananglitan imo I file rape dili na
pede na butangan nimo nga the
undersigned person Juan De la
Cruz is filing a case for the crime
of rape. That is insufficient
because it is a conclusion of law.
Unsaon man diay? Imo jud I – state
ang acts. Ngano naka ingon ka
nga dunay rape. Sa ato pa do not
forget the Elements of rape. So i-
state nimo how the acts or
omission constitute a crime. If you
alleged only the conclusion of law,
that wuld be dismiss. Because the
information does not charge any
offense. You should state the
particular acts.
SA estafa, dili lng ka moingon nga
I will file a case for estafa for
defrauding maria aguanta. Dili na
pede.
Kung Murder, dili ka moingon nga
the undersigned prosecutor
accuses jaun de la cruz for the
crime of murder. Imo jud i-ingon
nga by stabbing resulting to the
death of the victim. Say the
particular acts or omission.. do not
forget the elements.
You allege also the aggravating
circumstances. There are four
aggravating circumstances and
you should allege their what kind
of aggravating circumstances.
Why?
Answer: Because if not, the same
will not be considered by the court
even if proven in the course of
trial. However, kanang mga
mitigating circumstances or
justifying circumstances dili na na
nimo ibutang. Ngano man? Kay sa
pikas mana. Depensa mana nila.
Kung butanagn nimo ug Self-
defense diha for example, that
would be dismiss. Duna lay usa ka
mitigating circumstances nga
dapat nimo i-allege sa complaint
or information. That is MINORITY.
You have to allge MINORITY kay
that would affect the jurisdiction of
the court.
Kung Minor ang nakasala ug Slight
Physical Injury, asa mana nimo i-
file?
Answer: RTC because minrity is
mitigating circumstances.
People vs Flores, Jr., December
27, 2002.
The case at bar, however, is not
one of variance between
allegation and proof. The recital of
facts in the criminal complaints
simply does not properly charge
rape, “sexual abuse” not being an
essential element or ingredient
thereof.
Neither can accused-appellant be
convicted of acts of lasciviousness
or of any offense for that matter
under our penal laws. It is settled
that what characterizes the charge
is the actual recital of facts in the
complaint or information. For every
crime is made up of certain acts
and intent which must be set forth
in the complaint or information
with reasonable particularity of
time, place, names (plaintiff and
defendant), and circumstances. In
other words, the complaint must
contain a specific allegation of
every fact and circumstance
necessary to constitute the crime
charged, the accused being
presumed to have no independent
knowledge of the facts that
constitute the offense.
As held by this Court in the above-
case of Cruz, the allegation in the
information that the therein
accused-appellant sexually abused
the therein private complainant by
either raping or committing acts of
lasciviousness on her “is not a
sufficient averment of the acts
constituting the offense as
required under Section 8 [of Rule
110], for these are conclusions of
law, not facts.” Nothing less can
be said of the criminal complaints
in the cases at bar. They are void
for being violative of the accused-
appellant’s constitutional right to
be informed of the nature and
cause of the accusation against
him.
PP
vs Catubig, Aug. 23, 2001
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The accused was charged of
homicide. Kay homicide man lagi
way allegation of aggravating
circumstances. However, the
prosecutor wanted to present
during the trial the aggravating
circumstances of treachery. The
defense counsel objected that it is
not allowed since it was not
alleged in the information. The
prosecution counter argued that
the purpose of presenting
treachery is not to increase the
crime from homicide to murder
but only for the purpose of
collecting Moral damages.
Ang korte man gud dili mana
madali dali ug award ug moral
damages. It can only award Moral
damages kung adunay
aggravating circumstance.
Can the prosecution be allowed to
present aggravating circumstance
for the purpose of collecting moral
damages even if not alleged in the
information?
Answer: The SC said YES!!
Provided that the purpose is only
to collect Moral Damages and not
to increase the penalty.
Unya sa information, kinahanglan
imo i-state ang tanan nga
elements sa crime. Kay kung dili
gani na imo ibutang tanan.. ada
kay ma dismiss na!! unsa man ang
ground?
Answer: THAT THE FACTS OR
ALLEGATIONS IN THE
INFORMATION DOES NOT
CONSTITUTE AN OFFENSE!
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Now, the information must only
state the Ultimate facts not
evidentiary facts. Kay kung
evidentiary facts gani na, ma
dismiss napud na imong
information.
SEC. 9. Cause of the accusation – The acts
or omissions complained of as constituting
the offense and the qualifying and
aggravating circumstances must be stated
in ordinary and concise language and not
necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to know
what offense is being charged as well as its
qualifying and aggravating circumstance
and for the court to pronounce judgment.
Kanang masabot ang dapat
gamiton nga sentence. Yaw
gamit ug dili ordinary na
words sa complaint or info to
enable a person of common
understanding to know what
offense is being charged.
Para man gud na sa accused
to know the nature and cause
of the offense charge.
SEC. 10. Place of commission of the
offense. – The complaint or information is
sufficient if it can be understood from its
allegations that the offense was committed
or some of its essential ingredients
occurred at some place within the
jurisdiction of the court, unless the
particular place where it was committed
constitutes an essential element of the
offense charged or is necessary for its
identification.
Pede ra ba Cebu City ra imo I-
butang sa Complaint or
information?
GR: the place where the offense
was committed is not necessary to
be written in the complaint or info.
Exception: When the place
constitute an element of the
commission of the crime. Duna
diay crime nga ang place element
sa crime?
Answer: Naa. Example : theft at
the National Museum. Kung imo
gibutang sa info, theft ra wala ang
place asa gibuhat ang theft, so dili
mo convited ang acccused ug theft
at the Ntional Museum. Simple
theft ra siya ma convicted. Higher
penalty man gud ang theft at the
National Museum than that of
simple theft.
Another, remember of the crime
committed at the place didicated
to religious worship. You should
allege that the crime was
committed at the place dedicated
to religious worship like church.
Another trespass to dwelling. You
should allege where the crime took
place at dwelling. Otherwise, dili
siya ma convicted ug trespass to
dwelling.
SEC. 11. Date of commission of the offense.
- It is not necessary to state in the
complaint or information the precise date
the offense was committed except when it
is a material ingredient of the offense. The
offense may be alleged to have been
committed on a date as near as possible to
the actual date of its commission.
It is not necessary to state
in the complaint when was the
crime committed. Pede ra not
specific time when the offense was
committed. Pede ra ka moingon,
sometime in January 2013.
Example:
Sometime in January 2013,
then and there, willfully, unlawfully
stabbed so and so resulting to the
death of the latter. The defense
moved to quash the information
arguing that his right to know the
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
nature and offense charge was
violated because it was not
specified in the complaint the
exact time when the crime was
committed. If you are the judge,
will you grant the motion?
Answer: No. It is not necessary to
state in the complaint or
information the precise date the
offense was committed except
when it is a material ingredient of
the offense. Except when the time
or date is a material ingredient of
the offense. Duna diay crime nga
petsa diay dapat I-state?
Answer: Yes. Gun ban. Karong
january 13, mag sugod na ang gun
ban. So, katong masakpan, from
january 13 nga ni violate sa crime,
aw makasala ani. Kani bayang gun
ban dili lng kay pusil I-ban. Apil
pud na ang kutsilyo. Kung
nasakpan ka nagdala ug pusil,
aside from filan ka ug violation sa
PD 1866, filan pud ka sa COMELEC
ug Violation sa Gun ban. Kung imo
na ibutang sa imo info nga
sometime in January 2013... aw
ma dismiss gyud na!! So you must
specify the date! Why? That would
be the material ingredient of the
offense.
Another crime that the
material date should be alleged is
INFANTECIDE!!
The crime will be committed to a
child less that 3 days old.
PP vs Valdesancho,may 30,
2001
Article III, Section 14 of the
1987 Constitution mandates that
no person shall be held liable for a
criminal offense without due
process of law. It further provides
that in all criminal prosecutions,
the accused shall be informed of
the nature and cause of accusation
against him and shall enjoy the
right to be heard by himself and
counsel. Similarly, the Revised
Rules of Criminal Procedure, as
amended, which took effect on
December 1, 2000, provides that
in all criminal prosecutions, it is
the right of the accused to be
informed of the nature and cause
of the accusation against him. To
convict an accused for an offense
not alleged in the complaint or
information violates such right.
In the cases at bar, the
informations in Criminal Case No.
S-1964 and Criminal Case No. S-
1965 charged the accused with
rape committed against Elvie
Basco on August 15, 1994 and
August 16, 1994, respectively. All
evidence of the prosecution tried
to prove that the victim was raped
by the accused on these dates.
The accused interposed the
defense of alibi. He proved that
on these dates he was in the town
of Sta. Maria helping a friend
butcher a pig for the town fiesta.
He also proved that on said dates,
the victim, Elvie, was no longer
living with them in Mabitac,
Laguna. She already transferred
to Minayutan, Famy, Laguna where
she was in Grade 2. Despite the
parties’ evidence, the trial court
convicted the accused for
allegedly raping Elvie on August
15 and 16, 1993. Without doubt,
the accused was not given any
chance to prove where he was on
August 15 and 16, 1993. What he
did was to prove where he was on
August 15 and 16, 1994 for the
informations charged him with
rapes on those specific dates. He
had no opportunity to defend
himself on the rapes allegedly
committed on the earlier dates.
This is plain denial of due process.
SEC. 12. Name of the offended party. – The
complaint or information must state the
name and surname of the person against
whom or against whose property the
offense was committed, or any appellation
or nickname by which such person has been
or is known. If there is no better way of
identifying him, he must be described
under a fictitious name.
(a) In offenses against property, if the name
of the offended party is unknown, the
property must be described with such
particularity as to properly identify the
offense charged.
(b) If the true name of the person against
whom or against whose property the
offense was committed is thereafter
disclosed or ascertained, the court must
cause such true name to be inserted in the
complaint or information and the record.
0 If the offended party is a juridical
person, it is sufficient to state its name, or
any name or designation by which it is
known or by which it may be identified,
without need of averring that it is a
juridical person or that it is organized in
accordance with law.
Not necessary to state the name
of the victim. Kung kuyaw kaayo
nga kaso na dili siya kinahanlan
mailhan, pede siya ma describe
under a fictitious name. Example
ani mga minors.. ang name sa
minor mabasa nimo kay AA, BB
kay naa may law wherein the
name of the minor should not be
disclosed.
If the party is a Juridical person ,
sa civil procedure nato, it is
necessary to alleged in the civil
complaint that a juridical
complaint is a Juridical person duly
organized in accordance with law.
That is for allegation of the
capacity to sue. If you do not
allege that then plaintiff ka, da ma
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dismiss gyud na imong civil
complaint. Pero sa Criminal case it
is not necessary.
EC. 13. Duplicity of the offense. – A
complaint or information must charge only
one offense, except when the law
prescribes a single punishment for various
offenses.
GR: One information. One criminal
case.
Except : In those situations where
the law specify one penalty for two
or more crimes. Naa diay ni?
Answer: Yes! Complex crime diay.
Ug Special Complex crime diay. It
is allowable that the information
should alleged two or more crimes
in these situations. But other than
those info., One info, one criminal
case.
What will happen if the information
will alleged two or more crimes?
Answer: That could be a subject for
a motion to quash that the
information charges more than one
offense. However the objection of
the accuse on that ground must be
raised BEFORE ARRAIGNMENT.
BECAUSE FAILURE TO OBJECT
BEFORE ARRAIGNMENT, THAT
WOULD BE CONSIDERED A WAIVER
ON HIS PART!
WHAT WILL HAPPEN IF THE
ACCUSED FAILS TO OBJECT
BEFORE ARRAIGNMENT OF THE
INFORMATION ALLEGEING TWO OR
MORE CRIMES?
ANSWER: HE COULD BE
CONVICTED OF THE TWO OR MORE
CRIMES AS ALLEGED IN THE
INFORMATION IF PROVEN DURING
THE TRIAL.
Naay kaso BP 22. nya gi alleged sa
information ug ten ka crimes. Kay
sa BP 22, usa ka check nga gi-
issue constitute one crime . Nan,
ten man kabuok ya gi issue, so gi
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
alleged sa information nga the
accused committed ten crimes of
BP 22. nya wa man kabantay ang
accused, so wala siya ka move to
quash the information. Ada na-
convicted siya ug ten times of the
crime of BP 22.
Pero mag matngon pud mo ani.
Kay sa information gi-akusahan
ang accused ug 20 ka violation sa
BP 22. Abtik ang abugado mi move
to quash. Kay lagi usa ra man ka
information, aw PHP 2,000 ra pud
ang bail. Kay bali usa ra man ka
information, so murag usa ra ka
kaso kunuhay. So gamay ra ang
bail. Nya gi grant ang motion to
qaush. Asus kay gi filan man nua
siya ug 20 ka information, nya ang
bail kay bali 2,000 pesos man kada
usa ka info, so tanan 40, 000 pesos
ang bail. Nya wa man siyay
kwarta, ada kay na preso dayon
ang cliente.!! Pag matngon mo ani
hap!!
January 7, 2013
Last night we learned that cases requiring
preliminary examination must have to be filed
before the officers who are authorized by law to
conduct preliminary investigation. While those
cases that do not require preliminary
investigation may be directly filed in Court but
the Court being referred to or the court wherein
such cases may be filed is only MTC or MCTC.
What about in MTCC and MeTC? The same
cannot be filed directly before such courts. In
other words the case must have to be filed before
the prosecutor’s office.
QUESTION: If a case does not require preliminary
investigation, can you file it before the
prosecutor’s office? The answer is YES. Sa ato
pa simple nga pagkasulti whether a case requires
a preliminary investigation or not you can file it
before the prosecutor’s office. To make it simpler
whether a case requires a preliminary
investigation or not the same can be filed before
the prosecutor’s office. If the case is filed before
the prosecutor’s office and the same does not
require preliminary investigation, the
prosecutor’s office may directly file the case in
Court.
For example. Slight physical injuries, 1 month
arresto menor ra ma na. So pwede ra na nimu
ma file didto sa prosecutor’s office. So the
prosecutor’s office may or may not conduct
preliminary investigation because such case does
not require preliminary investigation. So the
prosecutor’s office has the option whether or not
to conduct preliminary investigation. So unsay
may buhaton ana sa prosecutor’s office?
Derecho ra nimu ug file? Dili. Ug tan-aw nimu
dunay ebidensya, dunay affidavit sa kihante ug
tan-aw nimu dunay lig-on nga ebidensya aw e file
nimu sa Court. Kung walay igung ebidensya then
e-dismiss. So the prosecutor’s office may file it
directly in Court without conducting any
preliminary investigation.
By the way na miss nato ang question usa sa
exam. What is your remedy for example you are
the plaintiff for example the defendant files a
motion to quash on the ground of lack of
jurisdiction, the court granted the motion and
dismissed the case, what is your remedy? Re-file
the case because the dismissal is without
prejudice. Can you file an appeal? Under Rule
41 dismissal without prejudice cannot be the
subject of appeal. Dismissal without prejudice is
similar to an interlocutory order, it cannot be a
subject to an appeal. So ug dili na siya subject to
an appeal unya nag tuo ka nga sayop ang Korte
ikaw maoy sakto. Unsa may remedy nimu? Aw
wa nay lain, Petition for Certiorari on the ground
that the Court acted with grave abuse of
discretion.
So timan-e katong sa Rule 41 unsa ang mga
orders nga dili pwede ma subject ug appeal
timan-an jud to ninyo. Kay di man to siya ma
subject to appeal, wa man to siyay remedy, mao
to siyay ma subject ug Certiorari.
Sec. 14 is important. This is about amendment
or substitution.
Sec. 14. Amendment or substitution. – A
complaint or information may be amended,
in form or in substance, without leave of
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court and when it can be done without
causing prejudice to the rights of the
accused.
However, any amendment before plea,
which downgrades the nature of the offense
charged in or excludes any accused from
the complaint or information, can be made
only upon motion by the prosecutor, with
notice to the offended party and with leave
of court. The court shall state its reasons in
resolving the motion and copies of its order
shall be furnished all parties, especially the
offended party.
If it appears at anytime before judgment
that a mistake has been made in charging
the proper offense, the court shall dismiss
the original complaint or information upon
the filing of a new one charging the proper
offense in accordance with section 19, Rule
119, provided the accused shall not be
placed in double jeopardy. The court may
require the witnesses to give bail for their
appearance at the trial.
 How do you distinguish amendment from
substitution? Dili ni pareho. When the
information is changed and the change is
for the same or for an offense which is
necessarily included in or which
necessarily includes the original charge
the same is considered AMENDMENT.
BUT if the new information is for an
entirely different charge that is
SUBSTITUTION.
 So kung ang inusab nga information is for
the same charge, same offense or
offense which is necessarily included in
the original charge or offense which
necessarily includes the original charge
then that is amendment. For example
the information is changed because the
name of the accused is replaced with his
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
true name. There is no change in the
offense charged, the charge is for the
same offense, so this is amendment.
Example the date is changed necessarily
the charge would be the same, that is
amendment.
 Now what about if the offense charged is
changed for example from murder and it
was changed to homicide. Unsa ma na?
Amendment or substitution? That is
amendment because homicide, the new
charge is necessarily included in. When
you say “included in”, some of the
elements of the new crime are included
in the original charge. Is it not that some
of the elements in homicide is
necessarily included in murder? So mao
niy pasabot the new offense charged is
necessarily included in.
 What about the reverse? From homicide,
the crime is changed to murder. That is
amendment because the new offense
necessarily includes the original charge.
Basta related ra gani amendment.
Necessarily includes.
 What new charge will be considered a
substitution? For example the charge is
theft and it is changed to estafa. You
have learned in your Criminal Law that
theft and estafa are completely different.
Kahinumdum mu nga dunay clasi sa theft
nga way taking kay na na niya daan, kato
btaw issue kung juridical possession ba
or physical possession, kahinumdum mo?
Kung masayup kag charge ana, example
it is estafa, you charged the accused with
theft, the accused cannot be convicted of
estafa. Dili pareho diri nga gi charge
nimu siya ug murder unya ug ma prove
nimu ug homicide pwede nimu siya
convictohun sa homicide, the lesser
offense, dili na pwede ma dismiss. Pero
diri ug e charge nimu ang accused ug
theft unya ang na proven kay estafa d
aye or vice versa, dili pwede convictuhon
nimu sa crime proved. So if you charge a
person with theft but the crime proven is
estafa, the court cannot convict him of
estafa. So unsay mahitabu kung
pananglitan in the course of the
presentation of evidence or even before
arraignment, for example before
arraignment the handling prosecutor
discovers that the correct charge, for
example the information is for theft and
the handling prosecutor discovers that
the correct charge is estafa, unsa may
buhaton niya? Naturally he will change
the information, that is SUBSTITUTION.
That is NOT amendment.
 Another distinction is amendment could
be merely FORMAL or SUBSTANTIAL.
Whereas, substitution is ALWAYS
SUBSTANTIAL kay gi change gud na nimu
ang charge.
 Unya another distinction is that
amendment could be done without leave
of court before arraignment and with
leave of court after arraignment.
However substitution could be done with
prior leave of court always.
 Another is that in amendment if the
amendment is formal, another
preliminary investigation is not required
whereas in substitution preliminary
investigation is always required.
 Sec. 14 says that a complaint or
information may be amended, in form or
in substance, without leave of court.
Page | 273

When you say without leave of court it
means without asking permission from
the court, the prosecution can
immediately file an amendment. And the
same could be done as a matter of right
on the part of the prosecution, and the
same could be done before arraignment
of the accused whether the amendment
is formal or substantial.
 After arraignment, meaning after the
accused entered a plea, the amendment
could be done only with leave of court.
So after the plea and during the trial a
formal amendment may only be made
with leave of court and it can be done
without causing prejudice to the accused.
In other words after arraignment only
FORMAL AMENDMENT could be allowed if
the same would not prejudice the rights
of the accused especially his right
against double jeopardy.
 Regarding SUBSTANTIAL AMENDMENT,
the same CANNOT be done AFTER
arraignment. For example when the
accused is charged with homicide before
his arraignment the information can be
amended as a matter of right even
without leave of court. But after he is
arraigned the same cannot anymore be
amended because the amendment could
be considered substantial. There is
however an exception.
 General rule: Before arraignment
amendment is a matter of right to the
prosecution. The prosecution can amend
the information as a matter of right
without prior leave of court. HOWEVER if
the amendment downgrades the nature
of the offense charge or if the
amendment would exclude an accused,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the same requires a motion and with
notice to the offended party and with
leave of court.
 Sa ato pa tulo ang gikinahanglan kung e
downgrade nimu ang charge or you
exclude an accused. In order for the
amendment to be valid: (1) there has to
be a motion, motion to amend; (2) with
notice to the other party, remember
notice is the only one required not
consent, sa ato pa igu lang pahibawun,
musugot siyag sa dili mao ra nay gi
require sa balaod nga pahibawun siya;
(3) then leave of court.
 For example the accused is charged with
murder but the handling prosecutor.
Nganung mag hisgot man jud tag
handling prosecutor? Possibly man gud
nga kanang prosecutor, inigka human
man gud ug preliminary investigation dili
ma na necessary nga katong prosecutor
nga nag conduct sa preliminary
investigation mao say mu handle didto.
Kay kanang kaso human ug conduct ug
preliminary investigation e file ma na
ngadto sa Court dib a, uy raffle-on ma na.
Unya kanang mga Fiscal dili ma na sila sa
bisag asang Korte duna man nay silay
assigned Court. Mahitabu nga katong
kaso wherein you were the one who
conducted the preliminary investigation
dili ma file sa imung Korte. Ang
mahitabu ana nga ang katong handling
prosecutor, tan-aw tong iyang findings,
possibly nga ang iyang opinion pag
assess niya sa mga ebidensya possible
nga mulahi sa imung idea. Siya na man
responsibilidad ato. So pananglitan pag
handle nimu gi file-an ug murder, pag
tan-aw nimu nganung murder ma ni wala
may allegation ug treachery or evident
premeditation or wa tanan? So unsa man
imung buhaton? Pwede nimu nga e
amend ang information but before doing
that because you are now downgrading
the charge, you have to file a motion in
court, furnish the offended party with a
copy of your motion and you have to wait
the approval of the court. If the court
approves, meaning the court has given
its leave or information for you to amend
the information.
 Another instance is that for example ni
file ka ug murder unya upat ka buok ang
gi charge. A, B, C, and D. Unya pag
review nimu sa information, nganung gi
apil ma ni si D wa man gyud ni siya
masulti sa mga witnesses? Kaluoy ni D,
non-bailable ra ba ning murder. The job
of the public prosecutor is not to convict
but to see that justice is done. Is it not
an injustice dunay isa ka tawo nga
included in a charge which is non-
bailable? Unya imung nakita pasagdan
ran a nimu nga malata sa prisuhon only
to be acquitted later on kay way
ebidensya batok niya. So imu nang
katungdanana, you have to file a motion
to amend to exclude the accused.
 Another pud, possible ug puros sila sad-
an, possible pud nga imu siya e exclude
kay himuon nimu siyang State Witness.
Pwede nga ma exclude nimu siya,
sabuton nimu siya daan nga ako kang e-
exclude sa charge unya kanang himuon
ka naming state witness. Try to read this
case of SPO1 Suverano, et. al., vs. PP,
472 SCRA 125. This case is about the
case of Lacson regarding the killing of
Dacer and his driver.
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 Then you might ask why is it that the
private offended party has to be notified?
Why is it in this situation there has to be
a leave of court? The purpose of the rule
is to avoid abuse by prosecution and to
protect the offended party, that is why
prior leave of court is necessary, so that
the court could assess whether or not
there is really a need amend the
information, there is really a need to
downgrade the charge, there is really a
need to exclude an accused.
 The last paragraph is about substitution if
it appears at anytime before judgment
that a mistake has been made in
charging the proper offense, the court
shall dismiss the original complaint or
information upon the filing of a new one
charging the proper offense provided the
accused shall not be placed in double
jeopardy.
 The court may require the witness to give
bail for their appearance in court.
Usually kanang bail e put up ra na sa
accused. Kanang witness dili na mu put-
up ug bail. Pero kaning sa Sec. 14 last
sentence, this is an instance wherein the
court may require a mere witness to post
bail to ensure his appearance during the
trial.
 So unsa to? Before arraignment, usa sa
mga points sa proceedings kung criminal
ang bantayanan kaayo mao kanang
arraignment, usa ni ana ang amendment
kay before arraignment amendment is a
matter of right either formal or
substantial. But after arraignment only
formal amendment could be allowed
provided it could not prejudice the right
of the accused. Pero duna puy exception
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ana, so in other words substantial
amendment after arraignment could not
be allowed. Pero dunay exception ana IN
CASE OF SUPERVENING EVENT. For
example, the accused is charged with
frustrated murder unya gi change ngadto
sa murder kay namatay ang iyang gi
dunggab, unya na arraign na siya, pwede
pa ba? Substantial na na, from frustrated
to murder consummated, pwede ba na
nga ma amend? YES. Because that is a
supervening event. Ang iyang death
supervening event. Pero kung patay na
daan unya gi charge nimu ug frustrated
murder later on imu gi amend, aw dili na
na pwede kay dili na ma na ma consider
nga dunay supervening event.
 Naay mga kaso diha sa inyung libro you
read them. Usa ni ana kanang kaso
Galvez vs. CA, PP vs. Bautista, PP vs.
Magpale. Then that case of PP vs.
Montenegro. Tihankee, Jr. vs. Madayag,
March 6, 1992. This is the case about the
son of Chief Justice Tehankee.
Sec. 15. Place where action is to be
instituted. - (a) Subject to existing laws, the
criminal action shall be instituted and tried
in the court of the municipality or territory
where the offense was committed or where
any of its essential ingredients occurred.
(b) Where an offense is committed in a
train, aircraft, or other public or private
vehicle in the course of its trip, the criminal
action shall be instituted and tried in the
court of any municipality or territory where
such train, aircraft, or other vehicle passed
during its trip, including the place of its
departure and arrival.
(c) Where an offense is committed on
board a vessel in the course of its voyage,
the criminal action shall be instituted and
tried in the court of the first port of entry or
of any municipality or territory where the
vessel passed during such voyage, subject
to the generally accepted principles of
international law.
(d) Crimes committed outside the
Philippines but punishable under Article 2
of the Revised Penal Code shall be
cognizable by the court where the criminal
action is first filed.
 We have discussed last night that venue
in criminal cases tells us the place where
you are going to file the case as well as
the jurisdiction of the court. So venue in
criminal cases is jurisdictional. It is
required that the case has to be filed in
court that has jurisdiction over the place
where the crime was committed.
 Under Sec. 15. GEN RULE: criminal
action shall be filed and tried in the court
of the municipality or territory where the
offense was committed or where any of
its essential ingredients occurred. Pero
dunay exception diha. SUBJECT to
existing laws. Meaning kung dunay mga
balaod nga nag specifically mention nga
kanang kasuha bisag wala na commit
diha pwede ra ma file anang maong
Korte then that particular law will prevail.
 Example cases committed by public
officers or crimes committed by public
officers in relation to the performance of
their duties. And these public officers
occupy salary grade 27, asa ma na nimu
e file ang maong kaso? Adto sa
Sandiganbayan. Asa man ang
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Sandiganbayan? Sa Manila. So for
example you are a public officer here in
Cebu and your case is filed in
Sandiganbayan in Manila, can you file a
motion to quash on the ground that the
court does not have jurisdiction over your
case? NO. Kay exception na to the rule.
 Another is the rule on libel. Sa libel
under Art. 360 of the Revised Penal Code
mag depende na dunay distinction kung
and offended party kay private person or
public officer. Tungod kay kung private
person ang offended party under Art. 360
can file the case in the place where he is
an actual resident. For example ang
newspaper taga Manila, example PDI
unya dunay libelous article gi publish nila
unya dia ka sa Cebu pwede nga diri ka
mu file sa Cebu bisan pa ang printing
didto nahitabu sa libel sa statement sa
Manila or pwede pud adto didto. Pero ug
ikaw offended party nganung didto man
jud didto, ari jud nimu e file diri arun sila
maoy mahasul. Another, If the offended
party is a public officer the case could be
filed in Manila, in case such public officer
does not hold office in the city of Manila
the case shall be filed in the province or
city where he is holding office at the time
of the commission of the offense or
where the libelous article is printed. Mao
ra nay exception to the general rule.
Importante kayo kay the case can be
dismissed although the dismissal is
without prejudice hasul na man ug refile.
 If the case is committed in a train,
aircraft, or other public or private vehicle
in the course of its trip, the criminal
action shall be instituted and tried in the
court of any municipality or territory
where such train, aircraft, or other
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
vehicle passed during its trip including
the place of its departure and arrival.
 For example you are boarding an airplane
going to Manila unya gi hi-jack mu, asa
man nimu e file ang maong kaso? Look
at vehicle, aircraft, its either in the place
where the aircraft passed during its trip
including the place of its departure and
arrival. So you can file the case either in
Lapu-Lapu or in the City of Manila.
 Where an offense is committed on board
a vessel in the course of its voyage, the
criminal action shall be instituted and
tried in the court of the first port of entry
or of any municipality or territory where
the vessel passed during such voyage,
subject to the generally accepted
principles of international law.
 By the way katong atong gi hisgutan nga
aircraft that refers only to domestic
airplanes because regarding international
flight letter (d) shall apply. The same
with letter (c) that pertains only to
domestic vessels because regarding
international vessel letter (d) shall apply.
 Unsa man d i ning letter (d)? Crimes
committed outside the Philippines but
punishable under Article 2 of the Revised
Penal Code shall be cognizable by the
court where the criminal action is first
filed. So if the crime is committed on a
board an international vessel Philippine
registration, the case could be filed in
any RTC in the Philippines. So bisag asa
nga RTC.
 Remember also that venue in criminal
cases is jurisdictional the Supreme Court
in the interest of justice can order change
of venue. Only the Supreme Court can
order a change of venue. One example is
the case of the Ampatuans. The crimes
of multiple murder were committed in
Mindanao but upon request of the
relatives of the victims, the venue has
been transferred to Metro Manila, only
the Supreme Court.
 In your book duna pud dihay mga kaso
nga mga exceptions other than libel nga
exception sa general rule on venue. For
example kanang continuing offenses.
Kidnapping can be tried where a person
is taken or it could also be filed in the
place or at the place where he is brought.
What about in falsification? In
falsification the crime of falsification
should be filed in the place where the
falsified document was executed. For
example the falsified document is
executed in Cebu City and it is used for
example in Tagbilaran, Bohol the crime of
falsification can be filed here in Cebu City.
What about violation of BP 22?
Regarding violation of BP 22 the case
could be filed in the place where the
check was issued or where the check was
delivered or where the check was
dishonored. Either ana because violation
of BP 22 is considered a transitory crime.
 So bantayan na ninyu, libel, violation of
BP 22
RULE 111 - PROSECUTION OF CIVIL ACTION
We have learned that a person criminally
liable for a crime is also civilly liable if there is of
course a private offended party. If way private
Page | 276

offended party then he is not civilly liable. Fine
tingali but not damages.
Section 1. Institution of criminal and civil
actions. – (a) When a criminal action is
instituted, the civil action for the recovery
of civil liability arising from the offense
charged shall be deemed instituted with
the criminal action unless the offended
party waives the civil action, reserves the
right to institute it separately or institutes
the civil action prior to the criminal action.
The reservation of the right to institute
separately the civil action shall be made
before the prosecution starts presenting its
evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation.
When the offended party seeks to enforce
civil liability against the accused by way of
moral, nominal, temperate, or exemplary
damages without specifying the amount
thereof in the complaint or information, the
filing fees therefore shall constitute a first
lien on the judgment awarding such
damages.
Where the amount of damages, other
than actual, is specified in the complaint or
information, the corresponding filing fees
shall be paid by the offended party upon
the filing thereof in court.
Except as otherwise provided in these
Rules, no filing fees shall be required for
actual damages.
No counterclaim, cross-claim or third-
party complaint may be filed by the accused
in the criminal case, but any cause of action
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
which could have been the subject thereof
may be litigated in a separate civil action.
(b) The criminal action for violation
of Batas Pambansa Blg. 22 shall be deemed
to include the corresponding civil action. No
reservation to file such civil action
separately shall be allowed.
Upon filing of the aforesaid joint criminal
and civil actions, the offended party shall
pay in full the filing fees based on the
amount of the check involved, which shall
be considered as the actual damages
claimed. Where the complaint or
information also seeks to recover
liquidated, moral, nominal, temperate or
exemplary damages, the offended party
shall pay additional filing fees based on the
amounts alleged therein. If the amounts are
not so alleged but any of these damages
are subsequently awarded by the court, the
filing fees based on the amount awarded
shall constitute a first lien on the judgment.
Where the civil action has been
filed separately and trial thereof has not
yet commenced, it may be consolidated
with the criminal action upon application
with the court trying the latter case. If the
application is granted, the trial of both
actions shall proceed in accordance with
section 2 of this Rule governing
consolidation of the civil and criminal
actions.
Under Sec. 1 of Rule 111 general rule
when a criminal case is filed civil liability is
deemed included. Meaning presumed included
EXCEPT there are only three exceptions. The
exception are: (1) When the private offended
party has expressly waived his right to collect
civil liability or (2) the private offended party has
expressly reserved his right to file a separate civil
action or (3) has already filed a separate civil
action before filing the criminal case.
Mu ingun gani nga reservation
nagpasabot na nga ari na pagkahuman ug file sa
criminal action. Kay kung na file na ang civil
action before the filing of the criminal action dili
ka maka ingun nga reserve. Reserve gani wa pa,
imung gipasidanghan ang korte nga mu file ko.
That presupposes that a civil action is already
filed and you are informing the court that you are
going to file a separate civil action.
And when shall the reservation of the
right to file a separate civil action be made? It
shall be made before the prosecution starts
presenting its evidence and other circumstances
affording the offended party a reasonable
opportunity to make such reservation.
Unsa may katarungan nganu man nga
deemed included man ang civil liability? Now
ang purpose sa rule ana is to avoid multiplicity of
suits. And gani for practical purposes mas maau
man gani nga diil ka mu file ug separate civil
action. Pareho ra man unya mas maka daginot
pa jud ka. Nganu mas makadaginot man ka?
Just imagine kun dunay separate civil action nga
imung e file necessary jud na nga muhire kag
private prosecutor. Nganung necessary man nga
mu hire ka ug private prosecutor? Kay ang Fiscal
dili man ka appear didto atong pure nga civil nga
kaso so necessarily you have to avail of the
services of a private prosecutor. Kung
pananglitan dili ka mu file ug separate civil
action, pwede ba ka maka collecta ug damages
diri sa criminal cases? Pwede. Unya kinsa may
mu presentar para sa imu damages? Ang fiscal.
Kanang imung ebidensya katong mga gastos
nimu for example sa hospital tungod sa iyang
gihimu pag dunggab or pagpusil imu nang
itugyan didto sa Fiscal unya ang Fiscal nay mu
present ana in the course of the trial. So wa pa
kay gasto kay di man ka mubayad sa Fiscal kay gi
sweldohan na man siya sa gobyerno.
Unya nganu man nga dunay mga tawo,
pwede ra man kaha ang Fiscal, nga mu hire ug
private prosecutor. Daghan nag katarungan.
Unang katarungan ana wa siyay salig sa Fiscal
hadlok siya nga basig dili tinud-on sa Fiscal.
Gusto siyag maniguro nga mudaug. Pero
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hinumdumi nga bisag duha ang imung abogado
dili na sigurado. It is not the number of lawyers.
And that’s the reason nganung ang private
complainant pwede nga mu hire ug private
prosecutor. To prosecute the civil aspect of the
case. So when the private offended party
decides to file a separate civil action ang private
prosecutor dili na ka appear diri sa criminal case.
Nganu man? Wa na may civil liability nga e
enforce, tua na man didto, subject man to
another case. Unya mi ingun gani ka ug civil
case or separate civil action of course gawas sa
mu hire ka ug private lawyer mubayad pa gyud
ka na ug docket fee.
What about if you do not file a separate civil
action e include ra nimu diri sa criminal action?
Look at the 3rd paragraph. When the offended
party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or
exemplary damages without specifying the
amount thereof in the complaint or information,
the filing fees therefore shall constitute a first lien
on the judgment awarding such damages. Dili
kakolektahan pero ug makadaug ka it will be
considered as lien.
Where the amount of damages, other than
actual, is specified in the complaint or
information, the corresponding filing fees shall be
paid by the offended party upon the filing thereof
in court. Kani diri sa 3rd paragaraph wa nimu gi
specify which is the usual. Pero ug imu nga gyud
gi specify then the court will now require you to
pay filing fees other than actual. Tungod nga
kanang actual dili ka e subject ug filing fees.
Except as otherwise provided in these Rules, no
filing fees shall be required for actual damages.
No actual damages gawas lang kung BP 22 ug
estafa. BP 22 pa file-on jud ka ana sa filing fee
sa actual ug sa estafa.
If the private offended party does not file
a separate civil action, what will happen to the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
civil liability? It is deemed included. Since it is
deemed included in the criminal action, can the
accused file counter-claim, cross-claim or could
there be a third-party complaint? Deemed
included man kaha ang civil liability unya kun
duna pa nay separate action pwede man siya mu
file ug counter-claim, cross claim. The answer is
NO. No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case but if there is such a cause of
action he could file a separate civil action.
Regarding violation of BP 22 no
reservation to file such civil action separately
shall be allowed. Meaning to say kung BP 22
compulsory gyud na, unya dili gyud na e allow
nga dunay separate civil action. So that is why
pabayrun ka ug filing fee. So dili pwede nga e
reserve nimu, dili pwede nga file ug separate civil
action and you have to pay filing fee. Unya ug
mangayu pa gyud ka ug exemplary, temporate,
nominal other than actual damages, additional
filing fees shall be paid. Where the civil action
has been filed separately and trial thereof has
not yet commenced, it may be consolidated with
the criminal action upon application with the
court trying the latter case. So that is about
violation of BP 22.
Sec. 2. When separate civil action is
suspended. – After the criminal action has
been commenced, the separate civil action
arising therefrom cannot be instituted until
final judgment has been entered in the
criminal action.
If the criminal action is filed after the said
civil action has already been instituted, the
latter shall be suspended in whatever state
it may be found before judgment on the
merits. The suspension shall last until final
judgment is rendered in the criminal action.
Nevertheless, before judgment on the
merits rendered in the civil action, the
same may, upon motion of the offended
party, be consolidated with the criminal
action in the court trying the criminal
action. In case of consolidation, the
evidence already adduced in the civil action
shall be deemed automatically reproduced
in the criminal action without prejudice to
the right of the prosecution to cross-
examine the witness presented by the
offended party in the criminal case and of
the parties to present additional evidence.
The consolidated criminal and civil actions
shall be tried and decided jointly.
During the pendency of the criminal
action, the running period of prescription of
the civil action which cannot be instituted
separately or whose proceeding has been
suspended shall be tolled.
The extinction of the penal action does
not carry with it extinction of the civil
action. However, the civil action based on
delict shall be deemed extinguished if there
is a finding in a final judgment in the
criminal action that the act or omission
from which the civil liability may arise did
not exist.
Under Sec. 2, After the criminal action
has been commenced, the separate civil action
arising therefrom cannot be instituted until final
judgment has been entered in the criminal
action. Nahinumdum nga ug wala ma file ahead
ang civil action unya gusto gyud ka mu separate
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you to make the reservation. Meaning that you
are going to inform the court that you are filing a
separate civil action. However, the filing of the
separate civil action under Sec. 2 cannot be
allowed until the termination of the criminal
action. That is why dili practical nga imu pa nang
e separate. Nganu man? Mag dugay dugay lang
ka kay dili man ka pwede ka file hangtud nga dili
mahuman tong criminal case. Kay ang criminal
case man gud shall be given priority.
What about if ang civil action na file na
nimu ahead? The same shall be suspended. The
proceedings in the civil case shall be suspended
in whatever stage it is and the same has to wait
for the termination of the criminal case. Do dili
gyud practical nga imung e lahi kay nagadugay
dugay lang ka.
However, there is a solution to that under
the Rules. The solution is CONSOLIDATION. So if
a separate civil action has already been filed and
you do not want the same to be suspended until
the termination of the criminal case then you
move for the consolidation of the two cases.
Wherein the civil case shall be transferred to the
court trying the criminal case. Sa ato pa useless.
Kay mao ra man gihapon dunganun.
Unya what will happen if in the civil case
there already been a presentation of evidence?
Now the presentation of evidence or evidence
already produced in the civil action shall deemed
automatically reproduced in the criminal action
without prejudice to the right of the prosecution
to cross-examine the witnesses and the
consolidated cases shall be tried and decided
jointly. Nahinumdum mu anang consolidation of
cases? Na na sa Rule 31. Proper ang
consolidation of cases kung ang mga parties
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
pareho, ang mga cases related. So kung mu file
kag separate civil action, consolidation is proper.
Nganung proper man? Tungod kay the parties
are the same, the issues are the same, so
consolidation is proper.
Now, the extinction of the penal action
does not carry with it the extinction of the civil
action. Meaning to say when a criminal case is
dismissed it does not necessarily follow that the
accused is no civilly liable because there are
instances wherein the criminal case is dismissed
and yet the accused is civilly liable. Anus-a ma ni
siya mahitabu?
INSTANCES WHEREIN A CRIMINAL CASE IS
DISMISSED AND YET THE COURT HOLD THE
ACCUSED CIVILLY LIABLE:
(1) When the accused is acquitted based
on reasonable doubt.
Pero dili pud na nga anytime when the
accused is acquitted based on reasonable doubt
liable na siya civilly. Dili. It does not follow. It is
only when an accused is acquitted based on
reasonable doubt and the court believes that the
evidence presented is not sufficient to convict
him of the crime but only constitute him civilly
liable.
(2) When the court decides that the
liability of the accused is purely civil in nature.
Example. Kana bitaw mga money lender
ila ma nang e charge ang ilang nang huwam ug
estafa sagad ana papirmahun kunuhay nila ug
trust receipt, mag buhat sila ug resibo resibo
title-an nila ug trust receipt kunuhay mihatag sila
ug kwarta ngadto sa borrower unya huwam gud.
Imbis nga promissory note ang papirmahan, ang
papirmahan trust receipt nga kunuhay katong
kwarta nga gihatag ipapalit ug item. Pero ang
tinud-anany jud nilang katarungan kay huwam.
So file-an jud nag estafa kay duna may
documento. Unya ra ma na sa hearing mahibaw-
an nga civil liability d i. The court will have to
acquit the accused of estafa but require him to
pay the amount that he received. Mao ra man
pud nay purpose sa kihante hadlukun pud
pugson. Kay ug pure loan na dili man ka maka
file ug estafa.
(3) When the civil liability does not arise
from the crime or from the act where the accused
was acquitted.
So lahi.
So those are the instances wherein an
accused could be held civilly liable even if he is
acquitted of the crime charged.
We have learned that a criminal case is
filed civil liability is included except (1) when the
private offended party waives his right to claim
civil liability, (2) when he files a civil prior to the
filing of the criminal case or, (3) when he makes
a reservation to file a separate civil action.
That is the general rule. Sa ato pa ug dili
siya mubuhat ug reservation aw deemed
included gyud didto ang civil liability. Now dunay
exception to the rule na sad. Sec. 3.
Sec. 3. When civil action may proceed
independently. – In the cases provided in
Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines, the independent
civil action may be brought by the offended
party. It shall proceed independently of the
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criminal action and shall require only a
preponderance of evidence. In no case,
however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action.
In criminal cases involving Art. 32, 33, 34
and 2176 of the Civil Code, unsa ma ning Art. 32?
Mao ni siya katong violation sa civil liberties. For
example arbitrary detention, kidnapping, mag
involve na ug civil liberties. Now kung mu file
kag kaso nga kidnapping, you can file a separate
civil action separately or independently and the
same would proceed independently from the
criminal case.
Atong nahibaw-an ganina nga kung naka
file gani kag civil action ahead sa criminal ma
suspended. Kung wa nimu ma file unya
nagpareserve ka nga mu file ka later on unya na
kung mahuman PERO kung criminal cases gani
nga mag involve ni adtong mga Articles 32, 33,
34 ug 2176 of the Civil Code aw dili ma
suspended. The civil case would proceed
independently. Kato ra pud nga mga kasoha.
For example. Unsa ma nang 2176? Kato
ning torts. If you are driving your car nakaligis ka
ug pedestrian, aw torts ma na. Pwede ka
makasuhan ug criminal case, reckless
imprudence resulting in homicide for example,
pwede pud ka makasuhan ug civil action. Ang
cause of action Torts. And the civil case will
proceed independently from the criminal case.
Dili kinahanglan e suspenso.
So, there is no need in cases involving
Art. 32, 33, 24 and 2176, there is no reservation
required because according to the law under
Rules of Court that the same would proceed
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
independently. Pero kinahanglan nimu e inform
ang Korte pud in order to avoid double collection,
basin pabayrun ug kaduha ang accused.
Look at this case of ABS-CBN
Broadcasting Corporation vs. Ombudsman, Oct.
15, 2008.
Pero kailangan nimo e inform ang court
pud. Ngano man? In order to avoid double
collection. Basin kaduha pa bayron ang accused.
Pa bayron pa siya didto sa Civil, pa bayron pa
siya sa Criminal case.
Look at this case: ABS CBN Broadcasting
Corporation vs. Ombudsman, October 15, 2008
Usbon nako. The rule that – There is an
implied institution of civil action when there is no
reservation, or when no separate civil action is
filed ahead of the criminal case does not apply in
those criminal cases involving Articles 32, 33, 34,
and 2176 of the Civil Code. So there is no implied
institution of civil action. You read the case ha?
Sec. 4. Effect of death on civil actions. – The
death of the accused after arraignment and
during the pendency of the criminal action
shall extinguish the civil liability arising
from the delict. However, the independent
civil action instituted under section 3 of
this Rule or which thereafter is instituted to
enforce liability arising from other sources
of obligation may be continued against the
estate or legal representative of the
accused after proper substitution or against
said estate, as the case may be. The heirs
of the accused may be substituted for the
deceased without requiring the
appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
A final judgment entered in favor of the
offended party shall be enforced in the
manner especially provided in these rules
for prosecuting claims against the estate of
the deceased.
If the accused dies before arraignment,
the case shall be dismissed without
prejudice to any civil action the offended
party may file against the estate of the
deceased. This is about effect of the death
of the accused on civil actions.
What will happen to the civil liability of
the accused when he dies while the case is
pending? Nahibaw an man nato na kung criminal
case before na file ang kaso, before na convict na
ang accused mawagtang man gyud na. Ang ang
imo na prisohon ang patay na. Ang problema ang
iyang civil liability.
Example: The accused has committed a crime.
He died tungod kay nag sige siya huna huna sa
kaso, naguol nuon gi atake ug highblood.
Namatay before arraignment. What will happen
to his civil liability? Look at the last paragraph
If the accused dies before arraignment,
the case shall be dismissed without
prejudice to any civil action the offended
party may file against the estate of the
deceased. This is about effect of the death
of the accused on civil actions.
Sa ato pa, ma dismissed ang kaso but the
civil liability may be filed against the estate of
the deceased. Kung naa siyay estate. Kung wala,
T.Y.
What if the accused has already been
arraigned, and he died during the pendency of
the criminal action? Meaning before conviction.
Naa sa first paragraph.
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

Take note: Mawagtang ang iyang civil the civil liability

liability if the civil liability comes from the crime. of the accused Criminal cases involving Articles 32, 33,
Ngano diay? Naa ba diay civil liability na dili comes from other 34 and 2176 (torts) of the Civil Code. Review Civil
gikan sa crime? Yes, if the civil liability does not sources of Code!
come entirely from the crime committed then his obligation, then
civil liability still subsists. his civil liability So kung ma dismissed ang na ang civil
subsists. case, it does not mean na ma dismissed pud ang
criminal case. And vice-versa.
***
Pananglitan, ako na ni gi discuss sa Sec. 6. Suspension by reason of
Criminal Law, gipa baligya ka karon ug necklace prejudicial question. – A petition for
worth 100,000. With the agreement that you suspension of the criminal action based
Look at the case of : have to remit the proceeds within one month if upon the pendency of a prejudicial question
sold. If not, you have to return the necklace. in a civil action may be filed in the office of
Dato vs. People, December 13, 2010 Unsa man ang existing contract? That is the the prosecutor or the court conducting the
contract of agency to sell. Sa ato pa, agent ka preliminary investigation. When the
This case niya. Dili contract of sale. What will happen if criminal action has been filed in court for
reiterated the after the lapse of one month you fail to return the trial, the petition to suspend shall be filed
doctrine of People necklace or remit the proceeds? What are your in the same criminal action at any time
vs. Bayotas. In liabilities? before the prosecution rests.
People vs.
Bayotas, the You are criminally liable of estafa. At the Sec. 7. Elements of prejudicial question. –
accused died same time, you are civilly liable. Hinumdumi The elements of a prejudicial questions are:
while the case na imong civil liability diha kay gikan sa contract (a) the previously instituted civil action
was pending kay duna man moy contract of agency to sell. So involves an issue similar or intimately
appeal. He was if namatay, you are convicted, and you appeal, or related to the issue raised in the
convicted by the while the case is pending ang imong civil liability subsequent criminal action, and (b) the
trial court and magpa bilin gihapon because your civil liability resolution of such issue determines
ordered him to did not arise from crime, but from a contract. whether or not the criminal action may
pay civil liability. To make you understand better, you read the proceed.
However, while case of People vs. Dato, reiterating the doctrine
the case was in People vs. Bayotas.
pending appeal Another important sections. What do you
he died. Sec. 5. Judgment in civil action not a bar. – mean by Prejudicial Question? We will have an
Question: What A final judgment rendered in a civil action example here.
will happen to his absolving the defendant from civil liability
civil liability? is not a bar to a criminal action against the X is claiming ownership over this parcel
According defendant for the same act or omission of land and he is in actual possession. X is
to the SC in subject of the civil action. claiming to be an owner of this lot because he
People vs. bought this lot from S. While occupying this
Bayotas, the civil parcel of land, Y came up and claimed that he is
liability of the Meaning to say, if the defendant is also an owner of this lot. His claim of ownership
accused would be absolved in a civil action, it does not mean that is based on inheritance. “Ako mani gi sunod gikan
extinguished if he he is also acquitted in the criminal action. This is sa akong Papa.” There is now conflicting claims
his civil liability in situations where independent civil action is over this parcel of land. This resulted to kinihaay
entirely comes allowed. Nag discuss manta ganiha ug (kaso). X ni kiha ni Y, it could be quieting of title.
from the crime independent civil action. Kanus-a gani t0o na Or it could be the other way around, Y files a case
committed. But if independent civil action will be allowed? against X of recovery of ownership over a real
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property. So duna nay civil case na file batok nila.
Kay lage si Y mu insist man gyud na siyay tag-iya
sa yuta, duna man gyud mga coconuts standing.
Gikuha ni Y ang mga bunga kay tag-iya man siya.
Si X kay ni file ug qualified theft kay nag
involve man ug coconuts against Y.
So there is now a case of People vs. Y. You
observe that in this case of People vs. Y of
qualified theft, the issue of ownership over this
lot is very important. If this case filed against Y
would be dismissed and the court will render
decision in favor of Y, necessarily this case would
be dismissed… because how can you be
convicted? How can you be held liable for
qualified theft if you are the owner?
Kung reverse – mapildi si Y, and the court
will rule in favor of X. He could be held liable for
qualified theft, because he took coconuts from
the lot which is owned by another.
You notice that the guilt of innocence of Y
depends on the resolution on the issue of
ownership in this case. The resolution of issue of
ownership here in this civil case determines the
guilt or innocence of the accused. This question
you call this prejudicial question.
One element of prejudicial question is
that: The civil case must be filed AHEAD or
PRIOR to the criminal case. So that if the civil
action is filed later than the criminal case, there
is no prejudicial question.
Elements of Prejudicial Question are:
(a) the previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action
(b) the resolution of such issue determines
whether or not the criminal action may
proceed.
Take note of “previously instituted”.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
In our example given, if the court will rule
for Y, is there a need to proceed with the crime of
qualified theft? No more. So kung muingon ang
korte didto sa civil na si Y gyud tag iya, e dismiss
nana ang qualified theft. Kung ni ingon ang korte
na si X ang tag iya, ipadayon gyud nimo ang
qualified theft.
Do you know understand prejudicial
question? A prejudicial question necessarily
involves a criminal case and civil case. If the
other case is an administrative case, there is
no prejudicial question.
The resolution of the issue in the civil
case determines whether or not the criminal
action may proceed. Because if the issue in the
civil case will NOT affect or NOT determine the
criminal case, then there is NO prejudicial
question. Example, the wife files for a case of
declaration of the nullity of their marriage. While
the case is pending, the wife filed another case
this time a criminal case for bigamy, because the
husband entered into a second marriage before
the termination of the declaration of nullity of
their marriage. Question: Can the husband ask
for the suspension of the bigamy case on
the ground of prejudicial question?
NO, because whether or not ma annul or
declare valid ilang first marriage that will not
affect the bigamy case. Under the law, you can
only validly contract a second marriage after the
first marriage is dissolved or judicially declared
void by the court. Since the husband contracted
a second marriage while the first marriage has
not yet been judicially declared void, then he
could be held guilty of bigamy. So there is no
prejudicial question.
Can the court, motu proprio, suspend the
proceedings of a criminal case on the
ground of prejudicial question? NO,
because under Section 6 of Rule 111, there has
to be a petition to suspend the criminal action.
The motion or petition of the criminal action
could be availed of even if the case is still
pending for preliminary investigation.
Can you file a motion for suspension of the
proceedings on the ground of prejudicial
question before the prosecutor’s office?
YES.
***
The suspension of the criminal case on
the ground of prejudicial question, this is one of
the exceptions to the general rule – That
criminal cases take precedence over civil
cases. Ato man gud nahibaw-an ganiha, na kung
duna gani separate civil action unya dili sa
pwede mu proceed independently, dili siya mu
involve ug Articles 32, 33, 34, 2176, e-suspend
ang proceedings sa civil action. Pero karon ang
criminal action na ang e-suspend –
exception to the rule.
RULE 112
PRELIMINARY INVESTIGATION
Another important rule. What do you
mean by Preliminary Investigation? Question
number one sa bar ninyo: Explain what is
preliminary investigation?
Section 1. Preliminary investigation
defined; when required. – Preliminary
investigation is an inquiry or proceeding to
determine whether there is sufficient
ground to engender a well-founded belief
that a crime has been committed and the
respondent is probably guilty thereof, and
should be held for trial.
Except as provided in Section 7 of this
Rule, a preliminary investigation is required
to be conducted before the filing of a
compliant or information for an offense
where the penalty prescribed by law is at
least four (4) years, two (2) months and
one (1) day without regard to the fine.
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Preliminary investigation is an inquiry or
proceeding wherein the prosecutor or an officer
authorized to conduct preliminary investigation
determines whether there is sufficient evidence
to engender a well-founded belief and the
respondent is probably guilty thereof, and should
be held for trial.
To make it simplier: Duha ra gyud ka
questions ang tubagon kung preliminary
investigation.
1. Is there any crime committed? Not necessarily
the crime charged.
2. Is the respondent (Complainant vs.
Respondent ang parties ha? Kay dili paman ni
korte.) probably guilty and should be held for
trial? Take note of “probably”. Dili man
“certainly”.
If the answers to these questions are in
the affirmative, then the case has to be filed in
court. But if the answers are in the negative, no
case is to be filed in court. The case is to be
dismissed.
Naka discuss naba ko ninyo sa hierarchy of
evidence? Ay, dili man diay ako inyong evidence.
Hierarchy of evidence
1. Proof beyond reasonable doubt
Ang pinaka taas gyud kay ang proof
beyond reasonable doubt. This is the amount of
evidence required to convict an accused. Short of
that the accused cannot be convicted. It could be
reasonable doubt.
2. Clear and convincing evidence
Kahinumdom mo na kung ang accused
gani mu raise na ug self-defense or any of the
justifying or exempting circumstances, he must
be able to produce evidence to be exculpate or
free himself from any liability he must be able to
produce clear and convincing evidence. Inig raise
man gud nimo ug self-defense you have admitted
the killing. The only way to relieve you from
liability is to produce proof that indeed, you acted
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the 3 elements of self-defense and it must be
established by clear and convincing evidence.
3. Preponderance of evidence
This is the amount of evidence so that a
party would win in a civil case. Preponderance –
mao ni siya ang timbangan. Kana ganing mu tilt
lang gamay.. preponderance – meaning superior
weight. Kung 50/50 kay balanced. Kung ang isa
51 and is 49, so superior ang isa. Mao ni ang mu
daog. Sa civil rana.
4. Prima-facie evidence
Prima facie is more than probable cause.
This is presumption… This is the amount of
evidence when remained uncontroverted,
meaning the other party fails to overthrow this,
this will become conclusive and will be sufficient
to establish a conclusion. For example,
prosecution humana ug present ug evidence.
Pwede naba e-convict ang accused ana? Dili pa.
Pwede ang accused mu file ug demurrer to
evidence on the ground that the evidence
produced is insufficient to convict. Pero kung mu
file siya ug demurrer to evidence is it 100% e-
grant sa court? Dili. Because the court will have
to assess kung ang evidence presented will
constitute prima facie, dili proof beyond
reasonable doubt. Kay kung muingon ang court
na..Ay ako e-deny imong demurrer kay ang
prosecution naka establish na ug proof beyond
reasonable doubt.. aw wala na, dili na siya maka
present ug evidence! Convicted na siya! So unsa
paman diay ang na establish sa prosecution?
Ahh.. Prima facie evidence. Hala pag present
dayon ug evidence kay kung dili ma convict ka!
Pero kung maka present ka ug evidence unya lig-
on, acquitted. Mao na siya ang gitawag ug prima
facie evidence. This is the amount of evidence
that if remains uncontroverted would become
conclusive.
5. Probable Cause
“Probably”. This is different from
“possibility”. Kanang possibility kay suspicion ra
gyud na! Possible, that is less than probable.
Possible ra. Kung mag dag-om, possible or
probable? Probably mu uwan kay naa nagud kay
nakit-an na dag-om. Pero mingaw gani kaayo,
possibly later on mu uwan. Possible gani, wa
gyud basis suspicion ra. Pero mu ingon gani ka
ug probably, naay basis. So probable cause is
more than suspicion but less than certainty. This
is the amount of evidence which is required for
the filing of a case in court. If the prosecutor fails
to find any probable cause against the
respondent then the case is to be dismissed.
6. Substantial evidence
This is the amount of evidence required
in administrative cases. In administrative cases,
what is required is not proof beyond reasonable
doubt, not even preponderance of evidence, it’s
merely substantial. That is the amount of
evidence that supports a conclusion. That is
required in illegal dismissal. To prove illegal
dismissal, dili kelangan na mu prove ka ug proof
beyond reasonable doubt. It is enough that the
illegally dismissed worker would be able to
present substantial evidence. That is the amount
of evidence necessary to support a conclusion.
What are the cases that require preliminary
investigation?
Those cases wherein the imposable
penalty is 4 years, 2 months and 1 day. Mao
ni siya ang Prision Correccional maximum.
What is the amount evidence required?
Probable cause or prima facie? Probable
cause.
***
So in other words, preliminary
investigation is a matter of right when the
imposable penalty is 4 years, 2 months and 1
day or over of the respondent.
What is the purpose of preliminary
investigation? Ngano dili nimo e-diretso ug file
sa court? There are 2 purposes:
1. To protect or shield the innocent from hasty,
malicious, and oppressive prosecution and to
protect him from open and public accusation of
Page | 283

crime, from the trouble, expenses and anxiety of
a public trial.
2. To protect the state from having to conduct
useless and expensive trials.
Although we have said that preliminary
investigation is a matter of right, the absence of
preliminary investigation does not affect the
jurisdiction of the court. It will not make the
information filed void.
What should the accuse do if he is not given
any preliminary investigation although he is
entitled to one?
File a motion for preliminary investigation
before his arraignment. Otherwise, the same
would be considered waived.
For example, the accused is charged with
murder and he was not given any preliminary
investigation because he was not able to receive
a subpoena and the case was filed without
having filed any counter-affidavit.
Can he file a motion to quash on the ground
that his right of preliminary investigation
was violated?
NO. Instead of a motion to dismiss or
motion to quash, what should have been filed is a
motion to preliminary investigation, to
remand the case to the prosecutor’s office for
preliminary investigation….
Or a motion for preliminary
reinvestigation if there has been a preliminary
investigation conducted and he wants to be
reinvestigated.
Sec. 2. Officers authorized to conduct
preliminary investigations. – The following
may conduct preliminary investigations:
(a) Provincial or City Prosecutors
and their assistants;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(b) Judges of the Municipal Trial
Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State
Prosecutors; and
(d) Other officers as may be
authorized by law.
Their authority to conduct preliminary
investigations shall include all crimes
cognizable by the proper court in their
respective territorial jurisdictions.
We have discussed this already. These
are the officers who are authorized by law to
conduct preliminary investigation.
Kanang Provincial Prosecutor mao na siya
ang Head unya daghan na siya mga assistant.
Naay first assistant, second assistant, third
assistant, fourth assistant, ug assistant lang (Un-
numbered assistant).
National State Prosecutor – naa rani sa
Manila. We have Regional State Prosecutor here,
naa sa Capitol.
Other officers – ang pinaka sikat ani kay
ang Office of the Ombudsman. Kung election, ang
sikat ka yang COMELEC, because all election-
related cases or all violations of the Election Code
are under the COMELEC. Although the COMELEC
may deputize (powerful kay pwede sila ka
deputize inig election, example police, military)…
including the Prosecutor’s Office.
Pero ang ilang power duna pud na silay
jurisdiction. So kanang mga City Prosecutors can
only investigate crimes committed in Cebu City.
Wala silay labot sa crimes committed in the
province.
(Just in case you are using an old book)
Before 2005, MTC and MCTC have the power to
conduct preliminary investigation. Ang trabaho
sa Prosecutor’s Office gi bahiin ang taga korte.
Ang MTC ug MCTC rasad. Mao mani siya ang
source sa away sauna sa mga Judges and
prosecutors. Kaniadto, ang mga crimes
committed.. kay lage ang Provincial prosecutor’s
office naa ra sa city. For example, crime na na
commit didto sa Samboan, layo kaayo. Kaniadto,
didto rana nila e-file sa MTC or MCTC kay pwede
man sila maka conduct ug preliminary
investigation sauna. Ang problema lang kay
human mag conduct ug preliminary investigation
ang findings sa Judge e-forward diri sa
Prosecutor’s Office unya e-review lang ug
assistant prosecutor na bag-o pasar. Unya ang
Judge didto nang hugis na. Maihubos ang Judge
uy kay e-reverse. And so e-approve sa provincial
prosecutor, adto rasad e-file didto kay cognizable
sa MTC. Aw, e-dismiss pud kay Akoy ga conduct
ug preliminary investigation ani, unya matod
nako walay crime. Mahimong source sa away.
Unsay nahitabo? Sometime in 2005, the
Supreme Court passed a Circular or an Order
taking away this power to conduct preliminary
investigation. So ang MTC and MCTC kay purely
judicial ra gyud.
Sec. 3. Procedure.– The preliminary
investigation shall be conducted in the
following manner:
(a) The complaint shall state the address
of the respondent and shall be
accompanied by the affidavits of the
complainant and his witnesses, as well as
other supporting documents to establish
probable cause. They shall be in such
number of copies as there are respondents,
plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to
before any prosecutor or government
official authorized to administer oath, or, in
their absence or unavailability, before a
notary public, each of whom must certify
that he personally examined the affiants
and that he is satisfied that they voluntarily
executed and understood their affidavits.
Page | 284

(b) Within ten (10) days after the filing of
the complaint, the investigating officer
shall either dismiss it if he finds no ground
to continue with the investigation, or issue
a subpoena to the respondent attaching to
it a copy of the complaint and its
supporting affidavits and documents.
The respondent shall have the right to
examine the evidence submitted by the
complainant which he may not have been
furnished and to copy them at his expense.
If the evidence is voluminous, the
complainant may be required to specify
those which he intends to present against
the respondent, and these shall be made
available for examination or copying by the
respondent at his expense.
Objects as evidence need not be
furnished a party but shall be made
available for examination, copying, or
photographing at the expense of the
requesting party.
(c) Within ten (10) days from receipt of
the subpoena with the complaint and
supporting affidavits and documents, the
respondent shall submit his counter-
affidavit and that of his witnesses and other
supporting documents relied upon for his
defense. The counter-affidavits shall be
subscribed and sworn to and certified as
provided in paragraph (a) of this section,
with copies thereof furnished by him to the
complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of
a counter-affidavit.
(d) If the respondent cannot be
subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten
(10) day period, the investigating office
shall resolve the complaint based on the
evidence presented by the complainant.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(e) The investigating officer may set a
hearing if there are facts and issues to be
clarified from a party or a witness. The
parties can be present at the hearing but
without the right to examine or cross-
examine. They may, however, submit to the
investigating officer questions which may
be asked to the party or witness concerned.
The hearing shall be held within ten (10)
days from submission of the counter-
affidavits and other documents or from the
expiration of the period for their
submission. It shall be terminated within
five (5) days.
(f) Within ten (10) days after the
investigation, the investigating officer shall
determine whether or not there is sufficient
ground to hold the respondent for trial.
This tells us the procedure in the conduct
of a preliminary investigation. The procedure is
important because take note preliminary
investigation is a matter of right. There could be
a violation of the right of the accused to due
process.
1. A complaint has to be filed before the
prosecutor’s office. Kaning complaint diri, dili na
ang complaint sa civil. Dili pud ni ang complaint
na gi discuss nato gabii na pareho ug itsura sa
information. Kaning complaint gibutang diri this
is simply a letter-complaint addressed to the
City Prosecutor’s Office. Ang imong mga
affidavits imong e-attach didto.
The affidavits shall be subscribed and
sworn to before any prosecutor or government
official authorized to administer oath, or, in their
absence or unavailbality before a notary
public….. sa ato pa kanang notary public dili na
maka file ug affidavit unya e-file didto sa
prosecutor’s office. Unya rana sila pwede maka
sign kung walay fiscal na available.
…each of whom must certify that he
personally examined the affiants and that he is
satisfied that the voluntarily executed and
understood their affidavits. Sa ato pa kung mu
file ka didto sa prosecutor’s office, kinsa man pa
notaryohon nimo? Adto ka sa fiscal.
2. Within 10 days after the filing of the complaint,
e-raffle na siya kung daghan ug fiscal. E-assign
na siya ug investigating prosecutor. And within
10 days, the investigating prosecutor may
dismiss outright the case if he does not find
any evidence. Otherwise, he shall issue
subpoena.
Kaning subpoena na e-issue sa fiscal,
pareha pud ni siya ug summons. An order
requiring subpoena is an order requiring the
respondent to submit his counter-affidavits. So
pareha ni siya ug summons and subpoena. Ang
ato rabang nahibaw-an sa subpoena kanang
ipatawag ka kay ipa testify. Pero kaning subpoena
sa prosecutor’s office, that is equivalent to
summons. An order requiring the respondent to
submit his counter-affidavits and other evidence.
And attached to the subpoena is the letter-
complaint and other evidence submitted by the
complainant.
Object evidence – ang ang imong e-
attach didto sa subpoena. It need not be
furnished a party but shall be made available for
examination, copying, or photographing at the
expense of the requesting party.
3. The respondent has to submit his counter-
affidavit and that of his witnesses and other
supporting documents relied upon for his
defense. Just like the affidavits of the
complainant, the counter-affidavits of the
accused should be subscribed before the public
prosecutor.
Can the respondent file a motion to
dismiss? Motion to dismiss is not allowed before
the prosecutor’s office.
What should the respondent if he can find a
ground to dismiss the case? For example,
prescription. Unsa mana niya na dili man siya ka
Page | 285

file ug motion to dismiss. He has to allege it in his
counter-affidavit.
(comment of transcriber: wala gi mention ni JD
ang letter d sa Section 3)
4. The investigating prosecutor may or may not
conduct a Clarificatory Hearing. If there are
some issues or questions that the investigating
prosecutor wants to be clarified in order for him
to come up with an intelligible resolution of the
case, he may conduct clarificatory hearing.
Take note that in a clarificatory hearing,
there shall be no cross-examination. Only the
investigating prosecutor can ask questions. If the
complainant’s counsel wants to raise questions
on the witness, he has to submit or course-
through his questions to the investigating
prosecutor.
Suppose the investigating prosecutor will
not conduct a clarificatory hearing, is it within his
discretion? Yes. It is not a matter of right. It is a
discretion of the investigating prosecutor to
conduct clarificatory hearing or not.
5. The investigating prosecutor will now make his
Resolution. Dili decision but resolution.
If his Resolution is for filing – dunay
pakapin. Mu buhat pud siya ug information.
If his Resolution is for dismissal –
There is no information.
The Resolution shall be forwarded to the
City or Provincial prosecutor. Pero ang provincial
prosecutor, kung daghan ug fiscals, mag pili ko
ug duha ninyo na himuon nako ug reviewing
prosecutors. Ang ilang mga findings, pwede pud
dili nako e-approve. If I disagree to the findings to
the Assistant Prosecutor, I can assign it to
another prosecutor, not for the conduct of
preliminary investigation, but for the preparation
of another Resolution. Or kung tanaw nako,
important imong kaso, then I will prepare my own
Resolution contrary to your Resolution.
***
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The same procedure pud didto sa
Ombudsman.
What is the remedy of the complainant if the
Resolution is for dismissal?
File a Motion for Reconsideration.
Either Respondent ka, or Complainant. Mao na
ang ready na remedy. Pakapinan nimo ug Motion
for a Division kay usahay ana ibalik rana sa
prosecutor. Aron adto na sa lain na prosecutor.
What about if your Motion for Reconsideration
is denied?
You can file an appeal. If a case is
cognizable by MTC pwede ka sa Regional State
prosecutor. But if cognizable by RTC you can file
directly to the DOJ Secretary. Tawag nila ana kay
Petition for Review, pero dili na pareha sa
Petition for Review didto sa Court of Appeals ha.
Suppose the DOJ Secretary will affirm the
findings of the prosecutor. You are the
respondent, unsay buhaton nimo?
File Petition for Certiorari before the
Court of Appeals on the ground of grave abuse of
discretion. Because the finding of facts of the DOJ
Secretary is final.
Read the ff. cases:
1. Santos vs. GO, October 19, 2005
2. Bautista vs. CA, July 6, 2001
3. Crespo vs. Mogul, 151 S 462, GR. L-53373,
June 30, 1987
4. Cerizo vs. People, June 1, 2011, GR. 185230
Suppose the resolution is for filing, and the
DOJ Secretary reversed resolution of the
prosecutor’s office but the case has already
been filed in court. What will the Justice
Secretary do?
The Justice Secretary reversing the
resolution of the prosecutor’s office will order the
Provincial or City Prosecutor to file a Motion to
Dismiss or Motion to Withdraw the information.
Because the case has already been filed.
Should the court automatically grant the
motion?
NO. In Crespo vs. Mogul, the court has to
make an independent assessment whether or not
to grant the motion to dismiss or withdraw. The
court has to make an independent examination
on the evidence on record whether it is proper or
not to grant the motion because once a case is
filed in court, the discretion to dispose of the
same solely, entirely rests upon the court.
January 11, 2013
So, we will continue our discussion on Rule 112.
The last topic that we discussed was Sec 3. Sec 3
tells us the conduct of Preliminary Investigation
(PI). Pls take note of the procedure of PI. It’s very
easy.
Procedure of PI
Filing of the Complaint (Letter Complaint)
Attached the Aff of your Witnesses and other
docs (ex. Murder attached the Death Cert, in rape
attached her Medical Cert. attached docs that will
prove your case.
Issuance of Subpoena
Take note, Subpoenaangihatagdili Summons. As
what I have said Subpoena has the same effects
of Summons. Subpoena will require the
respondent his Answer or Counter aAff together
with his other docs.
Counter Affidavit
After submission of the Counter Aff of the
Accused then handling prosecutor may or may
not conduct clarificatory hearing.
Clarificatory Hearing: (discretionary on the
part of the Handling Pros.(HP)
If there is clarificatory hearing HP has to make
his RESOLUTION. Not Decision
kayangdecsisionbuhatonnasa Judge.
RESOLUTION
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Resolution would either be DISMISSAL or for
FILING. If for filing HP will file Information not
Complaint. Basta mag agisa fiscal Information
najudtawagana. If it is for dismissal then no
Information. In the resolution it is just a
recommendation. So, sa WHEREFORE sa
Resolution. It is respectfully recommended that
an Info for murder be filed against the accused or
IT is respectfully recommended that a case for
murder be dismissed. Parehasrajud nag pormasa
decision pero to distinguish one another
tawgonug resolution ang decision sa fiscal.
Why it is only recommendatory? It is bec his
decision will still be subject for the approval of
city or provincial pros kana kungdaghansila
unless siyarausa. Kasagaransa city,
kananggagmayng city, usaana head such as in
Talisay, Toledo.
Suppose the respondent cannot be served with
subpoena bec he can no longer be located at his
place or residence.
Paabutonrabajudxanimumotunga?Dili. If he
cannot be served with subpoena, the process
server would write on his note that the accused
cannot be located in his place of residence. Unsa
may himuon? Paabutonrajud to xa?Balikbalikan?
Dili. That means misbatnaxa, HP the case will
resolve the case based on the evidence of the
prosecution alone. Siguradona b judnangaang
case ma file judsa court?
Dilijapun.Tungodkayangprosec will depend on the
evidence presented. You have to examine the
evidence (referring to HP) to determine if there is
PROBABLE CAUSE.
Suppose the respondent has been served with
subpoena, 10 days is given to answer. After the
lapse of 10 days walajudxamitubagiyanggiignore.
What will the Investigating Prosecutor (IP) do?
Iyahabagihaponpaabuton?Dili. After the lapse of
time (10 days) either IP will conduct clarificatory
hearing or he will resolve the case based on the
evidence of the complainant. So, that is the
procedure.
Remember: this is pang technique. Just
because you are given the chance to answer you
will really file your answer. Take note sometimes
it would be wiser not to file counter affidavit,
why? It is bec if you have counter affidavit ur
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defense would be made known to the other party.
That counter affidavit is under oath. This means
that u cannot anymore change you are going to
allege in ur counter affidavit. So ma fixed
naimung defense.
So, if dilikamo submit ug counter affidavit, you
have a leeway. For example, unsa man imung
case, let’s say in murder. So, wala man ka mi file
ug counter affidavit inig file nmusa court either
mo put up kag self- defense or alibi depending on
what has greater weight. For example mi filekag
counter affidavit, mangutanaka, naa bay
makuhanako? As what I have said the moment
you make your counter affidavit and you allege
ur defenses. Your defenses are fixed. U cannot
change it anymore.
Does it mean that if you submit your counter
affidavit madismissang case?
No, most likely HP will just disregard your counter
affidavit. Why man? Tungod what is needed is
probabale cause. Kihakag murder put up kag
defense, do u think ma dismiss nasa fiscal’s
level? Dili. So gikihakag murder submit kag
counter affidavit imung defense self defense. Do
you think that the case file in the prosecutor’s
office be dismissed? Dili. It will surely be filed in
court. Why? It is because what is required in filing
the case in court is a mere probable cause. Has
crime been committed? Yes. Is the respondent
probably guilty? Remember by putting up self
defense, you admitted the act. It’s up to the
respondent now that the killing is justified.
Sometimes it would be more prudent not to
submit a counter affidavit. Minus factor ban anga
di kamofileug counter affidavit? No, because
filing of counter affidavit may be waived, you
may or may not submit your counter affidavit. No
presumption of guilt shall be taken against you.
You get the point? This is an example
ngagamitonnmuangimungutok.
Another example, rape:
If a girl charges you with rape and you file your
counter affidavit and said that it was consensual
that is with her consent. You think that because
you said that the fiscal will dismiss your case?
Dilijudna ma dismiss. Dakokaauug possibility that
the case may be filed in court because what is
required is just a mere probable cause. Is a crime
charged committed? Is the answer is yes go to
the 2nd question is the respondent probabably
guilty? Iyahamanggiangkon, so probably yes. So
he should be held in trial.
Take note of the remedies if you are the
respondent and the resolution is for filing. What
are the remedies if you are the complainant and
the resolution is for dismissal?
As a rule the filing of the case in court by the
prosecutor’s office cannot be restrained by an
injunction or writ of injunction. On the other hand
if it is for dismissal the prosecutor’s office cannot
be compelled to file the case thru mandamus.
But remember there are some/few instances
wherein injunction or mandamus set in.
Let’s go now to Sec 5.
SEC. 5. When warrant of arrest may issue.—
(a) By the Regional Trial Court .—Within ten
(10) days from the filing of the complaint or
information, the judge shall personally
evaluate the resolution of the prosecutor
and its supporting evidence. He may
immediately dismiss the case if the
evidence on record clearly fails to establish
probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a
commitment order if the accused has
already been arrested pursuant to a
warrant issued by the judge who conducted
the preliminary investigation or when the
complaint or information was filed pursuant
to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge
may order the prosecutor to present
additional evidence within five (5) days
from notice and the issue must be resolved
by the court within thirty (30) days from
the filing of the complaint or information.
(b) By the Municipal Trial Court.—When
required pursuant to the second paragraph
of section 1 of this Rule, the preliminary
investigation of cases falling under the
original jurisdiction of the Metropolitan
Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit
Trial Court may be conducted by either the
judge or the prosecutor. When conducted
by the prosecutor, the procedure for the
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issuance of a warrant of arrest by the judge
shall be governed by paragraph (a) of this
section. When the investigation is
conducted by the judge himself, he shall
follow the procedure provided in section 3
of this Rule. If his findings and
recommendations are affirmed by the
provincial or city prosecutor, or by the
Ombudsman or his deputy, and the
corresponding information is filed, he shall
issue a warrant of arrest. However, without
waiting for the conclusion of the investiga-
tion, the judge may issue a warrant of
arrest if he finds after an examination in
writing and under oath of the complainant
and his witnesses in the form of searching
questions and answers, that a probable
cause exists and that there is a necessity of
placing the respondent under immediate
custody in order not to frustrate the ends
of justice.
(c) When warrant of arrest not necessary.—A
warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant
issued by the municipal trial court in accordance
with paragraph (b) of this section, or if the
complaint or information was filed pursuant to
section 7 of this Rule or is for an offense
penalized by fine only. The court shall then
proceed in the exercise of its original jurisdiction.
(6a) WALA NA NI XA. (repealed)
After the filing of the case in court for the reso is
for filing, the court or judge has to examine the
record of the case esp the reso of prosecutor and
other supporting docs. If the court finds probable
cause for the issuance warrant of arrest (WA),
then the court has to issue warrant of arrest. If
the court does not find sufficient evidence to
issue WA the court will have to dismiss the case.
If the court doubts W/N WA be issued the court
may give the prosecutor 5 days to present
additional evidence. After the submission of
addt’l evidence the court still finds no probable
cause for the issuance of WA then dismisses the
case. If he finds now sufficient evidence to issue
WA then he should issue WA.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Take note there are only 3 actions of the court
upon filing of the case in court:
 Issue warrant if it finds probable cause
 Dismiss the case if the judge did not find
any
 Order the prosecutor to submit addt’l
evidence w/n 5 days in case of doubt
Within 30 days he has to decide whether to issue
warrant or not. What is this probable cause we
are talking about? What is the difference of the
probable cause in the prosecutor’s office and the
probable cause in the court?
probable cause Probable cause in the
under prosecutor’s court
office
Probable cause for Probable cause for the
the of filing the case purpose of issuance of
warrant of arrest.
Remember your 1987 Phil Constitution:
Section 2. The right of the people to be
secure in their persons, houses, papers,
and effects against unreasonable searches
and seizures of whatever nature and for
any purpose shall be inviolable, and no
search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
Is there a need for the judge to summon the
witnesses and personally examine them before
issuing WA?
NO. What is the basis for issuance of WA? Under
Sec 5 the court has only to examine the
resolution of the prosecutor and the evidence.
There is no need for him to examine the
witnesses of the prosecution. Accdng to SC what
the Consti underscores is the exclusive and
personal responsibility of the issuing judge in
such determination of probable cause. He may
personally evaluate the resolution and supporting
docs submitted by the prosecutor/ fiscal
regarding the existence of probable cause
and on the basis of such examination he can now
determine whether to issue WA or not.
Remember that issuance of WA is not a
ministerial duty bec the court is required to
determine existence of probable cause, meaning
it is not automatic ngamolusotdaunimungkaso.
Mao naangubangabogadomagdalidalidaunug file
ug Motion to determine the Existence of Probable
Cause unyamo argue daunnaxangawalay
probable cause for the issuance of WA.
Unyakaymaka dismiss man angkorte, so if you
can convince the court that there is no probable
cause, the court now will dismiss the case on the
ground that there is no probable cause for the
issuance of WA. So file a MOTION FOR
DETERMINATION OF Probable CAUSE. Unsa may
ihangyoihangyoniya? Mo arguexangawalay
probable cause unya he will ask that the case be
dismissed. Not motion to quash but MOTION FOR
DETERMINATION OF Probable CAUSE. Actually,
kungimungtinambanon, it is Motion to Dismiss
due to Lack of Probable Cause.
Sec 6: When accused lawfully arrested
without warrant.—When a person is lawfully
arrested without a warrant involving an
offense which requires a preliminary
investigation, the complaint or information
may be filed by a prosecutor without need
of such investigation provided an inquest
has been conducted in accordance with
existing rules. In the absence or
unavailability of an inquest prosecutor, the
complaint may be filed by the offended
party or a peace officer directly with the
proper court on the basis of the affidavit of
the offended party or arresting officer or
person.
Before the complaint or information is
filed, the person arrested may ask for a
preliminary investigation in accordance
with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of
his counsel. Notwithstanding the waiver, he
may apply for bail and the investigation
must be terminated within fifteen (15) days
from its inception.
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After the filing of the complaint or
information in court without a preliminary
investigation, the accused may, within five
(5) days from the time he learns of its
filing, ask for a preliminary investigation
with the same right to adduce evidence in
his defense as provided in this Rule. (7a;
sec. 2, R.A. No. 7438)(As amended by AM
No. 05-8-26-SC)
Sec 6 disregards the issuance of WA by MTC,
duna bay mgakaso cognizable by 1st level courts
that requires P1? Yes. 1 st level courts has
jurisdiction over cases punishable of 6 years. PI is
required on cases with 4-2-1 (penalty). For those
cases wherein PI is required cognizable by 1 st
level court, procedure is the same. Upon filing in
the court, the court will have to determine and
examine the existence of probable cause for the
issuance of WA. If there is probable cause issue
WA if none, dismiss. In case of doubt order the
prosecutor to present addt’l evidence. If despite
submission still judge is not satisfied or he did
not find probable cause, dismiss the case. If he
now finds probable cause, he can now issue WA.
THEREare other instances however, sec 5 (c)
when warrant not necessary WALA NA NA XA
kanang IF the accused is already detention
pursuant to a warrant issued by the municipal
trial court in accordance with paragraph (b) of
this section. Walanan a xa. As what we have said
ang MTC and MCTC can conduct PI before 2005
na.trabahoknasa fiscal ngagihatagsa MTC/MCTC.
But it is no longer applicable.
What are the instances that WA is not necessary?
 When the accused is arrested in flagrante
delicto pursuant to Sec 5, Rule 113
 When the case is filed pursuant to Sec 6
of this Rule, when the accused arrested
without WA when the case is filed in court
there is no need to issue WA. Instead of
issuing WA the court will now issue
Commitment Order.
 When the penalty imposable to the
offense is fine only.
What is Commitment Order?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Dbamo issue ug WA ang court? What is ordered
in the warrant? Ipadakopsapulis. Unya aha man
dad on? After you arrest that person you bring his
body to me. After dakop d pudnapapuy-on sa
court angnadakpan. After service of WA, the
court will issue Commitment Order, meaning in
trust, diadtosaprisuhan. I hereby commit to u. I
hereby entrust to u Juan Dela Cruz until further
ordered by the court.So kungnadakpannatosya
without WA kay in flagrante delicto tuanaxasa
court. What is being issued kay commitment
order.
 When the case is governed by the Rules
on Summary Procedure
Sec 6 this is now when accused is arrested
without warrant under Rule 113, Sec 5. When a
person is arrested without warrant he is not
entitled to PI. Why man?
So, for example a person killed somebody and he
is arrested then and there he is not entitled to PI
because since he is arrested remember ART 125
of RPC? (Refers to reglementary period) 12-18-36
hours. Within that short span of time a case
should be filed in court otherwise the arresting
officer will not just be facing administrative
charge but also criminal charge. So maona within
12-18-36 a case should be filed in court. Kung
hatagannmug PI, imagine 10 days, 10-10-10 a
dakodakona nag silot kung d nmubuhian. If a
person is arrested under VALID WARRANTLESS
ARREST, he is not entitled to PRELIMINARY
INVESTIGATION (PI). Meaning he will not be given
a chance to submit counter affidavit, he will not
be given a chance to answer the complaint.
However, instead of PI he is subjected to
INQUEST PROCEEDINGS.
What is an INQUEST PROCEEDINGS?(INQUEST)
It is an informal inquiry to determine W/N the
arrest is valid. Nganu man d ai? Kay if valid ang
arrest. There is probable cause. To determine
W/N the arrest is valid or lawful. When the
prosecutor determinesxxx. Anghimuonanasa
fiscal tan awonraangmga affidavits sakihanti
kung valid bajudpudang arrest. Mo fall ba under
sec 5, rule 113. Unya he will ask the respondent,
unyaunsa man nibai, tinuodbajudni?
Dali dalion man judnakaydili man ang fiscal ang
ma kiha, kundiangpuliskaymaoangmidakop. Ang
case ifiledaunsakorte.
Purpose of inquest is to determine whether the
arrest is valid or lawful. However, before the filing
of the case in court and IF the respondent asked
for it (PI) and sign a waiver of his right under Art
125, he will be given his PI. Mao nigitawagug
WAIVER. Art 125 gives us right to file a criminal
case if you arrested without warrant and there is
no case directly filed against you. Dugay man
gudang PI maodapat i-waive. With assistance of
lawyer, maonggamitsa PAO. Angiyang number of
days would not be 10 days anymore usually 7
sometimes 5 days angihatagsa
prosecutordependeniya. Padayonsiyang ma priso.
The prosecutor will resolve the case immediately.
Notwithstanding the waiver he may apply for bail
and the case must be terminated within 15 days.
Since he filed a waiver, madugay man ang PI he
has to stay in jail. He can file petition for Bail.
How about if the case has already been filed in
court and he has changed his mind, can he still
ask for PI? YES, he can still ask for PI provided he
will file motion for PI within 5 days after he
learns of the filing.The 5 day period in
unextendible.
Is there still a need to file a waiver for detention
under Art 125? The answer is no more. Why? It is
bec the case is already filed in court. Art 125 is
only applicable when the case is not yet filed in
court.
Pang taktikanasadni:
Since u learned that a person arrested without
warrant can ask for PI if he signs a waiver and
applied for it. You have a client arrested for
murder and caught in flagrante delicto are u
going to advise him to sign a waiver and ask for
PI? Dili. Gamitangutok. Sometimes it is not
advisable to sign a waiver.
So, what will happen if the accused filed a Motion
for Preliminary Investigation?
The court will necessarily grant it and suspend
the proceeding if such is filed within 5 days from
learning of the said filing. The court will require
prosecutor’s office to conduct PI. ABSENCE OF PI
WILL NOT INVALIDATE THE info, IT WILL NOT
AFFECT THE JURISDICTION OF COURT.
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Suppose a person is arrested without warrant.
But the arrest would not fall within the
circumstances under a valid warrantless arrest,
sec 5, rule 113. What should the prosecutor do?
On his inquest, nakitaniyadili man d ai valid
warrantless arrest kaya ng crime na murder was
committed last month pa.
The arrest is not valid. The fiscal upon
determination the invalidity of arrest, he will have
to release the respondent and subject the case to
regular PI. The respondent will now be required to
submit his counter affidavits etc, etc.
Unsa man ning regular PI? There is now a
complaint, the respondent is required to submit
his counter affidavit after PI IF the resolution is
for the issuance of WA unya nag
katonggibuhianpangitaonna sad samgapulis.
Inquest proceeding is a summary proceeding to
determine whether the arrest is valid.
Sec 7: Records.—(a) Records
supporting the information or complaint.—
An information or complaint filed in court
shall be supported by the affidavits and
counter-affidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution on
the case.
(b) Record of preliminary investigation.
—The record of the preliminary
investigation, whether conducted by a
judge or a prosecutor, shall not form part of
the record of the case. However, the court,
on its own initiative or on motion of any
party, may order the production of the
record or any of its part when necessary in
the resolution of the case or any incident
therein, or when it is to be introduced as an
evidence in the case by the requesting
party. (8a)
Record of the PI will not form part of the record of
the case. What is this record? If the HP conducted
clarificatory hearing, kanang TSN the one
recorded will not form part of the record only the
affidavits. However if the transcript of the steno
notes are needed during the trial of the case then
it may be required to be submitted in court.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec 8 regards to cases that does not require PI.
Sec 8: Cases not requiring a
preliminary investigation nor covered by
the Rule on Summary Procedure.—
(a) If filed with the prosecutor.
—If the complaint is filed directly with
the prosecutor involving an offense
punishable by imprisonment of less
than four (4) years, two (2) months and
one (1) day, the procedure outlined in
section 3(a) of this Rule shall be
observed. The prosecutor shall act on
the complaint based on the
affidavits and other supporting doc
uments submitted by the
complainant within ten (10) days from
its filing.
(b) If filed with the Municipal
Trial Court.— If the complaint or
information is filed with the Municipal
Trial Court or Municipal Circuit Trial
Court for an offense covered by this
section, the procedure in section 3(a)
of this Rule shall be observed. If within
ten (10) days after the filing of the
complaint or information, the
judge finds no probable cause after
personally evaluating the evidence, or
after personally examining in writing
and under oath the complainant and
his witnesses in the form of searching
questions and answers, he shall
dismiss the same. He may, however,
require the submission of additional
evidence, within ten (10) days from
notice, to determine further the
existence of probable cause. If the
judge still finds no probable cause
despite the additional evidence, he
shall, within ten (10) days from its
submission or expiration of said period,
dismiss the case. When he finds
probable cause, he shall issue a
warrant of arrest, or a commitment
order if the accused had already been
arrested, and hold him for trial.
However, if the judge is satisfied that
there is no necessity for placing the
accused under custody, he may issue
summons instead of a warrant of
arrest. (9a)
Now, even those cases that do not require PI they
can be file in the prosecutor’s office. So, to make
it simple whether the case requires PI or not it
can be filed with the prosecutor’s office. If it does
not require PI it can be file directly with the
MTC.Unya if the same is file with the prosecutor’s
office it is up to the prosecutor to decide whether
to conduct PI or not. Now if it is filed in the
prosecutor’s office and they conducted PI it has
still the same procedure and if filed in court the
court will still issue WA. Now, under D if the case
is filed under MTC/MCTC who will sign? It could be
the private complainant himself, the police officer
or it could be the public officer charged with
enforcement of the law violated. Dili man na
fiscal dilijudna information. It is a complaint. If
filed with the MTC/ MCTC directly take note
MTC/MCTC only, if the judge wants to issue WA
this time he has to conduct exam upon the
witnesses of the complainant. The judge has to
conduct personally before issuance of WA
because it did not pass thru the prosecutor’s
office; he has no resolution to refer to. So he has
to conduct examination of the Witnesses of the
complainant. MTC/ MCTC judges also have an
option not to issue WA. The court upon
evaluation of the case may opt not to issue any
WA. Kay saiyang tan aw there is no need to issue
WA saiyang tan aw dli mo escape iyang accused.
Parehosa summary procedure.
Another instance where the court may not issue
WA is when the accused is arrested without any
warrant. He should issue Commitment Order
instead.
Q: duna bay posibilidadngaang us aka kasobsan
nag require ug PI cognizable sa 1st level court
pwedeba ma directaug file sa MTC or MCTC?
A: Pwede, kanangpananglitan direct assault or
attempted homicide max penalty is 6 years. If
the accused has been arrested without WA
meaning he is not entitled to PI pwede nag case
iderektag file ddtosa court by the police. If before
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arraignment the accused asked for PI then he
should be granted within 5 days after learning.
Motion for PI must be done within 5 days after
learning but before arraignment because if he
enters arraignment before filing the motion the
same should be considered waived.
Let’s go now to ARREST.
RULE 113
ARREST
SECTION 1. Definition of arrest.—Arrest is
the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense.
What do u mean by arrest? Is the taking of a
person into custody in order for him to be bound
to answer in a commission of the offense?
Remember that one way of getting a person into
custody is arrest and the other is voluntary
appearance in court.
Remember as we have said earlier if the accused
has been arrested the court shall issue
Commitment Order.
How arrest is made?
SEC. 2. Arrest; how made.—An arrest is
made by an actual restraint of a person to
be arrested, or by his submission to the
custody of the person making the arrest.
No violence or unnecessary force shall
be used in making an arrest. The person
arrested shall not be subject to a greater
restraint than is necessary for his
detention.
By actual restraint of his person or by his
submission to the arresting officer, is force
necessary? Only unnecessary force but if the
accused resist, the arresting officers are
authorized to use appropriate force to restrain
him. Arrest can be made only if there is WA, WA
needs to be valid. It must only be issued on the
basis of probable cause. That’s why the judge
needs to read the resolution for the basis of the
probable cause. Another WA must specify the
name of the person to be arrested, it must clear.
There was one case wherein a governor sumwer
in Mindanao was ambushed saiyang ihap2x there
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
were about 60 persons, out of 60 who ambushed
him only 14 are named so when he filed the case
for multiple murder (bodyguards dead) he filed a
case against the 14 named plus 50 John Does.
The court issued WA against the 14 who were
identified and to the 50 John Does.
Unyadihaygidakopngamatud pa usasamga John
Does, that person questioned the validity of the
warrant, was the WA issued to the 14 named and
the 50 John Does valid? According to SC, as
regards to 14, the WA is valid but as to 50 John
Does the arrest was
invalid.Pwederakamongalanug John Doe sa Arrest
provided there is a particular description (alum,
any identifying marks that will distinguish him)
otherwise considered as general warrant.
 Pangandaman, et al vsCasar 159 SCRA
599
SEC. 3. Duty of arresting officer.—It shall be
the duty of the officer executing the
warrant to arrest the accused and deliver
him to the nearest police station or jail
without unnecessary delay.
Human dakopadtodaunsa police station dli ddto
dad on sa hospital, si Estrada ray gapausoana.
Pag I arrest adtoikargasa patrol car dilisa wheel
chair.Didtodayun dad on saprisohan.
SEC. 4. Execution of warrant.—The head of
the office to whom the warrant of arrest
was delivered for execution shall cause the
warrant to be executed within ten (10) days
from its receipt. Within ten (10) days after
the expiration of the period, the officer to
whom it was assigned for execution shall
make a report to the judge who issued the
warrant. In case of his failure to execute
the warrant, he shall state the reasons
therefor.
The warrant shall be executed or implemented by
the head of the office to which the warrant is
delivered.
Lifetime of WA- NO RXPIRATION, it will only
expire if the same has been served, meaning
nadakpanna or the same should be quashed or
lifted by the issuing court.
…pwede ra nang John Doe pero dunay
description. Duna ban a siyay identifying marks
nga maka distinguish him from another? You try
to read this case of Pangandaman et al. vs.
Casar 159 SCRA 599.
Section 3. Duty of arresting officer. — It
shall be the duty of the officer executing
the warrant to arrest the accused and to
deliver him to the nearest police station or
jail without unnecessary delay.
One the subject of the warrant is
arrested, the arrested person shall be brought or
to be delivered to the nearest police station of jail
without unnecessary delay.
Human ug dakup, dalhon jud na siya sa
police station. Dili dalhon adto sa hospital.
Kanang Hospital Arrest wala na na balaod. Si
Estrada ray nagpa-uso ana. So kung tawo
dakpon, ikarga na siya didto sa patrol car dili
ngadto sa wheelchair.  Dili wheelchair ang
kargahan ana kundi patrol car  Dalhon dayon na
didto sa prisohan. Pero kuyaw na man atong style
karon. Kita ko atong Morato nga nadakpan atong
iyang plunder nagsuon-suon sad ni Arroyo   
si Arroyo sad nagpasiuna anang wheelchair dah.
Si Corona pod abtik kaayo ni gawas sa Senate
Session Hall unya pagbalik  nag wheelchair na

Section 4. Execution of warrant. — The
head of the office to whom the warrant of
arrest was delivered for execution shall
cause the warrant to be executed within
ten (10) days from its receipt. Within ten
(10) days after the expiration of the period,
the officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant. In case of his
failure to execute the warrant, he shall
state the reasons therefor.
The warrant shall be executed or
implemented or enforced by the head of office to
the warrant of arrest was delivered and the same
shall be executed within ten (10) days from
receipt.
Lifetime of a Warrant of Arrest:
Pila may expiration anang warrant of
arrest? How many should a warrant of arrest will
expire?
Kanang warrant of arrest wala kana siyay
expiration. It will only expire if the same has been
Page | 291

served (meaning nadakpan na) or the same has
been lifted or quashed by the Court.
Pero ang mga pulis ang ilang buhaton
kung dili gani nila madakpan dayon ang kadtong
subject sa warrant, ilang buhaton ilang i-uli didto
sa court. That should not be the case. Why?
Because under Sec. 4 the law enforcer who is
authorized or who executed the warrant of arrest
is only required to make a report to the judge
who issued the warrant. Dili i-uli ang warrant
kundi magbuhat ra siya ug report whether or not
the warrant has been served. Kung na serve or
kung wala nadakpan ang kadtong subject ngano
man nga wala nadakpan?
For example, inig adto didto sa lugar nga
gibutang didto sa warrant of arrest if the subject
person is no longer around then the police will
have to make a report that the subject cannot be
located or cannot anymore be found at the place
mentioned in the warrant of arrest. But he should
NOT return the warrant of arrest.
Suppose to be dili i-uli but sa practice sa
kadaghanan sa mga police, i-uli didto sa court.
Mao nang ang korte pod mo issue nalang pod ug
kanang gitawag ug Alias Warrant. Pero suppose
to be kanang warrant of arrest DILI KANA MO
EXPIRE.
Q: Suppose the police enforced or serve the
warrant of arrest but the person subject to the
warrant could not be found at his residence. So
he returned to the police station. However, shall
we say…kanang mga police duna man nay
gitawag nga Warrant Server. Suppose the warrant
server serve the warrant but he could not fine
the subject. He returned to the police station.
When he was already off duty and while on the
way home, he saw the subject person but the
warrant of arrest was not anymore with him
because he left it in the police station. Can he
arrest that person subject of the warrant?
A: YES. A police officer can arrest a person
even if the warrant of arrest is not with him. Of
course if that arrested person would ask the
warrant of arrest, then he should show a copy of
the warrant of arrest.
Dunay kaso. Ang nahitabo niini, kay
lagi…as what we have said police men suppose
to be they should not return the warrant of arrest
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
in court until and unless the subject is arrested.
Na lagi sagad sa mga pulis wala man makabalo
ani mao to nga sagad lagi nga kung dili nila ma
serve kay dili nila makit-an ilang i-return didto sa
court ug ilang butangan didto ug note: the
subject parson could not anymore be located at
the given address unya butangan na didto ug
according to the neighbors he went to Mindanao
without specific address. Unya the court will
usually issue an alias warrant. Unya kanang alias
warrant, ang pagtuo sa mga pulis mao na ang dili
i-return. If wala gani nay word nga “alias” i-return
na nila.
Now here comes a case wherein the
warrant of arrest against the accused was served
at his residence but he cannot be located. Tingali
nag TNT. And so, the warrant of arrest was
returned by the police to the court. But tingali
tungod sa kadaghan ug kaso, ang korte
nakalimot pod ug issue ug alias warrant. Karon
kay nakit-an man tong subject sa warrant so
gidakop sa pulis. Gipangitaan – “asa man imong
warrant?” walay warrant ikapakita kay gi-uli
naman didto sa court unya wala sad alias warrant
nga na issue. Is the arrest valid? According to the
SC: the arrest was VALID even if the warrant of
arrest issued against the accused was returned to
the court by the police and the court did not
issue alias warrant. (People vs. Hevera 349
SCRA 513.) (?)
Section 5. Arrest without warrant; when
lawful. — A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to
be arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to
be arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
while being transferred from one
confinement to another.
In cases falling under paragraph (a) and (b)
above, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail and shall be
proceeded against in accordance with
section 7 of Rule 112.
Now in Sec. 5 as we have mentioned
earlier, this section is about circumstances
wherein a private person or a peace officer can
arrest another person without a warrant. There
are only three (3) circumstances. Take note ha
even a private person can effect arrest.
In other words, you can arrest a person
validly without warrant. Saato pa exception to
the rule ni kay general rule is a person could only
be arrested by virtue of a warrant of arrest. So
exceptions ni:
a. When the person to be arrested has
committed a crime or is actually
committing a crime, or is attempting
to commit a crime in the presence in
the arresting officer.
So in other words, the arresting officer
here – the person who is going to make an arrest
is present when the person to be arrested has
committed a crime, or is actually committing a
crime, or attempting to commit a crime.
What do you mean by attempting to commit
a crime?
You remember the different stages of a
crime: attempted, frustrated and the
consummated stage.
In other words, in order that the arrest
would be valid, the person to be arrested must
have committed an OVER ACT and that overt act
must have at least constitute an attempted stage
of a crime.
So pananglitan, a person is just walking
in the street and he is arrested. Is the arrest
valid? NO because walking down the street
although it is an over act but it does not
constitute any crime nor does it constitute an
attempted stage of any crime.
In one case, wherein one person in
Manila was just holding his stomach and looking
Page | 292

from left to right and the police officer arrested
him. He was arrested and taken from his
possession was a fire arm. Is the arrest valid? NO
because holding ones stomach and looking to his
left and right is not considered a crime or an
attempted stage of a crime. So, kinahanglan nga
naka commit jud siya ug crime even an
attempted stage of a crime.
So for example, a police officer heard an
explosion. And according to his experience, to his
mind it was a gun burst. An experienced officer
can distinguish a gun burst from a fire cracker. So
for example upon hearing an explosion and to his
mind it was a gun burst, at once he proceeded.
Unya he arrested a person whom he believed
was the one who fired the firearm. Is the arrest
valid? YES because the crime is considered to
have been committed in his presence.
READ: Padilla vs. CA 269 SCRA 402 and
People vs. Evaristo 261 SCRA 431.
b. When an offense has just been
committed, and he has probable
cause to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it.
Letter b mao ni ang pinaka controversial.
Mao ni ang provision nga source sa daghang kaso
nga nahiabot ngadto sa SC u gang gilalisan ra
gyud kay kung valid ba ang arrest or dili.
Why is it important to determine whether
the warrantless arrest is valid or not?
Because it will affect the admissibility of
evidence.
If you are arrested without warrant and
the arrest is valid, any object taken from your
body or any evidence is admissible in evidence
because it is considered as a search incidental to
lawful arrest and that is admissible.
But if the arrest is illegal, any evidence
obtained shall be inadmissible in evidence.
Mao nang importante…crucial kaayo
nang pag determine kung valid ba or dili ang
arrest. Usually it would determine whether or not
be convicted of the crime charged. So importante
jud kaayo ning Sec. 5. Unya ang pinakadaghan
jud nga kaso mao jud ni ang naa sa letter b 
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
when an offense has just been committed, and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it.
Ang kaning sa letter a, ang arresting
officer is present. Wala kaayo ni kontrobersya kay
present man siya. Kita man siya gyud.
Ang problema mao ning naa sa letter b.
nganu man? Tungod kay kaning naa sa letter b
ang arresting officer wala diha wala siya diha
pero allowed gihapon siya nga mo arrest even
without warrant provided that he has probable
cause based on personal knowledge. Meaning
duna siyay proweba. Aduna siyay ebidensya ug
kanang ebidensya dapat na acquire na niya
based on personal knowledge and facts and
circumstances that lead him to believe that the
person to be arrested has probably committed a
crime.
For example, a person was stabbed.
And since the police station is shall we say 50
meters away from the place of incident,
gidunggab siya unya nagpuyos pa siya sa iyang
tina-I nidagan siya didto sa police station. “Sir!
Sir! Tabang sir! Gidunggab ko!”  So mao to,
gitapukan siya sa mga pulis mitug-an siya sa
ngalan san aka dunggab niya. Ang ubang pulis mi
dala niya didto sa hospital u gang uban mi
responde didto sa lugar. For example kadtong
pulis nga ni tabang niya ug mi adto didto sa lugar
nakit-an tong tao nga nakadunggab. Pwede ba
nila dakpon nga wala man sila didto
pagkahitabo? YES, pwede. Unsa may basihan?
Probable cause. Asa man gikan ang probale
cause? Based on personal knowledge on facts
and circumstance.
Kadtong didto sa police station nakakita
sila nga gidunggab ug nagpuyos sa tina-i. igo nab
a to siya nga probable cause that a crime has
ben committed and that the person to be
arrested has probably committed it? YES.
Another Example, a woman nidagan
siya didto sa police station and she alleged that
she was raped. Nagkagisi pa intawon ang iyang
sinina. Nagka buling pa. nagka samad2x pa.
Whould that constitute probable cause to arrest
the perpetrator? YES.
Pero kinahanglan nga the crime has just
been committed. Take note nga walay specific
period kanus-a ka maka ingon nga the crime has
just been committed. No specific period between
the actual commission and the actual arrest. So
naa ran a sa judgement. Dili pod consistent ang
SC ani.
In one case, (JD: I left my citation ani
dah) the police received a report regarding the
death of a person a day after the incident. They
arrested the assailant. Now, the legality of the
arrest of that person was questioned. According
to the SC, that was ILLEGAL.
In one case, the policemen arrested the
assailant 14 days after the incident. And the SC
ruled that the arrest was VALID as it would fall
under letter b that the crime has just been
committed.
That is just to show to you that the SC is
NOT CONSISTENT. There is no specific period.
Pero aron gyud seguro, kadtong akong example
ninyo wala toy question. Kita pa gud ka nga
nagka dugo. Sa imong assessment, would it pass
or say that the crime has just been committed?
Aw kana, klaro gyud na. Nagdagan, naghangak
ug naggunit sa iyang samad. Unya naa nay
probable cause nga madakop siya? Yes.
Take Note: there must be a crime
committed and IT HAS JUST BEEN COMMITTED.
Kung walay crime aw there is no basis for the
arrest. Another nga imong tan-awon is that the
arresting officer must have PROBABLE CAUSE
AND THE PROBABLE CAUSE MUST BE BASED ON
PERSONAL KNOWLEDGE OF FACTS AND
CIRCUMSTANCE.
Gihatagan na ta mo ug example. Kadtong
pulis nga maoy nag atobang sa biktima aw aduna
to siyay probable cause. Pero ang pulis nga wala
diha aw dili to siya kay wala man to siyay
personal knowledge nga mo constitute ug
probale cause.
c. A person who escaped from a penal
establishment or where he is serving
final judgment or is temporarily
confinement can be arrested without
any warrant.
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NOTE: Now, Sec. 5 on Rule 113 are
circumstances where valid warrantless arrest can
be made and take note of this because this will
connect with the inquest proceedings. If a person
was arrested under the circumstance falling
under Sec. 5, he is NOT ENTITLED TO
PRELIMINARY INVESTIGATION BUT HE IS
SUBJECTED TO AN INQUEST PROCEEDING.
Section 6. Time of making arrest. — An
arrest may be made on any day and at any
time of the day or night.
Section 7. Method of arrest by officer by
virtue of warrant. — When making an arrest
by virtue of a warrant, the officer shall
inform the person to be arrested of the
cause of the arrest and of the fact that a
warrant has been issued for his arrest,
except when he flees or forcibly resists
before the officer has opportunity to so
inform him, or when the giving of such
information will imperil the arrest. The
officer need not have the warrant in his
possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable.
The arresting officer shall inform the
person to be arrested if he has a chance to
inform him.
For example: Nag-gukod siya.pagkakita
niya ni dagan dayon. Nag-gukod ka (while
naghangak) “plz take note that you are arrested
for committing a crime…”    e-inform pa na
nimo? Dili na…except when he flees or forcibly
resists (samtang siya nag iskrima2x didto iya pa
bang e-inforn regarding the arrest? Dili na.) or
when the giving of such information will
imperil the arrest.
Section 8. Method of arrest by officer
without warrant. — When making an arrest
without a warrant, the officer shall inform
the person to be arrested of his authority
and the cause of the arrest, unless the
latter is either engaged in the commission
of an offense, is pursued immediately after
its commission, has escaped, flees or
forcibly resists before the officer has
opportunity so to inform him, or when the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
giving of such information will imperil the
arrest.
The arresting officer will inform the
person to be arrested of his authority and the
cause of the arrest. Except when he flees or
forcibly resists or when the giving of such
information will imperil the arrest.
Same ra gihapon.
Section 9. Method of arrest by private
person. — When making an arrest, a private
person shall inform the person to be
arrested of the intention to arrest him and
cause of the arrest, unless the latter is
either engaged in the commission of an
offense, is pursued immediately after its
commission, or has escaped, flees, or
forcibly resists before the person making
the arrest has opportunity to so inform him,
or when the giving of such information will
imperil the arrest.
Same.
Section 10. Officer may summon
assistance. — An officer making a lawful
arrest may orally summon as many persons
as he deems necessary to assist him in
effecting the arrest. Every person so
summoned by an officer shall assist him in
effecting the arrest when he can render
such assistance without detriment to
himself.
An officer making a lawful arrest, if he
needs assistance, he can ask assistance from the
persons near him as many persons he deems
necessary. Pwede siya mangayo ug assistance.
Nganung mangayo man siya ug
assistance? In order to assist him is effecting the
arrest if it is necessary.
Section 11. Right of officer to break into
building or enclosure. — An officer, in order
to make an arrest either by virtue of a
warrant, or without a warrant as provided
in section 5, may break into any building or
enclosure where the person to be arrested
is or is reasonably believed to be, if he is
refused admittance thereto, after
announcing his authority and purpose.
What about if the person making the
arrest whether with warrant or without warrant is
refused entrance by the person to be arrested?
Then he can break into the building. Ang uban
sad nga mga pulis, mo sulod ra sila sa building
kung aduna silay warrant. Pero kung gigukod gani
nila…pak! Tulisan gigukod! Ug mo sulod na gani
to ug balay aw dili na sila kay mahadlok man sila
ug trespassing. Ikiha unya tau g trespass to
dwelling. Aw dili na coz under Sec. 11, with or
without warrant they have the right to break into
especially in Hot Pursuit.
Kadto diay sa paragraph b, mao to siyay
Hot Pursuit. Kadtong sa par. b ganina kastong
sa Rule 113 Sec.5 (b). Nganong gitawag man na
ug Hot Pursuit? Kay init pa man ang crime…init
pa.
Section 12. Right to break out from
building or enclosure. — Whenever an
officer has entered the building or
enclosure in accordance with the preceding
section, he may break out therefrom when
necessary to liberate himself.
What about if the arresting officer is
allowed to enter but the doors of the building
were podlock after he entered the building? Then
he can break out.
Section 13. Arrest after escape or rescue.
— If a person lawfully arrested escapes or is
rescued, any person may immediately
pursue or retake him without a warrant at
any time and in any place within the
Philippines.
If a person lawfully arrested escapes or is
rescued then he can be arrested again.
Section 14. Right of attorney or relative
to visit person arrested. — Any member of
the Philippine Bar shall, at the request of
the person arrested or of another acting in
his behalf, have the right to visit and confer
privately with such person in the jail or any
other place of custody at any hour of the
day or night. Subject to reasonable
regulations, a relative of the person
arrested can also exercise the same right.
This refers to the right of the arrested
person to be visited by his counsel or by any
member of the Philippine Bar at any hour of the
day or night.
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However as regarding to the relatives,
the relatives can visit the arrested person subject
to reasonable regulation.
Regarding more rights of a person
arrested, you read RA 7438.
RULE 114
BAIL
Section 1. Bail defined. — Bail is the
security given for the release of a person in
custody of the law, furnished by him or a
bondsman, to guarantee his appearance
before any court as required under the
conditions hereinafter specified. Bail may
be given in the form of corporate surety,
property bond, cash deposit, or
recognizance.
Once a person is arrested, kung ikaw ang
counsel unsa may buhaton nimo kung ang imong
client na priso? Mangita jud ka ug paagi nga
makagawas na siya kay kung makagawas na siya
mo ingon jud na siya nga maayong laki ka.
After a person is arrested, one way to
release him from jail is to put up a bail.
What do you mean by Bail?
Bail – is the security given for the
release of person in custody of the law, furnished
by him or a bondsman, to guarantee his
appearance before any court as required.
Meaning to say, kanang bail mao nay
pasalig nimo nga dili ka mo iskapo. Pareho ra gud
na g nay kay classmate. “bay, palihug ra gud ko
beh ayaw ni palingkuri.” “Mo balik man kaha ka?”
“Mo balik ko. Ibilin lang nako ni akong bag nimo.”
So kanang bag niya mao nay pasalig nga mo
balik jud na siya. Mao ra pod na siya sa bail a
security given for the release of a person in
custody of the law.
Take note: that ONLY A PERSON WHO IS
ALREADY IN CUSTODY OF THE LAW is allowed to
put up bail. Meaning to say, one cannot put up
bail if he is not yet in custody or he is not yet
detained.
There was an instance wherein a judge
was disciplined by the SC. Why? Because he
approved the bail of the accused even if the
accused was not brought to his court. Ang
nahitabo niini, ang kadtong akosado gi kiha ug…I
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
think gamay ra gud nga kaso cognizable sa MTC.
Unya kana man gud kihante, ganahan gyud na
siya makakita nga ang iyang gikiha ma priso. So
nag atang jud to siya nga madakpan gyud to
siya. Pero ang problema lang kay naka pyansa
dayon. Unya nganong na disiplina man ang
judge? MTC ra man ang kaso so naa jud siyay
right to put up bail. But the problem is, before
approving the bail (coz bail must be approved…
coz the judge must issue release order), the
judge must see to it that the person who is going
to put up bail (accused) must be already under
detention.
The problem here is that the judge before
approving the bail was not there. Only his wife is
present. Only his wife went to court. Why? where
is the accused? The accused is attending his
classes in law in one of the law schools…dili lang
nuon San Jose  and when the private
complainant learned about it, the complainant
file a case against the judge who approve the bail
even if the accused was not detaine. Hence, the
SC disciplined the judge.
Take Note: bail will only be granted or
approved if the accused was already in custody
of the law. If he is not yet in custody of the law,
then he cannot post bail.
Kay ngano man nga mo pyansa man siya
nga wala pa man siya na priso?
Person in Custody of the Law:
Kanus-a man ka makaingon nga the
person in already in custody of the law? It could
be:
 Physical / actual custody; or
 Constructive custody.
Physical / actual custody meaning tua gidako na
gyud siya. Napiroso na jud siya.
Unsa man ning constructive custody?
Now here’s a case.
There in one case wherein the accused
was arrested when the accused was admitted in
the hospital. Didto siya gi serve ug warrant didto
sa hospital. Nan lagi kay nahospital man siya,
nagduhaduha ang mga pulis dala niya didto sa
prisohan kay basin mamatay unya nuon na. So,
ang gibuhat sa mga pulis gi gwardyahan siya
didto sa hospital kay huwaton nga mayo siya or
ma release siya. Now, the accused while in the
hospital, because the charge to him is bailable,
wanted to posted bail but the prosecution
questioned it. Ingon ang prosecution: “nganong
mo post man ka ug bail nga wala pa man ka sa
prisohan. Adto sa sa prisohan usa ka mo post ug
bail.” Should the accused be allowed to post bail?
Could you consider the accused in the hospital
under custody? According to the SC, YES.
Although he is not in jail, the accused is
considered under constructive custody under the
law. Constructive custody. That is the ruling of
the SC in the case of Padiranga vs. CA, 47
SCRA 741.
Kinds of Bails / How is Bail Given?
1. Corporate surety
Dunay mga kompaniya nga ang ilang
negosyo kanang pag post ug bail. Nagtuo ko
sauna nga ang kadto jud kompanya ang mo
hatag didto sa korte. Dili diay. Pangalan ra nila.
Ilang rang ngan nga inkaso ug mo takas ni, mo
bayad sila sa pyansa/mo bayad mi anang
amount. Unya kadtong accused mo bayad ngadto
sa surety company sa paggamit sa ilang
pangalan.
2. Property Bond
So if dili ka ka-post sa surety but naa kay
property, you can put up property bond. You have
to show your title to the court or your tax
declaration unya at the back of the title or tax
declaration it shall be annonated that such
property has been used as a bond.
3. Cash Deposits
Mao ni pinaka sayon. For wxample the
bail nond is 40,000 then you bring 40,000 to the
clerk of court and the same shall be deposited
there. Of course dili to ipundo didto sa korte kay
daghang kwarata didto. E-deposit pod to didto sa
banko. And what ever happened to the case
whether you are convicted or not the same shall
be return.
4. Recognizance
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
This is commonly known as “ROR” –
Release On Recognizance.
Recognizance is simply a promise or
undertaking that the accused will present himself
whenever the court requires it. It could be the
accused himself or any responsible person in the
community – usually mga Barangay officials.
But release in recognizance is not
available in all cases. Naka commit ka ug murder.
Pwede ka e-release ROR? DILI. It is only available
usually in minor cases and if there is a law
specifically providing that the accused be
released on recognizance. Binsan unsa ka gamay
anang kaso pero ug walay balood nga nagaingon
nga pwede ka e-release on recognizance, dili
pwede. There must be a law allowing the accused
to be released on recognizance.
General Rule: Only the court can grant bail.
Exceptions:
 On deportation proceedings against an
alien, the BID Commissioner has the
discretion to grant bail. The court of
justice do not have the power to grant
bail as regards a deportation
proceedings. Harvey Et. al vs.
Defensor – Santiago 162 SCRA 840
 Also, right to bail is available in
extradition proceedings. Hongkong vs.
Olalia Jr. 521 SCRA 470.
What about military officers who are charge
under the Articles of War?
Kanang mga military kung maka-commit
sila ug crimes unya related sa ilang performance
sa ilang function, pwede na sila ma charge sa
Civil court ug pwede sad na sila ma charge sa
ilang gitawag nga Court Martial.
Q: If they are charge sa ilang Court Martial,
are they entitled to bail? Is a military officer
entiled to a right to bail?
A: Look at the case of Comindador vs.
Devilla 200 SCRA 80. You try to look for the
answer of that question.
Take Note: Unya remember also the
provision of the Constitution that right to bail is
available even if the issuance of the Writ of
Habeas Corpus is suspended.
COMMENDADOR VS.
DE VILLA [200 SCRA 80; G.R.
NO. 93177; 2 AUG 1991
Facts: The petitioners in G.R.
Nos. 93177 and 96948 who are
officers of the AFP were directed
to appear in person before the
Pre-Trial Investigating Officers
for the alleged participation the
failed coup on December 1 to 9,
1989. Petitioners now claim that
there was no pre-trial
investigation of the charges as
mandated by Article of War 71.
A motion for dismissal was
denied. Now, their motion for
reconsideration. Alleging denial
of due process.
In G.R. No. 95020, Ltc Jacinto
Ligot applied for bail on June 5,
1990, but the application was
denied by GCM No.14. He filed
with the RTC a petition for
certiorari and mandamus with
prayer for provisional liberty and
a writ of preliminary injunction.
Judge of GCM then granted the
provisional liberty. However he
was not released immediately.
The RTC now declared that even
military men facing court martial
proceedings can avail the right
to bail.
The private respondents in G.R.
No. 97454 filed with SC a
petition for habeas corpus on
the ground that they were being
detained in Camp Crame
without charges. The petition
was referred to RTC. Finding
after hearing that no formal
charges had been filed against
the petitioners after more than a
year after their arrest, the trial
court ordered their release.
Issues:(1) Whether or Not there
was a denial of due process.
(2) Whether or not there
was a violation of the accused
right to bail.
Held:
NO denial of due process.
Petitioners were given several
opportunities to present their
side at the pre-trial
investigation, first at the
scheduled hearing of February
12, 1990, and then again after
the denial of their motion of
February 21, 1990, when they
were given until March 7, 1990,
to submit their counter-
affidavits. On that date, they
filed instead a verbal motion for
reconsideration which they were
again asked to submit in writing.
They had been expressly warned
in the subpoena that "failure to
submit counter-affidavits on the
date specified shall be deemed
a waiver of their right to submit
controverting evidence."
Petitioners have a right to pre-
emptory challenge. (Right to
challenge validity of members of
G/SCM)
It is argued that since the
private respondents are officers
of the Armed Forces accused of
violations of the Articles of War,
the respondent courts have no
authority to order their release
and otherwise interfere with the
court-martial proceedings. This
is without merit. * The Regional
Trial Court has concurrent
jurisdiction with the Court of
Appeals and the Supreme Court
over petitions for certiorari,
prohibition or mandamus
against inferior courts and other
bodies and on petitions for
habeas corpus and quo
warranto.
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The right to bail invoked by the
private respondents has
traditionally not been
recognized and is not available
in the military, as an exception
to the general rule embodied in
the Bill of Rights. The right to a
speedy trial is given more
emphasis in the military where
the right to bail does not exist.
On the contention that they had
not been charged after more
than one year from their arrest,
there was substantial
compliance with the
requirements of due process and
the right to a speedy trial. The
AFP Special Investigating
Committee was able to
complete the pre-charge
investigation only after one year
because hundreds of officers
and thousands of enlisted men
were involved in the failed coup.
Accordingly, in G.R. No. 93177,
the petition is dismissed for lack
of merit. In G.R. No. 96948, the
petition is granted, and the
respondents are directed to
allow the petitioners to exercise
the right of peremptory
challenge under article 18 of the
articles of war. In G.R. Nos.
95020 and 97454, the petitions
are also granted, and the orders
of the respondent courts for the
release of the private
respondents are hereby
reversed and set aside. No
costs.
In your book, there is that case of (if you
are using the book if Regalado) Sirapio vs,
Sandiganbayan ,Jan. 28, 2003 you read that
case.
Conditions of the Granting of the Bail:
The accused must appear in court whenever
required by the court or these rules.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Instance where Presence of Accused
Necessary in criminal cases:
1. Arraignment
2. Trial for Identification of witnesses
3. During promulgation of decision
Section 2. Conditions of the bail;
requirements. — All kinds of bail are
subject to the following conditions:
(a) The undertaking shall be effective
upon approval, and unless cancelled, shall
remain in force at all stages of the case
until promulgation of the judgment of the
Regional Trial Court, irrespective of
whether the case was originally filed in or
appealed to it;
(b) The accused shall appear before the
proper court whenever required by the
court of these Rules;
(c) The failure of the accused to appear
at the trial without justification and despite
due notice shall be deemed a waiver of his
right to be present thereat. In such case,
the trial may proceed in absentia; and
(d) The bondsman shall surrender the
accused to the court for execution of the
final judgment.
The original papers shall state the full
name and address of the accused, the
amount of the undertaking and the
conditions herein required. Photographs
(passport size) taken within the last six (6)
months showing the face, left and right
profiles of the accused must be attached to
the bail.
The bail shall remain enforce at all stages
in the case until the promulgation of the
judgment of the RTC.
If the accused failed to appear in court
without any valid reason then he is deemed to
have waived his right be present and the case
shall be tried in absentia. And the bondsman
shall surrender the accused to the court for
execution of the final judgment.
When the accused put up a bail, picture
shall be taken on him. Kodakan na siya front, left
and right. Ngano man na? kay inkaso ug mo
layas siya, he shall be identified by the
prosecution and the witnesses thru his pictures.
Section 3. No release or transfer except
on court order or bail. — No person under
detention by legal process shall be released
or transferred except upon order of the
court or when he is admitted to bail.
No release or transfer except on court
order or bail.
For example, a person is detained and
did not put up bail but his mother died. Unya
gusto siyang mo tan-aw for the last time. Pwede
ba nga adto siya mananghid didto sa jail warden?
NO. Unsa man diay buhaton niya? Adto siya
mananghid sa huwes (judge) or court.
Unsa may buhaton? He has to file a
Motion for Temporary Release. So everytime that
he wants to be release from the jail, he has to
ask permission from the court.
Section 4. Bail, a matter of right;
exception. — All persons in custody shall be
admitted to bail as a matter of right, with
sufficient sureties, or released on recognize
as prescribed by law or this Rule (a) before
or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the
Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or
life imprisonment.
In what instances that Bail is a matter of
right. Take not of this. This has been ask in the
bar several times. When is bail a matter of right?
There are 3 instances where Bail is a matter if
right.
When Bail a Matter of Right?
1. Before and after conviction by First
Level Courts.
So if you are charge before a first level court or
when you are charge of a crime wherein the
imposable penalty is 6 years and below, you can
put up bail before conviction and even after
conviction by the first level court.
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2. Before conviction by RTC upon
offence NOT punishable by death,
reclusion perpetua or life sentence.
3. Before conviction by RTC upon
offence punishable by death,
reclusion perpetua or life sentence,
provided that the evidence of guilt is
NOT strong.
Section 5. Bail, when discretionary. —
Upon conviction by the Regional Trial Court
of an offense not punishable by death,
reclusion perpetua, or life imprisonment,
admission to bail is discretionary. The
application for bail may be filed and acted
upon by the trial court despite the filing of
a notice of appeal, provided it has not
transmitted the original record to the
appellate court. However, if the decision of
the trial court convicting the accused
changed the nature of the offense from
non-bailable to bailable, the application for
bail can only be filed with and resolved by
the appellate court.
Should the court grant the application, the
accused may be allowed to continue on
provisional liberty during the pendency of
the appeal under the same bail subject to
the consent of the bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail
shall be cancelled upon a showing by the
prosecution, with notice to the accused, of
the following or other similar
circumstances:
(a) That he is a recidivist, quasi-
recidivist, or habitual delinquent, or has
committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from
legal confinement, evaded sentence, or
violated the conditions of his bail without
valid justification;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(c) That he committed the offense while
under probation, parole, or conditional
pardon;
(d) That the circumstances of his case
indicate the probability of flight if released
on bail; or
(e) That there is undue risk that he may
commit another crime during the pendency
of the appeal.
The appellate court may, motu proprio or on
motion of any party, review the resolution
of the Regional Trial Court after notice to
the adverse party in either case.
Bail is a matter if discretion – meaning
the court has the discretion to grant or not to
grant the same.
When is Bail a Matter if Discretion?
Out of picture na diri ang first level courts
tungod kay sa first level court, whether before
conviction or after conviction bail is a matter of
right. So, wala na diri ang first level court. Ang
imong bantayan ang RTC nalang.
Upon conviction by the Regional Trial
Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment,
admission to bail is discretionary. Now the case
here is either original and exclusive jurisdiction of
the RTC or appellate jurisdiction.
For example, an accused was charged
with homicide. A homicide is within the
jurisdiction of RTC. Before conviction, it is a
matter of right because it is not punishable by
death, reclusion perpetua or life sentence.
Whether or not the evidence of guilt is not srong,
it is irrelevant. Evidence of guilt is strong is only
relevant if the charge is punishable by death,
reclusion perpetua or life sentence. So, if charged
with homicide, before conviction a matter of
right. Suppose the accused was convicted by the
RTC and he is now filing an appeal before the CA.
Can he put up bail?  now, that is a matter of
discretion on the part of the court.
If the court (RTC or the CA) allows him to
put up bail, then that is valid. If the court
disallows him to put up a bail then that is within
the discretion of the court.
When to File Application for Bail?
The application of bail shall be filed and
be acted upon by the court provided that the
record…even if he already filed an appeal
provided that the record has not been
transmitted to the appellate court. Unsa toy
tawag ani?--> RESIDUAL JURISDICTION.
HOWEVER, when the decision of the trail
court convicting the accused change the nature
of the offence form non-bailable to bailable,
application for bail can only be filed and resolve
by the appellate court.
For example, the accused was charged
with murder. Non-bailable if the evidence of guilt
is strong. Now, the RTC convicted him of
homicide only. This time that is bailable. Where
are you going to file the application for bail? Your
application for bail shall only be filed and could
only be acted upon by the CA (appellate court)
because the original charge is non-bailable
although you are convicted of a bailable offense.
Ang court adunay discretion if the accuse
was convicted by the RTC by an offense not
punishable by death, reclusion perpetua, or life
sentence. However (naa na sad laing however),
that discretion of the court is lost when the
penalty imposed by the trial court is more than 6
years and any of the following circumstances is
present.
Nahinumdom pa mo adtong forms of
repetition?
Recidivist, Reiterasion, Quasi-
recidivist, or Habitual Recidivism. Unsay
grabe aning upat? habitual.
So even if the accused is convected of a
crime wherein the penalty imposed is reclusion
perpetua, life sentence or death but he is a
repeatr, that discretion of the trial court is lost.
So pananglitan ang accused nakonbikto
siya ug homicide sa RTC unya naa man untay
discretion ang court ka yang penalty imposed dili
man life senctece, reclusion perpetua or deat.
But kung convicted siya ug homicide unya siya
repeater, that discretion of the court to grant bail
is lost. Meaning to say, he should not be allowed
to post bail. But the penalty should be more than
6 years but below death, reclusion perpetua or
life sentence. Unya any of the following
circumstances is present.
Page | 298

1. He is a repeater
2. he has previously escaped from legal
confinement, evaded sentence, or
violated the conditions of his bail
without valid justification
3. he committed the offense while
under probation, parole, or
conditional pardon
For example he is under parole or
probation and he committed an offense, shall we
say homicide. If convicted by the RTC then he
cannot put up bail. Why? Because the penalty
imposed is more than 6 years and he committed
a crime when under probation.
4. the circumstances of his case
indicate the probability of flight if
released on bail
5. There is undue risk that he may
commit another crime during the
pendency of the appeal.
The appellate court may, motu proprio or
on motion of any party, review the resolution of
the Regional Trial Court after notice to the
adverse party in either case.
For example, a matter of discretion
because the circumstances are not present but
the trial court denied your motion. Now, the
appellate court can review moto proprio or on
motion of any party the order of the trial court or
the RTC.
When the accused is charged punishable
by reclusion perpetua, life sentce or death, he
could still be allowed to put up bail provided that
evidence on his guilt is NOT strong. And provided
further that he has to file a Motion to put up bail.
Whenever an accused files a motion to
put up bail when the charge is punishable by
reclusion perpetual or life sentence, the motion
should be subjected to hearing at all times. There
is no exception.
The court should set a hearing for the
reception of the evidence of the prosecution to
prove that the guilt of the accused is strong even
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
if the prosecutor manifested that he is not
objecting to the motion. Pananglitan, ang
accused was charged with murder. Ni file siya ug
Motion to put up bail. Unya ni ingon ang fical “no
objection your honor.” Bisan pa ug dili siya mo
object, the court will require the prosecution to
present evidence.
What about during the hearing of the
motion, the prosecution did not appear. Should
the court grant the motion? NO. There should be
presentation of evidence. The court should ask
questions to the witnesses to determine whether
the evidence of the prosecution against the guilt
of the accused is strong. Automatic na ha. Walay
exception. Motion to Post Bail there must be a
hearing and the prosecution must be required to
present evidence to establish whether the guilt of
the accused is strong or not.
January 13, 2013
….so called inquest proceedings. An inquest
proceedings is a summary proceeding in order to
determine the validity of the arrest. The reason
why a person validly arrested without a warrant
is not given a preliminary investigation or his
case is not subjected to preliminary investigation
the reason is that because of the provision of 125
of the RPC wherein the arresting officer is given a
short period of time 12-18-36 hours to file a
casein court. Failing to file any case in court the
arrested person can file a criminal case against
the arresting officer.
Now under rule 112 sec 6.
Section 6. When warrant of arrest may issue. —
(a) By the Regional Trial Court. — Within ten (10)
days from the filing of the complaint or
information, the judge shall personally evaluate
the resolution of the prosecutor and its
supporting evidence. He may immediately
dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest,
or a commitment order if the accused has
already been arrested pursuant to a warrant
issued by the judge who conducted the
preliminary investigation or when the complaint
or information was filed pursuant to section 7 of
this Rule. In case of doubt on the existence of
probable cause, the judge may order the
prosecutor to present additional evidence within
five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from
the filing of the complaint of information.
(b) By the Municipal Trial Court. — When required
pursuant to the second paragraph of section 1 of
this Rule, the preliminary investigation of cases
falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit
Trial Court may be conducted by either the judge
or the prosecutor. When conducted by the
prosecutor, the procedure for the issuance of a
warrant or arrest by the judge shall be governed
by paragraph (a) of this section. When the
investigation is conducted by the judge himself,
he shall follow the procedure provided in section
3 of this Rule. If the findings and
recommendations are affirmed by the provincial
or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However,
without waiting for the conclusion of the
investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing
and under oath of the complainant and his
witnesses in the form of searching question and
answers, that a probable cause exists and that
there is a necessity of placing the respondent
under immediate custody in order not to frustrate
the ends of justice.
(c) When warrant of arrest not necessary. — A
warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant
issued by the municipal trial court in accordance
with paragraph (b) of this section, or if the
complaint or information was filed pursuant to
section 7 of this Rule or is for an offense
penalized by fine only. The court shall then
proceed in the exercise of its original jurisdiction.
(6a)
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There is a provision there that in case of absence
or unavailability of any inquest prosecutor, in
case of unavailability of any inquest prosecutor,
the arresting officer or even the offended party or
any peace officer can file the case directly in
court on the basis of the offended party or the
arresting person. Now inyo ning timan-an kay usa
ni sa mga instances wherein a case is filed in
court directly. This is one of the instances
wherein the case is filed in court directly and in
the proper court. Sa ato pa it could be in the RTC.
Ang nahitabo man ani man gud, example murder,
warrantless arrest unya walau fiscal, kung e file
na nila sa court dili dawaton sa clerk of court,
ngano man? Kay tungod ang nahibal-an sa clerk
of court ang kaso mu agi jud sa fiscal. Ila ning na
kalimtan nga dunay provision sa rules of court,
nga in case of unavailable of any inquest
prosecutor, that any arresting officer, or offended
party or any peace officer can file directly in
court. An term nga gigamit is COMPLAINT, dili
information. Why? Because dili man siya mu-agi
sa fiscal. Automatic gyud na ha, ug wala jud
exception ana nga kung mu-ingon gani ta
INFORMATION ang nag file ana fiscal gyud.
Pero kung mu-ingon gani tag COMPLAINT
ang nag file ana DILI FISCAL kun dili
kadtong rang tulo either atong tulo.
OFFENDED PARTY, ANY PEACE OFFICER
(when we say any peace officer, sa ato pa, bisan
unsay rango niya, not necessarily the chief of
police) OR THE OFFICER CHARGED WITH THE
ENFORCEMENT OF THE LAW VIOLATED. naa
diha sa sec 6, rule 112.
Another, we have also learned that if the arrested
person would like to avail of his right to
preliminary investigation he should be granted if
on the following conditions:
1. if he would sign a waiver of his right
under art. 125 (article 125 sa RPC).
And since this is a waiver of right…
2. he should be assisted by counsel.
Now considering that he is availing his right to
PI(Preliminary Investigation) so necessarily he
shall be detained. Continue siya nga ma detain
didto sa facility sa police. Under sa rules of court.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
The arrested person may avail his right to bail.
Kana kun bailable.
Question: unsa-on man niya pag avail sa iyang
right to bail? Does he have to file a motion to bail
before the prosecutor’s office?
Answer: NO. because the prosecutors office
does not have the right to accept bail. He has to
file a PETITION not a motion. He has to file a
PETITION IN COURT. Bisan pag bailable na iyang
kaso, he has to file a “PETITION TO POST BAIL
“. mura ni siya special proceedings. Butangan na
didto ug “in the matter of petition to post bail:
….” Sa iyang pleading. Mao ra simple, e state
niya didto nga kana na detain siya, arrested and
for what charge and e raffle na ang iyang
petition. Dili motion, kay kung mu-ingon gani
ka nga motion duna nay kaso, nya kani wala
pman ni ma-abot sa korte.
Of course if dili bailable, if the charge is murder,
pwede sad siya maka file a petition to post bail
but it requires HEARING.
Naghisgot man tag waiver sa right, hinumdumi
nga karing pag waive his right under article 125
kinahanglan jud nag pag gamit sa utok nato. Kay
sa ato nang gisulti, sometimes it would be
advantageous on the part of the accused to just
let the prosecutor’s office to the case be filed in
court. Nganong advantageous man nga dili mna
siya maka tubag? Tungod kay kung mutubag siya
wala man pud siguro nga ma dismiss. Gani sa ato
nang gina sulti ang pangi-taon sa prosecutor’s
office, probable cause. So kung iyang depensa,
self defense, ayaw nalang. So kung rape gani na
iyang kaso nya iyang depensa consensual sex
to.. nah! Ayaw nlang mog file ug counter
affidavit! Adto nalang mo sa korte. Nag dugay
dugay lang ka. Kay kung i-agi pa na ug PI mu
standby ang kaso didto sa prosecutor’s office
tingali almost a month. Wehres kung ma file na
didto sa korte, kung tinud-anany kang walay sala,
you can file the case sooner. So REPEAT
sometimes it would be oreferable not to file for
preliminary investigation. So kay lagi mo waive
man ka sa imong right< padayon ka nga mu
tingkagol didto sa pulis. Unya kung gusto ka
makagawas mu file kag petition didto sa court.
Now unsa man buhaton nimo? Instead nga mu
file kag petition to bail, ipa file nalang nang
maong kaso nya didto nalng ka mo post ug bail,
dali ra? Diba…?
So dalhon ka didto sa prosecutor’s office nya e
ask ka, “ unsa man sir mo waive ka sa imong
right? Mu file kag preliminary investigation?” mu
ingon ka nga “dili” ah… na preparahon na dayon
tong information nya 30 minutes or 1 hour ana e
file na didto sa court, pyansa dayon ka didto. So
ang ubsan gani ana. Mao pay mu-tawag sa police
nga I file nalng na akong kaso…. Labi na kung
ang imong kaso bailable. Meaning dili na
advisable mu avail kag PI kay magdugay dugay
lang na sa kaso… mu standby lang na sa
prosecutor’s office.
The last topic that we discussed was about bail.
Kung ang imong cliente na priso na, imo jud nang
pangi ta-an ug pa-agi nga makagawas na siya. Su
usa sa pa-agi nga makagawas na siya is to post
bail. If the charge is bailable.
Question:
What about if the charge is bailable and the bail
is excessive and your client cannot afford to put
up the amount fix.
Answer: you can file a motion to reduce bail.
(MOTION FOR REDUCTION OF BAIL)
Unya kung dili to nimo kontra ang fiscal, kung
wala to nimo awaya, automatic na nga entitled
kag 50%...
If walay mu oppose and fiscal dili mu oppose so
most likely e grant na sa court. But dili man sad
nga kutob ra sa 50% ang e discount sa court. The
court has a wide latitude of discretion to lower
the amount. Remember that the court can abuse
its discretion because what is prohibited by the
rules is grave abuse of discretion. The court can
abuse its discretion and as long as it does not
amount to grave that is allowed by the rules. So
mao na nga mas maayo tag relasyon sa fiscal not
Page | 300

to the extent nga ato silang tudluan pag ka
korakot.
Take note! When is bail a matter of right.
When are the instances wherein bail is a
matter of right?
Remember that when bail is a matter of right
that cannot be denied by the court.
Example: in the crime of theft, the accused has
been charged several times, he’s a recidivist, are
you going to deny him his right to put up bail.
Because sa imong mind, kung ako ning pa put-
apon ug bail, inig gawas ani, mangawat raman
guhapon ni. Dili nanlng ni nako ipa bail. Ako ni e
deny iyang bail. DILI! The court cannot deny his
right to post bail.
Question: so what should the court do kung
nag tup siya kaning tawhana kung makagawas ni
delikado mu-eskapo?
Answer: increase the amount of the bail, but not
to the extent that it becomes excessive, because
kay kung imo na pud nang sobra-an pud that
would amount to denial of his right to bail.
Example, theft nangawat ug celfon, unya imong
pa put-upon ug 1milion, dili napud na maayo
pud, that would be tantamount of denial of his
right to bail.
Take note:
1. when is bail a matter of right
2. When is it a matter of discretion,
3. Circumstances wherein the
discretion of the court to grant
bail is lost. So tan awon nimo
where the penalty imposed is more
than 6 years. So one of the instances
is when the penalty imposed is more
than 6 years unya dunay paris and
any of those circumstances
mentioned in sec 5 Rule 114. So one
of this circumstances nga mu pares
sa more than 6 years is that the
accused is a repeater, recidivist,
quasi recidivist or habitual
delinquent or reiteracion when
the aggravating circumstance of
reiteracion is present.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
In that situation the court has no discretion
to grant bail. The bail should be denied. But
if any of those circumstances are NOT
present then the court has the discretion.
the court here refers to the RTC. Whether the RTC
is in its appellate or its original jurisdiciton.
Capital offense…. Ah never mind that, wala na
na. when you say capital offense, meaning
punishable by death. We have no more capital
offense.
Section 7. Capital offense of an offense
punishable by reclusion perpetua or life
imprisonment, not bailable. — No person charged
with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment, shall
be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal
prosecution.
We have this already. That a person charged with
an offense punishable by RP (reclusion perpetua),
LS (Life Sentence) or death, but death is no
longer around he can be granted bail but there is
a condition. When the evidence of guilt is
not strong. Because if it is otherwise he cannot
be granted bail.
Question: so what is he going to do, if he is
charged with an offense punishable by RP, LS .
Answer: Necessarily he has to file a Motion to
post bail. Dili na automatic nga maka put up
siya ug bail. There has to be a motion to post
bail. And automatic pud na nga once there is a
motion to post bail the motion is to be set for
hearing. Hearing for what? Hearing for the
reception of evidence for the prosecution.
AUTOMATIC JUD NA! wala jud exception ana!
There must be a hearing on the motion, even if
the prosecutor assigned to handle the case
posed no objection to the motion, manifested
that he is not objecting to the motion, Despite
this manifestation that he is not opposing the
motion, the court should allow the prosecution to
present evidence for the purpose of determining
whether the guilt of the accused is strong or not.
Because the answer to this question is important
for the court to determine whether or not to
grant the motion.
Question: Suppose during the hearing , the
prosecutor assigned did not appear, should the
court now grant the motion( motion to post bail)
Answer: NO there should be a hearing. So
what should the court do? Call the witnesses to
the witness stand and ask questions in order to
determine whether the guilt of the accused is
strong or not.
Question: Suppose the motion is denied, the
court will rule that the evidence of his guilt is
strong, does it mean that its sure the accused is
convicted?
Answer: No, because the evidence
presented by the prosecution para raman
to pag grant sa bail. Wala paman to maka
presenter ug evidence ang accused.
The same way nga pag ka human pag presenter
ug ebidensya ang prosecution then the court will
grant bail on the ground that the evidence of his
guilt is not strong. Nag pa sabot ban a nga
aquitted na ang accused? NO, because the
evidence presented was only for the motion to
post bail. The prosecution could still present
additional evidence in order to strengthen its
case.
Unya possible pud kung ang charge murder, pag
human pag presenter ug ebidensya, ang nakita
sa korte dili murder, kun dili homicide. Dili na
pasabot nga ma acquitted na ang accused.
Section 8. Burden of proof in bail application. —
At the hearing of an application for bail filed by a
person who is in custody for the commission of
an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution
has the burden of showing that evidence of guilt
is strong. The evidence presented during the bail
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hearing shall be considered automatically
reproduced at the trial, but upon motion of either
party, the court may recall any witness for
additional examination unless the latter is dead,
outside the Philippines, or otherwise unable to
testify.
In the application for bail, the burden of proof is
upon the prosecution, to prove that the evidecen
of guilt against the accused is strong. Remember
the word! EVIDENCE OF GUILT IS STRONG.
During the presentation of the evidence of the
prosecution, can the accused cross-examine? Yes.
Can the accused present rebuttal evidence? Yes.
That is the ruling of the SC in the case of Cortes
vs. Catral
CORTES vs. CATRAL
AM no. RTJ-97-1387
September 10, 1997
Bail is the security required by the court and
given by the accused to ensure that the accused
appears before the proper court at the scheduled
time and place to answer the charges brought
against him or her. It is awarded to the accused
to honor the presumption of innocence until his
guilt is proven beyond reasonable doubt, and to
enable him to prepare his defense without being
subject to punishment prior to conviction.
Facts:
A sworn letter of complaint was filed by
Flaviano Cortes charging Judge Catral with Gross
Ignorance of the Law committed among others
was that he granted bail in murder cases without
hearing. With regard to this charge respondent
judge. On the first murder cases he issued an
order for reduction of the bailbond from 200k to
50k in a motion to this effect without conducting
any hearing. On another murder case he granted
bail to the accused without conducting any
hearing. Respondent judge, in two instances,
granted bail to an accused charged with murder,
without having conducted any hearing as to
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
whether the evidence of guilt against the
accused is strong.
Issues:
1. WON, the respondent judge
committed Gross Ignorance of the
Law? YES
2. WON, a judge is bound by the
recommendation of the prosecutor
and the affidavits and sworn
statements of the witnesses? NO
Ruling:
1. YES. The importance of a hearing has
been emphasized in not a few cases wherein the
court ruled that, even if the prosecution refuses
to adduce evidence or fails to interpose an
objection to the motion for bail, it is still
mandatory for the court to conduct a hearing or
ask searching questions from which it may infer
the strength of the evidence of guilt, or the lack
of it against the accused. The reason for this is
plain. Inasmuch as the determination of whether
or not the evidence of guilt against the accused
is strong is a matter of judicial discretion, it may
rightly be exercised only after the evidence is
submitted to the court at the hearing. Since the
discretion is directed to the weight of evidence
and since evidence cannot properly be weighed if
not duly exhibited or produced before the court,
it is obvious that a proper exercise of judicial
discretion requires that the evidence of guilt be
submitted to the court, the petitioner having the
right of cross examination and to introduce
evidence in his own rebuttal.
2. NO. We need only remind him that he is not
bound by the recommendation of the prosecutor
and the affidavits and sworn statements of the
witnesses are mere hearsay statements which
could hardly be the basis for determining
whether or not the evidence of guilt against the
accused is strong.
The procedural lapse of respondent judge is
aggravated by the fact that even though the
accused have yet to be arrested, respondent
already fixed bail in the sum of P200,000.00.
Respondent evidently knew that the accused
were still at large as he even had to direct their
arrest in the same order where he simultaneously
granted them bail. At this juncture, there is a
need to reiterate the basic principle that the right
to bail can only be availed of by a person who is
in custody of the law or otherwise deprived of his
liberty and it would be premature, not to say
incongruous, to file a petition for bail for
someone whose freedom has yet to be curtailed.
Be that as it may, we reiterate the following
duties of the trial judge in case an application for
bail is filed:
1. In all cases, whether bail is a
matter of right or of discretion,
notify the prosecutor of the
hearing of the application for bail
or require him to submit his
recommendation (Section 18,
Rule 114 of the Rules of Court as
amended);
2. Where bail is a matter of
discretion, conduct a hearing of
the application for bail regardless
of whether or not the prosecution
refuses to present evidence to
show that the guilt of the
accused is strong for the purpose
of enabling the court to exercise
its sound discretion; (Sections 7
and 8, supra).
3. Decide whether the guilt of the
accused is strong based on the
summary of evidence of the
prosecution;
4. If the guilt of the accused is
not strong, discharge the accused
upon the approval of the bailbond
(Section 19, supra) Otherwise
petition should be denied.
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Automatic jud na nga duna gani petition or
motion to post bail AND the offense
charged is punishable by RP, LS or Death
necessary jud na that there must be a
hearing !
What are the consideration to grant bail?
Section 9. Amount of bail; guidelines. — The
judge who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
(a) Financial ability of the accused to give
bail;
(b) Nature and circumstances of the
offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the
accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the
accused;
(g) Probability of the accused appearing
at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive
from justice when arrested; and
(j) Pendency of other cases where the
accused is on bail.
Excessive bail shall not be required. (9a)
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ang katarungan ra gyud nganong kung ang
charge gani, punishable by RP or LS ang
katarungan ra jud or ang ground given by the
rules of court for the grant of bail is when the
evidence of guilt I not strong. Mao ra gyud na.
pero in the case of ECLEO wherein Ecleo was
granted bail not because the evidence of his guilt
is not strong but.. unsa gani to iyang kaso?
Parricide, the penalty for that is RP, the court
granted bail to Ecleo not because that the
evidence against him is not strong. The reason
given by the trial court, is that he is sick, he is a
walking time bomb. Anytime according to the
trial court anytime he would be dead.
CATIIS vs. CA
Gr. No. 153979
February 6, 2006
Facts:
Petitioner Catiis filed a letter – complaint
against respondents for syndicated estafa. The
assistant city prosecutor finding the existence of
probable cause fro syndicated Estafa with no bail
recommended. A notice of hearing was issued
setting the case for arraignment and on the same
day respondents filed an urgent motion to fix
bail. The trial judge issued an order reconsidering
his earlier order declaring the offense charged
bailable. In finding the accused entitled to bail
the trial judge made a disquisition, that the
offense charged is syndicated estafa, the crime is
committed by 5 or more persons, the persons
charged were only 4, thus it could not qualify for
syndicated estafa. Thus respondents posted
bonds. Since the crime charged was not
committed by a syndicate as defined under the
law, the penalty of life imprisonment to death
cannot be imposed on private Respondents.
Judge Bersamin is correct when he ruled that
private respondents could only be punished with
reclusion temporal to reclusion perpetua in case
of conviction since the amount of the fraud
exceeds P100,000.00. The next question is,
whether Judge Bersamin is correct in finding that
the crime charged is bailable despite that the
imposable penalty ranges from reclusion
temporal to reclusion perpetua?
Issue:
WON, Judge Bersamin is correct in finding
that the crime charged is bailable despite that
the imposable penalty ranges from reclusion
temporal to reclusion perpetua? YES
Ruling:
YES. Sections 8 and 9 of Rule 110 of the
Revised Rules of Criminal Procedure, which took
effect on December 1, 2000, provide:
Sec. 8. Designation of the offense. — The
complaint or information shall state the
designation of the offense given by the
statute, aver the acts or omissions
constituting the offense, and specify its
qualifying and aggravating circumstances.
If there is no designation of the offense,
reference shall be made to the section or
subsection of the statute punishing it.
Sec. 9. Cause of the accusations. — The acts
or omissions complained of as constituting
the offense and the qualifying and
aggravating circumstances must be stated
in ordinary and concise language and not
necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to know
what offense is being charged as well as its
qualifying and aggravating circumstances
and for the court to pronounce judgment.
Clearly, it is now a requirement that the
aggravating as well as the qualifying
circumstances be expressly and specifically
alleged in the complaint or information.
Otherwise, they cannot be considered by the trial
court in their judgment, even, if they are
subsequently proved during trial. A reading of the
Information shows that there was no allegation of
any aggravating circumstance, thus Judge
Bersamin is correct when he found that the lesser
penalty, i.e., reclusion temporal, is imposable in
case of conviction.
Page | 303

Petitioner claims that the Order of Judge
Bersamin allowing private respondents to post
bail already prejudged the case; that he
summarily decided the eventual and imminent
dismissal of the criminal case without even the
reception of evidence; that such prejudgment
came from a ruling on a mere issue of bail.
Such argument is baseless. The Order was issued
on the basis that the allegations in the
Information do not establish that the crime
charged was committed by a syndicate as
defined under the law where the penalty of life
imprisonment to death could be imposed.
Nowhere in the Order did Judge Bersamin state
that the act complained of is not punishable at
all.
The SC ruled that even if a person is charged
with a capital offense and the evidence of his
guilt is strong. However if the accused has failing
health for humanitarian reasons, he may be
admitted to bail. But this is discretionary on the
part of the court.
Tingali mao ni gibasihan sa trial court kang Ecleo.
Pero kung ang Rules of court ra jud imong
basihan ang katarungan ra jud is “when the
evidence of guilt if not strong”
Kinds of bail
We have the corporate surety. I discussed this
already.
Section 10. Corporate surety. — Any
domestic or foreign corporation, licensed as
a surety in accordance with law and
currently authorized to act as such, may
provide bail by a bond subscribed jointly by
the accused and an officer of the
corporation duly authorized by its board of
directors.
Dili kwarta ang ilang ibutang didto sa korte, kundi
ang ila lang pangalan. Pareha bag insurance. But
the surety company must be authorized by the
SC. They must have an permit from the OCA or
the Office of the Court Administrator.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 11. Property bond, how posted. — A
property bond is an undertaking constituted as
lien on the real property given as security for the
amount of the bail. Within ten (10) days after the
approval of the bond, the accused shall cause the
annotation of the lien on the certificate of title on
file with the Register of Deeds if the land is
registered, or if unregistered, in the Registration
Book on the space provided therefor, in the
Registry of Deeds for the province or city where
the land lies, and on the corresponding tax
declaration in the office of the provincial, city and
municipal assessor concerned.
Within the same period, the accused shall submit
to the court his compliance and his failure to do
so shall be sufficient cause for the cancellation of
the property bond and his re-arrest and
detention.
The property, kani siya uti kuti ni siya. Tungod
kay ang korte dili man basta basta mudawat ug
property bond. It must be free from any tax
liability, meaning to say there must be tax
clearance.
And you relate it with criminal law, that once you
have made that property as bond, you cannot
sell the property without authority from the court,
you can be charged with estafa.
Section 12. Qualifications of sureties in property
bond. — The qualification of sureties in a
property bond shall be as follows:
(a) Each must be a resident owner of real
estate within the Philippines;
(b) Where there is only one surety, his
real estate must be worth at least the
amount of the undertaking;
(c) If there are two or more sureties, each
may justify in an amount less than that
expressed in the undertaking but the
aggregate of the justified sums must be
equivalent to the whole amount of bail
demanded.
In all cases, every surety must be worth the
amount specified in his own undertaking over
and above all just debts, obligations and
properties exempt from execution.
This is a matter of reading.
Section 13. Justification of sureties. — Every
surety shall justify by affidavit taken before the
judge that he possesses the qualifications
prescribed in the preceding section. He shall
describe the property given as security, stating
the nature of his title, its encumbrances, the
number and amount of other bails entered into
by him and still undischarged, and his other
liabilities. The court may examine the sureties
upon oath concerning their sufficiency in such
manner as it may deem proper. No bail shall be
approved unless the surety is qualified.
It must be approved by the court and authorized
by the SC and iyang authority ana is monthly, e
renew monthly.
Section 14. Deposit of cash as bail. — The
accused or any person acting in his behalf may
deposit in cash with the nearest collector or
internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or
recommended by the prosecutor who
investigated or filed the case. Upon submission of
a proper certificate of deposit and a written
undertaking showing compliance with the
requirements of section 2 of this Rule, the
accused shall be discharged from custody. The
money deposited shall be considered as bail and
applied to the payment of fine and costs while
the excess, if any, shall be returned to the
accused or to whoever made the deposit.
Ang pinaka sayon nga bail kay kiningn cas bond.
All you have to do is to deposit the case to the
clerk of court. Whatever happens to the case,
whther the accused be convicted or acquitted
later on the bail shall be released and returned to
Page | 304

the bondsman. Pwede sad nga ikaw mismo ang
mu put up pwede sad lain tao ang mu put up,
pwede sad.
If ikaw ang silingan imong property ang imong
gipagamit nga property bond pwede ra. Can you
withdraw the bail? Yes pwede ra, but you have to
surrender the accused in court. You can file a
motion to cancel bail but you have to surrender
the person of the accused.
Section 15. Recognizance. — Whenever allowed
by law or these Rules, the court may release a
person in custody to his own recognizance or that
of a responsible person.
To make it simplier, this is a promise or
undertaking that the accused will appear in court
whenever his presence is needed in court. Kani
applicable rani sa mga gagmay nga kaso. Dli na
pwede nga gi charge kag rape, dli na pwede.
Unya dili pud tanan nga gagmay nga kaso, kato
rang nay balaud nga nagtugot siya nga nag allow
ug recognizance. “whenever allowed by law or
these rules” mao na ang giapasabot.
Then on what instance when the law allows
recognizance?
Probation. When ma convict and ang gi-impose
nga penalty is 6 years pwede siya mu avail ug
probation. Kung kanang tawhana detained gani
na xa kay wala maka put up ug bail. Duha man
gud ka situation nga detain ka.
1. DETAIN XA KAY NON-BAILABLE ANG KASO
AND EVIDENCE OF GUILT IS STRONG
2. BAILABLE TUOD ANG KASO BUT CANNOT
PUT UP BAIL
Kung mu apply syag probation, inig file nimo ug
bail (comment: bail man gi ingon ni kd but I think
probation ni xa, e background check paka ana
unya mu-last na xa ug 60 days. So maghulat
paka. Now under the probationlaw katong mag
apply ug probation can be released on
recognizance. Pwede ka ma release on
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
recognizance so mangita lang kag tao nga
mupasalig nimo. Nga mupasalig nga mudala
nimo didto sa court whenever your presence is
required. So kanang tao nga mu take custody
nimo mao nay mupasalig nga dalhon ka niya sa
korte. So that is once instance wherein release on
recognizance is allowed.
Question: if the accused is charged of homicide,
he put up bail. He was then convicted and was
imposed shall was say 8 years to 14 yrs and
aside from imprisonment he was ordered to pay
civil indemnity of P50k. plus loss of earning
capacity so ni amount for example ni abot 1
million. Pwede ba ang korte automatic maka off
set sa katong iyang gi put up nga bail. So kay
naka put up man siya ug 40k so pwede ba kaning
40k shall be used to pay his civil liability?
Answer: NO. dili pwede. Ang pyansa under sec
14 pwede lang magamit or ma hold ravsa korte
kung ang sentence gi impose is fine. Kanang civil
liability dili pwede nga I hold sa korte. It has to be
release. Unya ig human na release pwede nga e
execute to. Inig execute na pwede nato kuhaon,
e-garning ba or unsa.
Section 16. Bail, when not required; reduced
bail or recognizance. — No bail shall be required
when the law or these Rules so provide.
When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribe for the offense charged,
he shall be released immediately, without
prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty
to which the accused may be sentenced is
destierro, he shall be released after thirty (30)
days of preventive imprisonment.
A person in custody for a period equal to or more
than the minimum of the principal penalty
prescribed for the offense charged, without
application of the Indeterminate Sentence Law or
any modifying circumstance, shall be released on
a reduced bail or on his own recognizance, at the
discretion of the court.
There are instances where bail is not required.
Example:
1. cases governed by the rules on summary
procedure.
2. When a person has been preventively
detained for a period equal to or more
than the possible maximum penalty
prescribed by law.
So for example na priso siya for 6 years kay wala
xa ka put up ug bail nya ang iyang na prisohan
nga kaso is penalty imposed is 6 years. Unya na
pending nan a iya kaso for 6 years or more than
that. Pwede ban a xa ma release bisan wla siya
ka pyana? YES. Tungod kay ang iyang na
prisohan tukma or equal sa penalty nga iyang na
prisuhan. So sa ato pa bisan pa nga ma konvicto
na xa makagawas ran a xa kay ang iyang
preventive detention ihapak man didto sa iyang
penalty.
Question: what about if the preventive
detention is only equivalent to the minimum?
Answer: he is only entitled to reduce bail or
recognizance.
If the accused has been detained preventively for
a period equivalent or more than the imposable
penalty that is without prejudice to the
continuation of hearing or trial or proceeding of
his case.
Section 17. Bail, where filed. — (a) Bail in the
amount fixed may be filed with the court where
the case is pending, or in the absence or
unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge,
municipal trial judge, or municipal circuit trial
judge in the province, city, or municipality. If the
accused is arrested in a province, city, or
municipality other than where the case is
pending, bail may also be filed with any regional
trial court of said place, or if no judge thereof is
Page | 305

available, with any metropolitan trial judge,
municipal trial judge, or municipal circuit trial
judge therein.
(b) Where the grant of bail is a matter of
discretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the
case is pending, whether on preliminary
investigation, trial, or on appeal.
(c) Any person in custody who is not yet
charged in court may apply for bail with
any court in the province, city, or
municipality where he is held.
Question: ang imong client gi charge dri sa cebu
city court. Asa man nimo e post ang bail?
Answer: general rule: post the bail where court
he was charged. Or where the case is pending
there you are going to post bail.
Supposed the judge assigned to that court is not
around asa man ka mu put up sa bail? Sa iynag
mga kauban. So kung RTC gani ngadto sa mga
kauban nga judge niya anang korteha.
Kung pananglitan MTC nga kaso den sa iyang
mga kauban nga MTC.
Question: the case is pending in Cebu city court,
and he is arrested in Mindanao, sa man siya mu
put up ug bail?
Answer: of course pwede siya maka put up ug
bail dri sa cebu. But layo man kaayu dili man siya
gusto mu sakay sa eroplano nga nka posas, dli
man siya gusto musakay ug barko nga naka
posas. So this is another exception, he can
put up bail in another RTC in the place
where he was arrested. In any artc. RTC una
hap! Unya in the absebce of an RTC, he can put
up bail in any MTC.
But remember that that court where he filed bail
cannot reduce the bail. Dili pwede nga mu file
siay ug motion didto. Ang iya didto pag post
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ragyud ug bail. That court does not have the
discretion to reduce bail. Or where bail is a
matter of discretion, adto gyud siya mu put up ug
bail where the case is pending. So look at letter
b.
Unsaon man na pagka hibalo sa korte diri nga
nka post or granted siya ug bail. That court
should forward the record of the granting of the
bail to the court where the case is pending.
Section 18. Notice of application to prosecutor.
— In the application for bail under section 8 of
this Rule, the court must give reasonable notice
of the hearing to the prosecutor or require him to
submit his recommendation.
The prosecutor has to be notified.
Section 19. Release on bail. — The accused
must be discharged upon approval of the bail by
the judge with whom it was filed in accordance
with section 17 of this Rule.
Whenever bail is filed with a court other than
where the case is pending, the judge who
accepted the bail shall forward it, together with
the order of release and other supporting papers,
to the court where the case is pending, which
may, for good reason, require a different one to
be filed.
He has to release the papers to the court where
the case is pending.
Section 20. Increase or reduction of bail. —
After the accused is admitted to bail, the court
may, upon good cause, either increase or reduce
its amount. When increased, the accused may be
committed to custody if he does not give bail in
the increased amount within a reasonable period.
An accused held to answer a criminal charge,
who is released without bail upon filing of the
complaint or information, may, at any
subsequent stage of the proceedings and
whenever a strong showing of guilt appears to
the court, be required to give bail in the amount
fixed, or in lieu thereof, committed to custody.
The bail can be reduced on motion of the
accused or the court can increase it. If the court
finds that there is a need to increase the bail.
Section 21. Forfeiture of bond. — When the
presence of the accused is required by the court
or these Rules, his bondsmen shall be notified to
produce him before the court on a given date and
time. If the accused fails to appear in person as
required, his bail shall be declared forfeited and
the bondsmen given thirty (30) days within which
to produce their principal and to show cause why
no judgment should be rendered against them for
the amount of their bail. Within the said period,
the bondsmen must:
(a) produce the body of their principal or
give the reason for his non-production;
and
(b) explain why the accused did not
appear before the court when first
required to do so.
Failing in these two requisites, a judgment shall
be rendered against the bondsmen, jointly and
severally, for the amount of the bail. The court
shall not reduce or otherwise mitigate the liability
of the bondsmen, unless the accused has been
surrendered or is acquitted.
Remember that one of the condition for the grant
of bail is the presence of the accused in court
whenever his presence is required.
There are 3 instances where the presence of the
accused is required.
Take note!
1. During arraignment. Wla jud exception
ana
2. During the presentation of the
witnesses of the prosecution for
identification purposes. Kani man gud
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sa criminal, criminal ra ha, kaniman gud
sa criminal ang witness sa prosecution
kinahanglan jud mutudlo sa accused in
open court. Itudlo jud. For example: mr
witness you said that you know the
accused because he is your neighbor…
can you please point the accused… so iya
e-tudlo jud dayon na… nganong
importante man na? because that is to
prove that the person who committed the
crime is the same person charged in
court. Kay pwede man lain ang ni commit
sa crime and lain sad ning gidakop. Mao
na siya nga kanang witness wala maka
point kay naka limo tang fiscal, dismiss
gyud na ang kasoha. Dismiss gyud na.
kay sa criminal case 2 ka importante
trabaho sa fiscal.
a. to prove the crime
b. to prove that the person
charged is the one
committing the crime.
So this 2 mao ni siyay importante kaayu
nga trabaho sa fiscal. That is why during
trial, the witness of the prosecution must
be able to identify the accused.
Another is during the promulgation of the
decision the accused must be present.
Now dili gani katunga ang accused if required by
the, court his bond shall be cancelled. Unya,
automatic man sad na nga i-cancel gani ang
bond then warrant of arrest shall be issued.
Ikaduha, kung i-cancel gani na ang iya bond,
gawas sa issue-han siya ug warrant of arrest,
katong iyahang piyansa (be it cash, propert or
surety) shall be forfeited in favour of the
government. BUT before forfeiture the
bondsman shall be required to produced the
accused and explain why no judgment be render
for the amount of the bond.
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So, sa ato pa kanang forfeiture sa bond duna nay
duha ka STEPS:
1. Order of the forfeiture
2. The judgment of the confiscation
Forfeiture alone: kanang mu-ingon siya nga “It is
hereby forfeited”, dili pa na kai pa.explain-non pa
na nimu kung nganong wa to katunga ang
akusado.
If the Bondsman cannot give valid justification for
failure of the accused to appear, this is the time
that the court will render judgment of
confiscation. Kung sa ato pa i-execute na ni.
You try to read arong makasabot mo this case of
MENDOZA vs. ALARMA, basaha jud ang text
ani ha regarding forfeiture of the bond.
MENDOZA VS. ALARMA, May 7, 2008. Basaha
jud aning kasuha!
Q: how long should the court give the bondsman
to produce the principal (the body of the
accused) and to show cause why judgment shall
not be render for the bond?
A: 30 days. That period cannot be shorten.
So, within that period of 30 days the bondsman
shall produce the body of the accused and should
explain why he did not appear, kai possible man
nasakit to siya.
Then, let’s go now to the cancellation of the
bond.
SEC. 22. Cancellation of bail. — Upon
application of the bondsmen, with due
notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or
proof of his death.
The bail shall be deemed automatically
cancelled upon acquittal of the accused,
dismissal of the case, or execution of the
judgment of conviction.
In all instances, the cancellation shall be
without prejudice to any liability on the
bail.
The bond is automatically cancelled:
1. Upon the acquittal of the accused; or
2. Dismissal of the case; or
3. upon the execution of judgment.
Now, if the bondsman to withdraw the bond, he
shall surrender the accused. Mao to ang ako
gisulti niyo, dina ka ganahan then ikaw and
bondsman puede i-withdraw to nimu ang bond
and you have to file a motion to withdraw the
bond BUT you have to surrender the person of
the accused.
Puede pud na nag accused mismo maoy bonds
man. Kung dato diay siya magkinahanglan pa
diay siya ug silinagn na maoy mupiyansa niya?
Puede siya mahimong iyang kalugalingong
bondsman.
Now, timan-i niyo ni, kana ganing mag-bondsman
ka duna kai accused na gi-piyansahan,
hinumdumi na ika’y nipuli sa trabaho sa jailer.
You are taking the place of the jail guard. Kai
kung muskapo nang akusaduha ang imong
piyansa maoy imbarguhon. Now, since you are
taking the place of the jail guard you can arrest
the accused even without warrant for the
purpose of surrendering to the court.
For example muskapo nang akusaduha, didto sa
korte ang imo piyansa gi-forfeit niya pa-explainon
man ka sa court ana, diba? Sa di pajud to
imbarguhon completely pa-explainon man sa ka
within 30 days . Gawas na paexplainon ka you
are required to produce the person of the
accused. Now, you can now arrest the accused
even without warrant under Rule 23.
SEC. 23. Arrest of accused out on bail.—For
the purpose of surrendering the accused,
the bondsmen may arrest him or, upon
written authority endorsed on a certified
copy of the undertaking, cause him to be
Page | 307

arrested by a police officer or any other
person of suitable age and discretion.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts
to depart from the Philippines without permission
of the court where the case is pending.
Because an accused is facing a crime, he is under
bail, kanang iyang pag-piyansa that is his
limitation of his right to travel. In fact he
cannot change address; he cannot change
residence without informing the court. He cannot
change his address... didto sa piyansa ibutang
jud niya diin siya gapuyo, dili siya ka-change sa
iyahang residence without informing the court.
Unya dili siya kaadto didto sa gawas sa nasod
without permission from the court.
In one case that reach the SC, Santiago (kaning si
Defensor Santiago), daghan man siyang kaso
katong BID commissioner pa na siya; gipasakaan
na siya ug kaso didto sa sandiganbayan. Unya sa
dihang senator na siya she was granted
scholarship didto sa Harvard, that is a rare
opportunity, that is so hard to refused (Harvard
gud na!). So mao to nga niadto na siya sa airport
kai lage mu-avail na siya sa scholarship, pag-abot
didto sa airport gipadakop siya sa
sandiganbayan. The justice who was handling his
case motu proprio issued warrant of arrest (kai gi
news man gud ni sa news paper na mao to gi-
grantan ug scholarship gikan aning mga pitsaha,
pakabasa ani sa sandiganbayan gi-atangan ning
maong pitsa, gi-issue-han dayon ug warrant then
pag-abot sa airport gidakop dayon). So, the case
reached the SC.
Q: Was the issuance of warrant of arrest motu
proprio to prevent her from leaving valid?
A: Now, according to the SC, in the case of
Santiago vs. Garchitorina, December 2,
1993, YES the court can motu prorio issue hold
departure order to prevent the accused from
leaving the Philippines.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
By the way, hold departure order can only be
issued by the RTC. Meaning, necessarily the case
must be pending before the RTC, First Level
Courts do not have power to issue hold departure
order. Unya kanang hold departure order lahi na
siya sa watch list. Knaang watch list ilista raka
diha, bantayan raka pero di ka mapugngan.
Kanang hold departure order pugngan jud ka sa
pagbiyahe, unya only the RTC can issue that kind
of order.
SEC. 24. No bail after final judgment;
exception.—No bail shall be allowed after a
judgment of conviction has become final. If
before such finality, the accused applies for
probation, he may be allowed temporary
liberty under his bail. When no bail was
filed or the accused is incapable of filing
one, the court may allow his release on
recognizance to the custody of a and examine the condition of the jail
responsible member of the community. In
no case shall bail be allowed after the
accused has commenced to serve sentence.
No bail shall be allowed after a judgment of
conviction has become final. Kana siyang
bail, applicable ra na if the case is pending,
either pending trial or pending appeal. Pending
appeal: after conviction of the RTC, that is a
matter of discretion on the part of the court.
Pero once the decision of the court has been final
and executor (meaning nilapas na ang 15 days)
aw dili na pwede piyansahan, necessarily you
have to serve your sentence. Dunay usa ka-
EXCEPTION ani nga final and executory pero
puede gihapon makapiyansa ( unya timan-i jud ni
niyo kai usa raman ni): kanang mu-apply ka ug
probation.
Sa ato pa kung mu-apply ka ug probation, inig
apply jud nimu sa probation kanang imung kaso
mahimu na nang final di na na ka-appealar, final
na na! Pero dili executory kai ang sentence gi-
hold in abeyance man. Pero supposed to be dili
naka kapiyansa ana.
So, when you file your application for probation
puede ka nga makapiyansa, katong gi-piyansa
nimu sa pending pa ang kaso sa wa paka
kasentensiyahe puede nimu mahangyo ang korte
nga mao ra gihapon to ang imu gamiton. Unya
(balikan nato ato gidiscuss ganiha) king wa ka
ikapiyansa nagpuyo ka didto sa prisuhan, puede
ka marelease on recognizance.
SEC. 25. Court supervision of detainees.—
The court shall exercise supervision over all
persons in custody for the purpose of
eliminating unnecessary detention. The
executive judges of the Regional Trial
Courts shall conduct monthly personal
inspections of provincial, city, and
municipal jails and the prisoners within
their respective jurisdictions. They shall
ascertain the number of detainees, inquire
on their proper accommodation and health
facilities. They shall order the segregation
of sexes and of minors from adults, ensure
the observance of the right of detainees to
confer privately with counsel, and strive to
eliminate conditions inimical to the
detainees.
In cities and municipalities to be specified
by the Supreme Court, the municipal trial
judges or municipal circuit trial judges shall
conduct monthly personal inspections of
the municipal jails in their respective
municipalities and submit a report to the
executive judge of the Regional Trial Court
having jurisdiction therein.
A monthly report of such visitation shall be
submitted by the executive judges to the
Court Administrator which shall state the
total number of detainees, the names of
those held for more than thirty (30) days,
the duration of detention, the crime
charged, the status of the case, the cause
for detention, and other pertinent
information.
Page | 308

This is the duty of the court for the supervision of
the detainees. Judges are required to conduct jail
visitation.
Now, Sec 26.
SEC. 26. Bail not a bar to objections on
illegal arrest, lack of or irregular
preliminary investigation.—An application
for or admission to bail shall not bar the
accused from challenging the validity of his
arrest or the legality of the warrant issued
therefor, or from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him,
provided that he raises them before
entering his plea. The court shall resolve
the matter as early as practicable but not
later than the start of the trial of the case.
Sec 26 is important in the sense that it provides
that the act of the accused in posting bail shall
be considered a waiver of his right to question
the legality of his arrest. For example a person
has been arrested without any warrant and the
arrest does not fall in any of the arrest under sec
5, Rule 113 (so the arrest is illegal), if the
arrested person will file a petition to put up bail
and eventually put up bail his act of posting bail
is not considered as waiver of his right to
question the legality of his arrest.
Kani-adto gud, kung nigamit mo ug karaang libro
(before narevised nag criminal procedure), when
you put up bail unya illegal ang imu arrest under
the old rules waived! Sa ato pa priso raka then
mufile ka ug motion to quash on the ground of
lack of jurisdiction over the accused and then
samtang pending ang imu motion sa korte,
samtang kapaabot ka sa decision sa imu
motion..aw didto lang sa ka.
So, ingon ang SC, “ato ni usbon ui, illegal na imo
pang silotan”. So, ipa-put up ug bail unya it will
not be considere a waiver.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Or from assailing the regularity or
questioning the absence of a preliminary
investigation. For example, he is entitled to
preliminary investigation but he was denied of his
right, gi-didtso siya ug dakop without any
preliminary investigation or there is an
irregularity of the conduct of PI, puede siya
maka-put up of bail and the same shall not be
considered as waiver of his right to question the
regularity of absence of the PI.
Example: pananglitan nikiha ka ug homicide, dili
valid warrantless arrest. Nipatay ka, kahuman
nimu ug payat nidagan ka, wa ka kadakpi unya
gi-file-an ka ug kaso didto sa prosecutor’s office.
Niya ang process server palahubog muserve
kunuhay siya ug subpoena pero kai kita man siya
ug barkada while padung sa inyuha niinum na
nuon. “Bai dali nisuroy lagi ka?” “Ai naa ko serban
ug subpoena taga diri man ni sa iyuha” “Dali
sa...dali sa..dali sa tagay ta” “Ayaw bai” “Aisus
dugay na ta wa magkita oi”. Istorya...istorya...
you know kaning istoya maabtan ta aning gabi-i.
“Hastang gabii na diay”... Unya gibutangan nlang
niya didto ug “cannot be located at the address
given”. So, giresolve sa fiscal then he file the
case in court. Pag-issue na sa warrant nahibulong
nlang ang tawo na nakapatay, nagtuo siya na wa
ni-file ug kaso... so dakop dayon siya. Now,
pagdakop he put up bail.
Q: can he still question the irregularity of the
conduct of preliminary investigation despite the
fact that he put up bail?
A: Yes. But if he want to question the legality of
his arrest the same shall be made before
arraignment.
RULE 115
RIGHTS OF ACCUSED
SECTION 1. Rights of accused at the trial.—
In all criminal prosecutions, the accused
shall be entitled to the following rights:
(a) To be presumed innocent
until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature
and cause of the accusation against
him.
(c) To be present and defend in
person and by counsel at every stage
of the proceedings, from arraignment
to promulgation of the judgment. The
accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his tail, unless
his presence is specifically ordered by
the court for purposes of identification.
The absence of the accused without
justifiable cause at the trial of which he
had notice shall be considered a waiver
of his right to be present thereat. When
an accused under custody escapes, he
shall be deemed to have waived his
right to be present on all subsequent
trial dates until custody over him is
regained. Upon motion, the accused
may be allowed to defend himself in
person when it sufficiently appears to
the court that he can properly protect
his rights without the assistance of
counsel.
(d) To testify as a witness in his
own behalf but subject to cross-
examination on matters covered by
direct examination. His silence shall
not in any manner prejudice him.
(e) To be exempt from being
compelled to be a witness against
himself.
(f) To confront and cross-
examine the witnesses against him at
the trial. Either party may utilize as
part of its evidence the testimony of a
Page | 309

witness who is deceased, out of or
cannot with due diligence be found in
the Philippines, unavailable, or
otherwise unable to testify, given in
another case or proceeding, judicial or
administrative, involving the same
parties and subject matter, the adverse
party having the opportunity to cross-
examine him.
(g) To have compulsory process
issued to secure the attendance of
witnesses and production of other
evidence in his behalf.
(h) To have speedy, impartial
and public trial.
(i) To appeal in all cases allowed and in the
manner prescribed by law.
Now, Rule 115 this refers to the rights of the
accused at the trial. In all criminal prosecution
the accused is entitled to several rights.
RIGHTS OF THE ACCUSE AT THE TRIAL:
1. To be presumed innocent until the
contrary is proved beyond reasonable
doubt.
Timan-i ha nga kanang akusado he is presumed
innocent, unya kanang usahay makadungog kag
abogado kanang muingon na, “ okey let them file
the case in court and we will present evidence in
court to prove the innocence of my client”. Sakto
ba na? Sayop. Ngano man? There is no need for
you to prove the innocence of your client
because it is presumed.
Sa ato pa kung garepresentar ka ug accused,
kani adto sa diha... you know kanang PAO luoy
kaayo kanang PAO kai dili man na sila kapili ug
kliyente dili pareho sa private practitioners na
mamili. So mao na bisag sad-an ka dawaton jud
na imong case kai presumed innocent man ka.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Mao pud na makaingon sila nga, “ kanang mga
abogado sa mga snatchers, kawatan, abogado sa
rapist, abogado sa mamamatay tao: dili na mao
dili na sila tawgon ug criminals kai presumed
innocent paman sila. He is innocent on the crime
charged... you could not say that he is a rubber
until the contrary is proved.
2. To be informed of the nature and cause
of the accusation against him.
This is one of the most important right of an
accused. Mao nanag hinungdan naganong,
during Preliminary Investigation, padalhan siya
ug subpoena unya attached to the subpoena
katong affidavit sa complainant. That is in
connection of his right to be informed of the
nature and cause of the accusation against him.
Q: Ngano man nga during arraignment
patungaon man gud siya? Ngano man dili siya
puede makapadala ug katong proxy? Nganong
pareho man situation nga magpakasal ka...
puede raba na nga magpakasal ka ug proxy,
unya inig ingon nga you may now kiss the bride
then kiss sad diha?? Puede ra? Dili sad! Personal
appearance jud! Ngano man na?
A: That is in connection with the right of the
accused to be informed of the nature and the
cause of the accusation against him because
during arraignment the information is read to
him. Ing-ana ka importante kaning maong right.
This one of the rights that cannot be
waived. You know in bar gipangutana ang mga
examinees what are the rights of the accused
that can be waived and rights of the accused that
cannot be waived? Daghang rights of the
accused that can be waived, example: the right
to preliminary investigation (that can be
waived!), the right to cross examine (that can be
waived!). Pero one of the rights that CANNOT
be waived is the right to be informed of the
nature and the cause of the accusation
against him, especially during arraignment.
3. To be present and defend in person and
by counsel at every stage of the
proceedings, from arraignment to
promulgation of the judgment.
There was one instance in one case the accused
was a deaf-mute, unya sa korte wai interpreter
nag deaf-mute unya nagtan-aw pud cguro to ang
judge niya, “ ah maldito ug nawong... rapist ning
bataa... so mao to gi.mao-mao lang. Giunsa kaha
to sa arraignment... gihung-hong ( Judge doing
an action on how communication was done to a
deaf-mute). Mao ni sa information “ the
undersign accuses Juan dela Cruz , deaf-mute, of
the crime of rape committed as follows: that on
or before the month of_____ and within the
jurisdiction of the court, the accused then and
there have sexual intercourse with Maria
Agwanta with force, intimidation and against her
will. Contrary to law. Unya imagina bhe kung
giunsa na pag-translate, unya gi-unsa
pagpangutana kung nakasabot ba siya sa gi-
basa...wa man nag-hire ug court interpreter nga
kanang sa deaf-mute. Cge imagina giunsa man
pag arraign bhe...gi-ingani? (judge making acts
on how it was interpreted to the accused deaf-
mute: a bit green joke. Laugh... laugh... laugh
covered the entire room). You know during that
time the death penalty was not yet repealed and
after trial the court convicted the accused of the
crime of rape and imposed upon him the penalty
of death. So, the case was broth to the SC, kai
kaniadto automatic man na bisag di ka mu-file ug
notice of appeal i-appealar na didto sa SC
automatic. Pag-abot did sa SC, “naunsa man
tawon ni?” The right of the accused has been
violated. So, the SC nullifies the decision and
return the case to the court for further
proceedings. So, there must be an interpreter
expert in Sign Language that will interpret for the
accused.
Q: Unsa mai legal basis ana nganong mag-hire
man ug interpreter?
A: that is connection with his right.... take note
this is a Constitutional right, if a right is written in
the Constitution that right must be very
important because the Constitution is a very
Page | 310

basic law. So important is that right that is
written in the Constitution.
The absence of the accused without
justifiable cause at the trial of which he had
notice shall be considered a waiver of his
right to be present thereat. When an
accused under custody escapes, he shall be
deemed to have waived his right to be
present on all subsequent trial dates until
custody over him is regained.
The accused may waive. Kanang right to be
present is both right and a duty. Right in the
sense that duna jud kai katungod, the court
cannot excludes the accused and prevent the
latter to be present in court. At the same time it
is a duty, duty in the sense that the court can
require him; can order his arrest if he fails to
appear in court especially during his arraignment
and especially for purpose of identification by
prosecution witnesses.
The absence of the accused during trial date
is considered as waiver of his right to be
present on that date alone. Sa ato pa he is
entitled to notice for the succeeding trial dates.
Pero kung mu-eskapo na gani na siya that
is considered as a waiver of his right over
the entire proceedings (kung muskapo). Sa
ato pa if it is a waiver of his right over the entire
proceedings, sa ato pa dunay trial in absencia
kung dili siya kapadad-an ug notice dili siya
kareklamo wa siya kapadad.i ug notice.
Nakakita mu sa diperensiya? Kung karon ni-
absent ka (karon naghearing ta) you have
deemed to waive your right to be absent in this
date alone. So, kung pananalitan wa pa
mahuman ron ang hearing niya maghearing ta
sunod simana kinahanglan padad-an ka ug notice
because you have deemed your presence only
for this day. So, di gani ka padad-an ug notice
sunod simana kai di gud ka kabalo, that
proceeding is considered void because you have
the right to be present. Pero kung ni-eskapo gani
ka, pinireso ka for example, bisag dili ka
kapadad-an ug notice sunod hearing valid ra
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
gihapon ang proceedings. Ngano man? Because
you have deemed waived your right to be
presence during the entire proceedings. Pero if
you are only absent in a particular day you have
deemed waived your presence in that date alone
and therefore you are entitled to a notice for the
next settings.
Remember also that trial in absencia is only
valid if the accused has been already
arraigned. If the accused has not yet been
arraigned trial in absencia cannot be had validly.
Upon motion, the accused may be allowed
to defend himself in person when it
sufficiently appears to the court that he can
properly protect his rights without the
assistance of counsel.
Q: Can the accused be allowed to defend
himself? Kung abogado siya puede ba siya ka-
defend sa iya kalugalingon?
A: Puede! He can defend himself in person
provided that it appears to the court that
he can adequately defend his self.
Naa man gud tawo nga hambogero, pananglitan
nga law graduate siya and then ganahan siya
manghambog nga kabalo siya sa balaod, “the
court would like to inform you that youe have the
right to have a counsel, do have the intention to
avail the services of a counsel?” Ingon siya, “no
your honor, I can defend myself”. Peude ba i-
allow sa korte? Yes, the court has discretion to
allow him to defend his self, pero the court has
also the discretion to require him to secure the
services of his counsel. Pero kung ako ana, basta
mu-insist na kabalo siya sige anyway dili man ako
ang mapriso. Basta manghambog! For example,
there was one case law graduate siya niingon
siya, “ your honor I can able to defend myself,
mas abogado pako sa tinud-anay nga abogado”.
“Aw diay, aw sige..sige.”
Look at: Upon motion, the accused may be
allowed to defend himself in person when it
sufficiently appears to the court that he can
properly protect his rights without the
assistance of counsel. Naay gibadlong ani nga
law graduate, tigulang na nagsigeg
pangiha...siyempre nangiilado na ang mga fiscal
kung kina ning tawhana. Gi-warningan ni siya sa
SC tungod nga siges pangiha...muabot ra ba
didto sa SC...mga fiscal pangihaan. Pananglitan
mu-file siya ug kaso unya i-dismiss sa fiscal kana
nga nadismiss na nga kaso final na nakaso, unya
niabot ang punto nga nga naglagot na ang SC gi-
warningan na siya unya gipapriso na siya. Matod
pa sa SC, he who lawyer’s for himself is a fool for
a client. A repetition of an offense shall be dealt
more severely.
4. To testify as a witness in his own behalf
but subject to cross-examination on
matters covered by direct examination. His
silence shall not in any manner prejudice
him.
Now, the accused has the right to remain silent. If
he choose to remain silent during the entire
proceeding, even during arraignment (gikan sa
arraignment padung didto sa promulgation
puede siya mutak.om sa iya baba). And his
silence shall not be taken against him.
However if he choose to testify in his behalf that
is also his right, he cannot be denied. But if he
chooses to testify for himself and take the
witness stand then he can be subjected to
cross examination. However, the cross-
examination shall be limited only to matters
testified to by him, he cannot be examine on
collateral matters. Mao na ang kalainan sa
cross examination sa ordinary witness ug kung
ang witness kai ang accused.An ordinary
witness can be examine on matters testified to
by him and also on another collateral matters
( katong wai labot bitaw nga nay gamai
relasyon).
5. To be exempt from being compelled to be
a witness against himself.
Page | 311

As what I have said if the accused not to testify
for himself that is allowed, he cannot be
compelled to testify.
Lahi sa civil case: ikaw plaintiff unya gikiha
nimu ang defendant nga nakautang nimu puede
to nimu patestiguson. Plaintiff ka; presentation of
evidence na ron, “ your honor my first witness is
the defendant himself”. Dili siya ka-refuse
because any plaintiff can use as his witness the
adverse party. Natural kai contra man na nimu
siya magmatngon jud ka, ang iya ipnangnulti
kontra na nimu.
Pero sa criminal case, the prosecution cannot
compel the accused to witness against himself.
Look at this case of Chavez vs. CA, 24 SCRA
663. Aligre ning kasuha, ang prosecution ni-
presentar ug ibedinsiya unya paghuman
pagpresenta sa first witness ingon dayon ang
prosecution ingon dayon, “your honor our second
witness is the accused himself”. Ingon dayon ang
counsel sa accused, “we object because the
accused has the right against self incrimination”.
Ingon dayon ang prosecution, “ your honor naa
man na sa rules of evidence that a party can
make the adverse party as his witness, your
honor the accused cannot refused to take the
witness stand because under the rules of
evidence a party can make the adverse party his
witness and regarding the right against self
incriminating question could only be raised after
a question is asked but I have not yet ask the
question what I am doing now is to call the
accused to the witness stand, I have not yet
asked the question. He can raise that objection if
I ask the question and if the defense counsel
finds that my question is incriminating then that
would be the time he could raise his objection.”
Nahiabot sila sa SC kung puede ba mapatawag
ang accused as a witness.
The SC said: NO! The accused can refused to
take the witness stand but an ordinary witness
can refused to take the witness stand.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
6. To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence the
testimony of a witness who is deceased,
out of or cannot with due diligence be
found in the Philippines, unavailable, or
otherwise unable to testify, given in
another case or proceeding, judicial or
administrative, involving the same parties
and subject matter, the adverse party
having the opportunity to cross-examine
him.
Kaning right to cross-examination tu-a ni sa rules
of evidence, so ang accused has the right to
cross-examine but of course there is an
exception: katong mga exception sa mga hearsay
rule. For, example katong dying
declaration...unsaon man nimu ug cross-examine
patay naman to siya; katong res gestae; katong
testimony of witnesses given in another judicial
proceedings. For example dunay witness sa
accused nga patay na, pananglitan ibutang nato
ang accused kai pulis, kanang pulis government
employee man na siya, kung makacomment na
siya ug crime dunay atleast duha kakaso nimu:
criminal case then kaluhaon sad na ug
administrative case. Pulis nakapusil, ang iya
gidakpan iya gi-salvage. Kihaan siya ug murder
and aside from that kihaan siya ug
administrative: grave misconduct. For example
katong witness batok niya nakatestify didto sa
NAPOLCOM, so narecord iya testimony, sa diha
nga mu-testigos na unta siya didto sa capitol na-
unsa man na nga gi-atake man na sa iya high
blood...patay! kai pwerte mang kaon ug inasal
katong pasko. Gisultian ta ba mo na ang bukog
sa inasal maka-high blood na? Katong maong
witness ni-attend ug party unya inig abot didto sa
parte bukog nlang sa inasal ang nabilin...perting
laguta...gi high blood. Ang nakahigh blood niya
mao tong bukog, so mao tong namatay.
Q: katong iyang testimony sa NAPOLCOM puede
ba to siya magamit sa murder case?
A: yes, puede! Mao na siya sa letter F: Either
party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or
cannot with due diligence be found in the
Philippines, unavailable, or otherwise unable to
testify, given in another case or proceeding,
judicial or administrative, involving the same
parties and subject matter, the adverse party
having the opportunity to cross-examine him.
That is the exception to the rule because
generally the accused has the right to cross
examine. So kung namatay na to ang witness to
be presented pero naka-cross examine na to sa
maong kaso involving the same parties unya
similar issues the testimony of the witness will be
presented in that criminal case even if the
accused can no longer cross examine him.
7. To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his behalf.
So, kung duna siyay witness unya padili-dili ug
testify, the court can issue warrant for his arrest.
8. To have speedy, impartial and public
trial.
9. To appeal in all cases allowed and in the
manner prescribed by law.
Impartial: If the accused noticed that the judge
handling the case is biased against him, he can
ask that the judge be replaced of that the judge
should inhibit. Actually that right is available to
the defense and the prosecution.
Regarding right against self incrimination, you
should remember what you have learned in
political law. For example you may be asked
regarding the limits of self incrimination,
remember that case of Villaflor vs. Summers,
41 PHIL 62. In that case the Supreme Court said
that right against self incrimination is not limited
only to testimonial evidence but also to
production of incriminating documents or things.
Another: regarding purely physical mechanical
acts are covered under the right against self
incrimination.
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Another decision that you should read (this come
out in the bar): the case of Beltran vs. Samson,
53 PHIL 57.
Now the right of the accused to be present during
the trial can be waived, puede siya mu-manifest
nga dili siya matunga during the trial (that is
within his right to waived his right to be present)
and even during the identification by the
witnesses, provided that he has conditionally
admitted that he is the same person charged in
the complaint or the information and the
witnesses can identify him.
Diba niingon man ta ganiha nga puede siya mu-
waive his right to be present pero dunay mga
instances nga puede siya pugson sa korte
pagpatunga, usa ing-ana during arraignment
ikaduha kanang sa identification of witnesses.
Kanang identification of witnesses ma-waived
niya na (sa ato pa puede ang court dili mu-order
niya pagpatunga sa korte), provided he would
admitted unconditionally that he is the
same person charged in the information or
the complaint and that every time that
witness will mention his name he would
have to admit that the same would refer to
him. Kana manggud identification during the
trial ang purpose ana is that person present here
in court is the same person who committed the
crime. So, kung mu-admit siya nga siya jud na
ang gi-charged sa information, mu-admit siya
that the witnesses can identify him unya mu-
admit siya nga every time the witnesses will
mention to him and that the same would refer to
him... thus, there is no need to him to be present.
So, puede ra.
Regarding about right against self-incrimination,
you should remember what you have learned in
Pol.Law, for example you would be asked about
the limits of self-incrimination. Remember that
case of Villaflor vs. Summers 41 Phil 62 re: Self-
Incrimination. In that decision the SC said that
right against self-incrimination is not limited only
to testimonial evidence but also to production of
incriminating documents or things. You read that,
another daghan pa nang nindot na principles, re:
mechanical acts are they covered?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Another case which you should read, is Beltran
vs. Samson, 53 Phil 570>>> you read that
decision ha, if dili na siya mubalik sa bar this
year, possibly na mubalik siya sa midterm [scary
hehe].
Now, the right of the accused to be present
during the trial can be waived. Pwede siya mu-
manifest na dili siya mutunga during the trial,
that is within his right to waive his right to be
present, even during the identification of
witnesses, provided that he to
unconditionally admit that he is the same
person charged in the complaint or
information and that the witnesses can
identify him. Diba niingon man ta ka ganiha na
pwede siya mu waive sa iyang right to be
present, pero dunay mga instances na pwede
siya pugson sa korte sa pagtunga. Usa niana
kanang arraignment, identification of
witnesses>>> kaning identification of witnesses
pwede gihapon ma waive niya na, provided he
would admit unconditionally that he is the same
person charged in the information or complaint.
And that everytime the witnesses would mention
his name, he would have to admit that the same
would refer to him.Kana man gung identification
sa ato ng gikasulti during the trial ang purpose
ana is to prove that this person present here in
court is the same person who committed the
crime. Mao nay purpose ana. So kung mu-admit
siya nga siya jud ang gi-charge diha sa
information, mu-admit siya na the witnesses can
identify him, unya mu-admit siya na everytime
the witnesses would mention his name and that
the same would refer to him, then there is no
more need for him to be present.
So pananglitan, ang accused nananghid nga dili
siya ka-attend anang hearing kay adto siya
Manila, ni object ang pikas, ah your Honor we
object bec next setting we will be presenting an
eye witness and identification of the accused is
every important. The prosecution insist that he
should be present next time/setting so if ikaw you
can just say, Your honor if that is the problem of
the prosecution, the accused is willing to admit
that the witnesses to be presented next setting
can identify the accused, and that every time the
accused mentions his name, we admit without
any condition that the same would refer to the
accused. So if that would be the case then the
presence of the accused would be excused.
Nganu dili man sad siya mutunga, just imagine
muadto sa Manila unya dako kaayo ug gasto ang
pagbyahe-byahe, example importante kayo unya
naa pa siyay importanteng adtoon didto unya
kana pa jud petsaha,natumong,so pwede ra.
Or, another situation gi-schedule ug trial,wala
makatunga kay imong kliyente nay gi-adto na
importante kayo, unya ni move na kay
kinahanglan jud lage na present siya ang
prosecutor mo-move na na-icancel ang iyang bail
kay aron siya ipadakop kay nganu wa siya
mutunga, in order to avoid for your client to be
arrested, pwede ka mu-stipulate or mu.admit na
ang mga witnesses makaidentify niya and that he
is the same person charged in the complaint or
information.
Let us now go to arraignment and plea.
RULE 116
ARRAIGNMENT AND PLEA
SECTION 1. Arraignment and plea;
how made.—
(a) The accused must be
arraigned before the court where the
complaint or information was filed or
assigned for trial. The arraignment
shall be made in open court by the
judge or clerk by furnishing the
accused with a copy of the complaint or
information, reading the same in the
language or dialect known to him, and
asking him whether he pleads guilty or
not guilty. The prosecution may call at
the trial witnesses other than those
named in the complaint or information.
(b) The accused must be
present at the arraignment and must
personally enter his plea. Both
arraignment and plea shall be made of
record, but failure to do so shall not
affect the validity of the proceedings.
(c) When the accused refuses
to plead or makes a conditional plea, a
plea of not guilty shall be entered for
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him. (1a)
(d) When the accused pleads
guilty but presents exculpatory
evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall
be entered for him. (n)
(e) When the accused is under
preventive detention, his case shall be
raffled and its records transmitted to
the judge to whom the case was raffled
within three (3) days from the filing of
the information or complaint. The
accused shall be arraigned within ten
(10) days from the date of the raffle.
The pre-trial conference of his case
shall be held within ten (10) days after
arraignment, (n)
(f) The private offended party
shall be required to appear at the
arraignment for purposes of plea
bargaining, determination of civil
liability, and other matters requiring
his presence. In case of failure of the
offended party to appear despite due
notice, the court may allow the accused
to enter a plea of guilty to a lesser
offense which is necessarily included in
the offense charged with the
conformity of the trial prosecutor
alone, (cir. 1-89)
(g) Unless a shorter period is
provided by special law or Supreme
Court circular, the arraignment shall be
held within thirty (30) days from the
date the court acquires jurisdiction
over the person of the accused. The
time of the pendency of a motion to
quash or for a bill of particulars or
other causes justifying suspension of
the arraignment shall be excluded in
computing the period, (sec. 2, cir. 38-
98)
The accused must be arraigned before the court
where the complaint or information was filed or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
assigned for trial. The arraignment shall be made
in open court by the judge or clerk by furnishing
the accused with a copy of the complaint or
information, reading the same in the language or
dialect known to him, and asking him whether he
pleads guilty or not guilty>>> Kani naa na say
mga kaso nahi-abot ngadto sa SC, kay nganu
man,kay tungod ang court wala mangutana kung
ang accused nakasabot bah. For ex., wa jud na
siyay grado, unya kanang information baya I-
ninglis baya na unya dretsuhon rana ug basa sa
clerk of court or court interpreter, nya waka
mangutana kung makasabot bana siya ug
ininglis. So unsay buhaton nimo, that is
mandatory, that is compulsory on the part of the
accused to ask whether he understands English.
Pangutan-on jud na bec if the information is
read to the accused in English and the
accused does not understand English, the
arraignment is VOID. And if the
arraignment is VOID the entire proceedings
are also VOID.
Naay mga kaso ana naabot sa SC, esp if the
accused is pleading guilty to the charge .Kung
mu-plead guilty na gani siya, kinahanglan
maniguro gyud ang korte kung nakahibaw ba siya
sa iyang gibasa. Unsaman say gibasehan anina it
must be read in the language known to him?>>>
Nganu man, kato gihapon, constitutional right,
the rights of the accused to know the nature and
cause of accusation against him. So impt that if it
is violated then the proceedings would be void.
So problema nah, daghan na ra ba mga
foreigners diri, for ex., mga Koreano, mga
buluyagon ra ba kaayong dagko murag naa sa
ilaha, kita didto muadto ta sa ilaha, pinghoy
kayo, sila diri murag nakatag-iya ug Pilipinas
[hehe korek ka judge]. So makasa unya na sila,
so kelangan gyud ang court mangita ug
interpreter sa ilang language. So asa mana
manguyo pd ang korte,siguro didto sa ilang
embassy or ilang consulate. There was one
instance dunay Vietnamese gikiha ug assault,
nagpautang unya ang maestra wa
mubayad,gisud didto sa kwarto gihapak ang
maestro kay wa mubayad. Kihag direct assault.
So nag problema mi ug asa mig court interpreter,
Vietnam wala mana silay consul diri. But in that
case we have to cancel the arraignment and
reset it to another date, unya duna may
Vietnamese na pari so mao nay gihimo namong
interpreter. Among gipa-sworn in na he would
faithfully translate the info to the dialect, mao na
nadayun pagkasunod hearing. Wa man silay kuan
diri unya ug adto pa sa Manila kung duna man
gani silay kuan sa Manila dako kayo ug
gasto,kinsa may mugasto ana,plete sa ilang
interpreter padong ngari mas mayo pd naa sila
pari misyonaryo nisugot ra pd nga himuon ug
interpreter.
So that is how important, then the prosecution
under Sec 1 can call on witnesses even if they
are not listed in the information or complaint.
Kana man gud information/complaint kung
nakakita namo ug ana,gipanglista man gud diha
ang mga ngan sa witnesses sa prosecution but
that does not mean that it is an exclusive list of
witnesses bec the prosecution can call those
witnesses even if they are not listed in the
information.
The accused must be present at the arraignment
and must personally enter his plea. Both
arraignment and plea shall be made of record,
but failure to do so shall not affect the validity of
the proceedings.>>> No substitution is allowed.
So pareho ni ug kasal, way substitution. Now
dunay, samtang nag.tan-aw ko atong
arraignment ni former Pres. Arroyo gi-waive ang
reading sa information, so nakapangutana ko
kung pwede ba diay na ma-waive. Gi-allow pud
sa korte, gi allow sa RTC, kato bang sa election
code violation bah. So gi-waive ang reading,
gibutangan lang diretso ug not guilty, I don’t
know if that was valid. Pero kung ako pa ato, dili
ko musugot kay basin unya ug i-question later
on.
When the accused refuses to plead or makes a
conditional plea, a plea of not guilty shall be
entered for him. So if you will be asked what are
the instances when the plea of NOT guilty shall
be entered in the record?
1. When he expressly says that he is
not guilty>>>kana man gung
arraignment basahan man siya ana, for
ex., information for murder, the
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undersigned public prosecutor accuses
Juan Dela Cruz of the crime of murder
committing as follows xxx that on or
about, unsang petsaha xxx in the City of
Cebu and w/in the jurisdiction of this
Hon.Court the accused willfully,
unlawfully and feloniously shot at XXX
hitting him at different parts of his body
resulting in his instantaneous death. So
pangutan.on dayun,unsa man ka
nakasabot ka gibasa, do you understand
the info and what is your plea? So if
muingon siya na not guilty of course a
plea of not guilty shall be entered into
the record. Pananglitan dili siya
mutingong, nisiga ra jud ang
mata,unsa man guilty or not guilty?
Silence means yes, No a plea of not
guilty shall be entered for him. But
what if muingon siya guilty but I did
it in self-defense, unsa may i-enter
nimo, a plea of not guilty shall be
entered. So look at these circumstances
wherein a plea of not guilty shall be
entered.
Now in one case, the accused entered a plea of
guilty. The charge is homicide. Unya, after
pleading guilty,the accused requested the court
that he be allowed to present evidence in order
to prove mitigating circumstances. Nakahibalo
namo, unsay trabaho sa mitigating
circumstances diba? Makaunsa manang
mitigating circumstances, makalower sa penalty,
unya ni plead guilty na gud siya daan, unya ni
plea na gud siya daan so kung paresan na siya
ug lain diba, makalower by one degree, maka pa
ubos. So he asked the court that he be allowed to
present evidence in order to prove mitigating
circumstances, some more mitigating
circumstances. Voluntary surrender, the court
allowed the accused to present evidence for the
purpose of proving mitigating circumstances
however, in the course of presenting evidence,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
instead of presenting mitigating circumstances,
the accused, the evidence of the accused tend to
prove self-defense instead of mitigating w/c is
justifying. Lahi manang justifying,lahi manang
mitigating, after the accused presented evidence
w/c prove self-defense, the court rendered
decision acquitting the accused. Now the
question is whether the court is correct in
rendering the decision of acquittal. The
prosecution questioned the decision bec accdg to
the prosecution it was not given an opportunity
to present evidence, so the case reached to SC,
the issue was, is the court correct in acquitting
the accused? >>> Accdg to SC, the answer is NO
bec the court has deprived the prosecution to
present its evidence. Accdg to SC, what the trial
court should have done is a to withdraw the
earlier plea of guilty of the accused and change it
to a plea of not guilty bec he presented self-
defense. And after withdrawing his plea of not
guilty, after the accused has finished presenting
his evidence, the prosecution should have been
allowed to present its evidence. Pareho bitaw ug
reverse trial. That is the ruling of SC in the case
of PP vs. Balisakan Aug. 31, 1996.
Another decision, there are 3 accused, they were
all charged with robbery w/ force upon things,
lungkob. Then, the one of the accused was
assisted by a lawyer from PAO and the other 2
accused were assisted with private lawyers. The
one assisted by PAO, upon arraignment pleaded
guilty to the charged but the court did not render
decision bec the other 2 pleaded not guilty so the
court requires the prosecution to present
evidence so the court can only render one
decision for the three accused. However after
the prosecution presented evidence and so as
the defendants, the court rendered decision
acquitting all the accused. The prosecution
protested to the decision bec why is it that the
accused who already pleaded guilty was also
acquitted when in fact he admitted in open court
that he is guilty. So the prosecution filed a
petition for certiorari with the SC and so what
was the decision of SC, accdg to SC there is no
rule that provides that simply bec the
accused pleaded guilty his conviction
automatically follows. Accdg to SC additional
evidence other than the plea of guilty maybe
admitted to convince the judge that it is
intelligently made. In other words, it is w/in the
discretion of the court even if the accused
pleaded guilty of the charge, it is still w/in the
discretion of the court to require the prosecution
to present additional evidence to prove the guilt
of the accused….>>> Sa ato pah, ni plead guilty
pero sa tan-aw sa court there is no need to
present additional evidence, pwede rah, iyang
conviktuhon unya iyang sentensiyahan. [PP vs.
Mendoza, 231 SCRA 264].
Then “When the accused pleads guilty but
presents exculpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty shall
be entered for him”. Then “When the accused is
under preventive detention, his case shall be
raffled and its records transmitted to the judge to
whom the case was raffled within three (3) days
from the filing of the information or complaint.
The accused shall be arraigned within ten (10)
days from the date of the raffle. The pre-trial
conference of his case shall be held within ten
(10) days after arraignment”.
During arraignment, the private offended party if
there is any, is required to attend. The term
require here does not mean compulsory, bec the
private complainant may not attend during
arraignment. Now what is the reason why the
private complainant if there is any is required
during the arraignment. His presence is required
for purposes of plea bargaining. Bec during
arraignment the court can already inquire if the
parties will enter into plea bargaining agreement.
What do you mean by plea bargaining
agreement? >>>Is a equivalent to compromise
agreement in civil cases. Bec compromise
agreement is prohibited in criminal cases what is
allowed is plea bargaining agreement.>>>
what do you mean by this, the parties in a
plea bargaining agreement shall arrive into
an agreement whereby the accused is
allowed to plead guilty to a lesser offense.
Which necessarily included in the charge or
for the accused to plead guilty if there are
several charges the parties could agree
that the accused would plead guilty to just
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one charge or some of the charges and the
rest would be dismissed.
PLEA BARGAINING >>>So that is a process
where the accused and the prosecution in a
criminal case work out a mutually satisfactory
disposition of the case subject to the approval of
the court. Such as pleading guilty to a lesser
offense, necessarily included in the charge or
pleading to one or some of the cases filed against
the accused. So that is why during the
arraignment the presence of the private
complainant is required. However if the private
complainant despite notice fails to appear, then
the public prosecutor is deemed authorize by her
to enter plea bargaining agreement with the
defense. In other words, if the private
complainant fails to appear despite notice, or
even during pre-trial the public pros., the consent
of the public prosecutor to the plea bargaining
agreement would be enough. Kanang mga plea
bargaining agreement dunay upat na muhatag
ug consent. Kinsa maning upat?
a. Consent of the Accused
b. Consent of the Public Prosecutor
c. Consent of the Private
Complainant if any
d. Approval/consent of the court
Wa gani ning upat, the plea bargaining
agreement is not valid or VOID. Pero usbon nako,
bisan walay consent sa private complainant,
provided he was notified of the arraignment or
pre-trial, the consent of the public prosecutor
alone would be sufficient. Unya unsa manang
maong crime na iyang, any lesser offense, no dili
any lesser offense. The lesser offense to w/c the
accuse should plead guilty should be lesser
offense w/c is necessarily included in the offense
charge. Meaning that lesser offense is related to
the offense charge. For ex., the accused is
charged with murder, the one possible lesser
offense, is homicide. Is homicide necessarily
included in murder? YES,bec some of the
elements in homicide are present in murder.
Another, unsa pa may laing lesser offense,
reckless imprudence resulting in homicide that is
necessarily included in the offense charge. Or if
the accused is charge with homicide? Unsa may
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
lesser offense he can plead guilty? Reckless
imprudence resulting in homicide. Dili attempted
homicide,nganu man,patay naman ang biktima.
Rape,unsa may lesser offense? Aw kana
attempted rape, pwede sad acts of lasciviousness
kay nganu man bec lesser offenses that are
necessarily included in the offense charged.
Kaniadto saw ala pay year 2000 kay na revise
ning Rules of Court, you know sa tanang
provisions sa rules of court, ang kaning
provisions sa rules on criminal procedure ang
cgeng usab-usab. First na usab in 1995 then
pagka yr 2000 unya major jud. Kaniadto before
year 2000 pwede ra maka plead guilty ka ug any
lesser offense, basta any lesser offense, dili
kelangan necessarily included, so for ex., gi-
charge ka ug rape, pwede ka mu plead guilty for
illegal discharge of firearm. Liman ka illegal
discharge of firearm w/out intent to kill
[wahahaha]. BUT now dili na,it is now necessary
that the lesser offense pleaded must be
necessarily included in the offense charge.
Unya kaning plea barganing anus-a mani pwede
mahitabo.Usa ni.ana kaning arraignment,pwede.
So instead of pleading guilty to the charge or not
pleading guilty to the charge, pwede siya mu-
enter into plea bargaining. Another, point nga
dunay plea bargaining is during pre-trial. There
can be plea bargaining. Another kanang initial
presentation of evidence sa prosecution provided
that prosecution has not yet started presenting
its evidence. Pareho bitaw atong plead guilty na
macounted pasiya as mitigating,pwede, naa lay
issue pareho atong sa ka Garcia,not the Garcia
here katong comptroller sa military? Katong,
general, katong comptroller gipasanginlan nga
naka-misappropriate ug almost half billion more
less, he was charged with plunder, the
prosecution presented evidence already, then the
defense, entered into plea bargaining with the
prosecution for the crime of malversation. The
prosecution agreed but legal observers, who are
concerned with the proceeding questioned the
validity of the plea bargaining agreement bec
that was not proper bec the pros has already
presented evidence. That should have been
proper if done during arraignment, during pre-
trial or during the initial presentation of evidence
of the prosecution but before presentation of
evidence.
Apan duna pay kaso ang SC na nahimong
exception to the rule, where the prosecution
nakapresentar na ug ebidensiya unya ang plea
bargaining gi allow gihapon sa SC. Yes there is
that case involving a murder case,where/in the
prosecution has already rested its case, the
parties entered into plea bargaining for the
crime, of homicide, that was questioned before
the SC but the SC that would be alright. Bec
accdg to SC plea bargaining could still be allowed
despite the fact that prosecution rested its case
bec afterall the prosecution failed to prove the
elements of the crime of murder. What the
evidence of the prosecution proved is only the
crime of homicide.>>> So basin pud,mao ni siya
ang gibasehan sa kaso aning Gen. Garcia, basin
lang pud kay wa man ta masuhito aning kaso ni
Gen.Garcia. Kung mao na ang kaso gi-charge
plunder pero ang ebidensiya ni prove lang ug
malversation, possibly sad.>>>But this is just to
show you na nay kaso na nakapresent na ug
evidence ang prosecution pero gi-allow lang
gihapon ang plea bargaining kay afterall wala
man pd kuno ma prove ang crime charged.
Unless a shorter period is provided by special law
or Supreme Court circular, the arraignment shall
be held within thirty (30) days from the date the
court acquires jurisdiction over the person of the
accused. The time of the pendency of a motion to
quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be
excluded in computing the period. Then Sec. 2
we have discussed this already this is plea
bargaining.You should also remember what you
have learned in your criminal law regarding
pleading guilty.Kay dunay mga higayon, diba nag
discuss man pud ta ug voluntary plea of guilty
didto sa crim law. Pwede pud na ipangutana sa
remedial.
Is there a need to amend the complaint or the
information? Pananglitan ang accused gi-charge
ug murder unya ni plead guilty siya ug reckless
imprudence resulting in homicide? Is there a
need to amend the info? No need. The info is
deemed amended.
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Then Sec 3, plea of guilty to capital offense, wana
tay capital offense karun.
Plea of guilty to non-capital offense; reception of
evidence, discretionary.—When the accused
pleads guilty to a non-capital offense, the court
may receive evidence from the parties to
determine the penalty to be imposed .But if the
accused plead guilty to a non capital offense,
lesser than death penalty, the presentation of
evidence, to prove the guilt of the accused is
discretionary upon the court. Under Sec 4. The
court may require the parties,not just the
prosecution but the accused as well but the
purpose of the presentation is not to prove the
guilt of the accused but to establish the presence
of mitigating/aggravating circumstances.
SEC. 5. Withdrawal of improvident plea of
guilty.—At any time before the judgment of
conviction becomes final, the court may
permit an improvident plea of guilty to be
withdrawn and be substituted by a plea of
not guilty.
Then, withdrawal of a plea of guilty,if the accused
during arraignment make a plea of not guilty
could he later on change it to a plea of guilty?
What if during arraignment he said not guilty but
during pre-trial ingon siya guilty nalang ko.
Pwede na,pwede. He can withdraw his earlier
plea of not guilty to guilty. Pero kung makaminus
ba ang iyang pag-angkon sa silot, awh depende
na na sa circumstances. Kay kung muplead guilty
na siya diri na in the middle of the trial, ah dili
nana mitigating. What about if during
arraignment he pleaded guilty, can he changed it
to not guilty? Yes, later on, he can withdraw of his
plea of guilty to not guilty if he can convince the
court that it was IMPROVIDENTLY DONE. Meaning
it was not intelligently done. Ex., he is charged
with murder, pilay penalty sa murder? Reclusion
perpetua. Pananglitan, dunay nagtambag niya
didto sa selda na mas maayong angkonon kay
mas ma-minus ang silot, kay ingon siya “kebalo
ka bay, mayo diay ning muagkon ta ma minus
atong silot, ako bitaw gi-charge kog homicide
naminus-, imbes unta to 12-20, gihatagan ra man
ko sa judge ug 6 ka tuig, Ikaw mao nalang ng
imuha, pila imuha,40? Maayo nalang gd ng ma
minus tagaan lang kag 20, katunga na gud na”.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Ingon dayun ang accused, bitaw nuh, ako lang
kaha ning angkunon kay liman ka anang 20 ka
tuig deduction,kadako na ni ana.---Iyang gi-
angkon, oy dili man diay pwede maminusan---kay
indivisible man diay. Pag ingon sa court, the court
hereby finds the accused guilty and hereby
sentences him w/ reclusion perpetua, hilak siya
oy. So pwede pa na ma withdraw niya? Yes, mao
nay gitawag ug improvident plea of guilty. The
court may allow him to withdraw his improvident
plea of guilty, anus-a man? >>>BEFORE THE
JUDGMENT OF CONVICTION BECOMES FINAL.
Unya remember in the rules of evidence,
improvident plea of guilty withdrawn
cannot be used as evidence against the
accused. Is it a matter of right to the accused to
withdraw his improvident plea of guilty? The
answer is NO. The court may, sa ato pa it is
within the discretion of the court to allow him to
withdraw his plea of guilty or not.
SEC. 6. Duty of court to inform accused
of his right to counsel.—Before
arraignment, the court shall inform the
accused of his right to counsel and ask him
if he desires to have one. Unless the
accused is allowed to defend himself in
person or has employed counsel of his
choice, the court must assign a counsel de
oficio to defend him. (6a)
During arraignment, if the accused appears
without any counsel, the court has 4 duties:
i. Inform the accused of his
right to counsel
ii. Ask him whether he would
avail the services of a counsel
[counsel de parte]
iii. If accused says Yes…>> Then
court has to give him time to
hire such lawyer
iv. If the accused says he cannot
afford a counsel of his own
choice..>> Duty to appoint
counsel de officio
Any lawyer, the court can appoint any lawyer
present in the court room to act as counsel de
officio for the accused. So those are the 4 duties
of the court. So that is Sec.7
SEC. 7. Appointment of counsel de oficio.—
The court, considering the gravity of the
offense and the difficulty of the questions
that may arise, shall appoint as counsel de
oficio such members of the bar in good
standing who, by reason of their
experience and ability, can competently
defend the accused. But in localities where
such members of the bar are not available,
the court may appoint any person, resident
of the province and of good repute for
probity and ability, to defend the accused.
Oh timan-I ni ninyo ninglast par. sa Sec 7 kay diri
mu maka-kwarta kung dili mu makapasar sa bar.
“But in localities where such members of
the bar are not available, the court may
appoint any person, resident of the
province and of good repute for probity and
ability, to defend the accused.”
Time to prepare for trial, ah reasonable time.
Unya remember that the court can appoint any
lawyer to counsel for the accused. A PAO lawyer
can be appointed by the court to assist an
accused who is rich. Ang atong nahibaw-an
ang tabangan sa PAO kana ra man jud dili
ka-afford pero kung ang korte na gani ang
musugo, bisan pa kung datu kanang maong
akusado pwede nga maka sugo, maka
appoint ang court sa PAO. That has been
resolved several times by the SC, one of which is
the case of PAO et al. vs. Sandiganbayan [Feb 15,
2008]. Now you remember the cases of the
Estradas, they were charged before
Sandiganbayan, charged with plunder, now the
lawyers withdraw from the case and bec the
Sandiganbayan do not want to delay the
proceedings in the case, wa man sila mang hire
ug replacement sa ilang mga lawyers na ng
withdraw, it is a sign of protest gud kay matud
nila biased ang mga justices sa Sandiganbayan,
so they did not hire any lawyers to replace their
lawyers who withdraw. So the Sandiganbayan
hired the services of PAO lawyers, the PAO
refused questioned the order of the
Sandiganbayan arguing that the accused are rich
and have the capability to hire their own lawyers.
Page | 317

And that motion was denied by the
Sandiganbayan, they go to SC but SC sustained
the Sandiganbayan. That the court can appoint
PAO lawyers as counsel de officio for the accused
even if they are rich to safeguard the
constitutional rights to be heard by themselves or
counsel. But take note that right to counsel is
absolute. But option to secure the services of
counsel is not…. Pananglitan ang accused ni
ingon nga gusto ko ug abugado, unya pangutan-
on dayun sa korte, do you have the desire to
secure the services of your own lawyer? Ingon
dayun ang accused, YES, Okay we will cancel the
arraignment today and we will give you time to
secure your own counsel. Next time, comes now
the date for the arraignment, wa gihapoy
abugado,oh where is now your lawyer? Your
honor, I was not able to secure the services of my
lawyer bec my lawyer is so busy. Who is your
lawyer? I want to secure the services of Justice
Serafin Cuevas and no one else. Can you not look
for another lawyer bec Jus. Cuevas is so busy?No
your Honor, I want his services and no one else.
Its him or never. [hahaha atot oy]. Can the court
appoint counsel de officio for the accused? The
answer is Yes, that cannot be considered as
restrictions to the right of the accused to
counsel. Accdg to SC, right to counsel is
absolute but his right to secure the services
of counsel de parte is not.The Court may
restrict his right to obtain a counsel de
parte on an attorney he cannot afford or
not a member of the bar or who declines to
represent him for valid reasons such as
conflict of interest. [read also the case of
PP vs Larranaga- 421 SCRA 530]
Read also the case of PP vs Serzo Jr. [June 20,
1997]
SEC. 9. Bill of particular — The accused
may, before arraignment, move for a bill of
particulars to enable him properly to plead
and prepare for trial. The motion shall
specify the alleged defects of the complaint
or information and the details desired
Now under Sec. 9….In criminal case, the
accused also has the right or may file a
motion for bill of particulars before
arraignment. If the accused finds that there
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
are allegations in the info that are vague
that needs to be particularized, the accused
can file a motion for bill of particulars, but
that must be done before arraignment. For
ex., the accused is charged with rape, unya
gibutang lang didto na sometime in Aug. 2012
and the accused wanted the prosecution to
particularized what date in August, what
particular date in Aug., so if he wants the
prosecution to state the particular date the
accused can file a motion for bill of particulars.
However motion for bill of particulars is
applicable only to cases filed already in court, the
same cannot be availed of in the prosecutor’s
office.
Now under Sec 10, the accused can also file for
the Production or inspection of material evidence
in possession of prosecution. This is equivalent to
modes of discovery pero dili jud ni siya modes of
discovery.
SEC. 10. Production or inspection of
material evidence in possession of
prosecution.—Upon motion of the accused
showing good cause and with notice to the
parties, the court, in order to prevent
surprise, suppression, or alteration, may
order the prosecution to produce and
permit the inspection and copying or
photographing of any written statement
given by the complainant and other
witnesses in any investigation of the
offense conducted by the prosecution or
other investigating officers, as well as any
designated documents, papers, books,
accounts, letters, photographs, objects, or
tangible things not otherwise privileged,
which constitute or contain evidence
material to any matter involved in the case
and which are in possession or under the
control of the prosecution, police, or other
law investigating agencies. (11a)
… they can file a motion for the court to issue an
order for the prosecution to produce and to allow
them to photocopy or inspect or take pictures of
any written statement given by the complainant
and witnesses in any investigation. So mao gyd
ni. Offshoot ni cya sa kaso ni webb. Okay so pwd.
Which are in the possession or under the control
of the prosecution, police or other law
investigating agencies.
In fact even record during the preliminary
investigation could be ordered by the court, could
be produced in court upon motion of the accused.
Section 11. This are the instances wherein
arraignment could be suspended on motion by
the proper party. Could be the accused it could
be the prosecution.
What are the grounds for the suspension
of the arraignment?
1. The accused appears to be suffering from
mental illness which would unable him to
fully understand the charge and in such a
situation the court shall order that the
accused be examine by a doctor and, if
necessary, he shall be confine in the
hospital.
o So if the recommendation of the
Doctor is to the effect that the
accused is not ready to stand
trial then the arraignment has to
be suspended.
2. And another ground is if there is a
prejudicial question.
o I have explained this already. If
there is prejudicial question and
take note of the elements. Kai
kung maghisgot na gani ug
prejudicial question be sure to
sight the elements. There are
only 2 elements. If there is a
prejudicial question the
arraignment has to be dismiss
upon motion of the accused.
3. Another is if there is a pending petition
for review of the prosecutor either
pending before the Department of Justice
Secretary, or the Office of the President.
However, the suspension shall not be
more than 60 days.
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o After the lapsed of 60 days even
if there is no… whether or not
the DOJ Secretary has already
ruled on the appeal the accused
has to be arraign, bsan ug wa
pay ruling sa DOJ Secretary.
Now, unsa mahitabo kung
magpa.arraign ang accuse nya
wa pa gd mu lapsed sa 60 days?
His appeal would be considered
waived. Wa pa mn mulapsed ang
60 days ba, wa p gd
masuspended. Pero kung
nasuspenso na ang arraignment
nya ni lapsed na ang 60 days
unya g.arraign na ang accuse kai
60 days ra ang gihatag d ni cya
consider nga waive kai
naka.avail nmn cya iya nmn na
raise. Ang problem dha sa DOJ
kai etake years. Duna koy cliente
gi.filan ug libel we dis.agree with
the findings of the prosecutor,
gi.apilar namu sa DOJ, unya
maldito mn nang mga piskal. Inig
release nila anang ilang
resolution for filing, d b ila mn
nang taga.an ang respondents
ana ang parties, dle to daun nile
e.release ang sa katong
respondent, kai mahadlok cla
nga inig makakita nga for filing
musibat. Unahon na nila ug file,
inig mafile na unsay buhaton sa
court is issue of warrant, usa pa
daun to nila e.serve ang
resolution. So makhibw ang
accuse na for filing d i inig
pusasan na cya. So unsay
buhaton nimu ana? Pwd japon ka
ka.apilar. So even if the case is
filed in court the accuse can still
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
file an appeal before the DOJ
Secretary or RSP. What do you
mean by RSP? Regal(? D ko
kahear kau ane bt sounds like
regal ako mahear) State
Prosecutor, for cases cognizable
by 1st level courts. But in cases
cognizable by the RTC, you can
go directly to the DOJ Secretary.
But however, during arraignment
if the case is scheduled for
arraignment, you file a motion
for suspension of
arraignment. What is your
ground? On the ground that you
have a pending appeal before
the DOJ Sec. or before the RSP.
o Remember the case of Crispo vs.
Mugol that is the very important
case. Usa pd na sa mga kaso nga
kinahanglan inyong basahon,
because up to now the doctrine
of Crispo vs. Mugol is still valid.
Sec. 11. Suspension of arraignment. – Upon
motion by the proper party, the
arraignment shall be suspended in the
following cases:chanroblesvirtuallawlibrary
(a) The accused appears to
be suffering from an unsound
mental condition which
effectively renders him
unable to fully understand
the charge against him and
to plead intelligently thereto.
In such case, the court shall
order his mental examination
and, if necessary, his
confinement for such
purpose;
(b) There exists a prejudicial
question; and
(c) A petition for review of
the resolution of the
prosecutor is pending at
either the Department of
Justice, or the Office of the
President; provided, that the
period of suspension shall
not exceed sixty (60) days
counted from the filing of the
petition with the reviewing
office.
the
RULE 117
MOTION TO QUASH
This is a very important rule. In fact
among the Rules kini maoy pinaka.dghan ug
question sa bar nga nang.gawas.
What is the difference between motion to
quash and motion to dismiss?
o Actually pareho, ahw duna ra clay pareho
nga epekto. Pero kaning word nga
QUASH peculiar ra ni cya diri sa criminal
case. Didto sa Civil dle ka mka.dungog
ug motion to quash didto sa civil. Unsa
mn madungan nimu didto? Motion to
dismiss. Pero mka.dungog ba ka ug
motion to dismiss dri sa criminal? Yes.
Duna pd motion to dismiss. Nganu mn?
Tungod kai kanang motion to quash, if
you want to use the accurate term
kanang motion to quash gamiton ran a
cya if the motion is filed before
arraignment. If you want to dismiss the
case on any of the grounds under Rule
117 ang imung gamiton is motion to
quash, pero kung imu gd gamiton ang
motion to dismiss instead of quash still
the court will accept it. Mas maau jd tong
kblo ka mugamit ug appropriate term.
Kanus.a mn ka mugamit ug respondent?
When the case is pending before the
prosecutor’s office. Kung dri na sa court
unsa na pangalan sa respondent?
Page | 319

Mahimu na cya nga accuse. So when you
use the term accuse that presupposes
that the case has already pending before
the court. Unya kung gi.apilar na unsa
nmn ngalan nimu dadto? Appellant, or
either accused-appellant or accused-
appellee.
SECTION 1. Time to move to quash, -any
time before arraignment so bantayanan kaung
arraignment nuh. The accused may move to
quash the complaint or information.
Section 1. Time to move to quash. – At any
time before entering his plea, the accused
may move to quash the complaint or
information.
According to the Rule, Section 2 the
motion to quash shall be in writing, signed by the
accused or his counsel and shall distinctly specify
its factual and legal grounds. And the court shall
not consider any grounds other that those stated
in the motion, except lack of jurisdiction.
Sec. 2. Form and contents. – The motion to
quash shall be in writing, signed by the
accused or his counsel and shall distinctly
specify its factual and legal grounds. The
court shall consider no ground other than
those stated in the motion, except lack of
jurisdiction over the offense charged.
Now, kaning motion, kahinumdum mu sa
Rule 15? Rule 15 that are about motion. unsa
gani buhaton nimu if ang motion nimu is
considered litigious? Timan.e ni ninyo basic kau
ni, rule of the thumb. It must contain notice of
hearing. Kung dle gani na mag.contain ug notice
of hearing the same shall be consider as a mere
scrap of paper. By the way, bacn magtuo mu ha
nga katong Rule on Civil Procedure exclusive to
cya sas civil case, DILI!.. DILI… dunay mga
provisions didto nga applicable sa criminal cases,
usa ni.ana ang RULE 15. So in order for the
motion to quash to be valid it must be in writing,
signed by the accused or his counsel and shall
distinctly specify its factual and legal grounds
and of course it must be set for hearing. There
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
must be notice of hearing. Wa gani nay notice of  The facts alleged in the
hearing mere scrap of paper. information do not charged any
Now, although the Rule said that it must offense.
be in writing there are times that oral motion to
quash is allowed. Kana na jd klaro kau nga
So those are the grounds that cannot be
ma.dismiss. For example file ka ug murder, nya
waive. Sa ato pa bisan wa pa na nimu nasulti
diri sa 1st level court, kaklaro ni.ana, nya imu pa
didto sa imun motion to quash pwd ra gihapon
nang e.require ang accused in writing? Gadugay2
nimu ma raise nimu later on.
lng ka, ipa.oral nlng.
Now what are the grounds to quash?
The court cannot consider ground/s which
Wa moy laing mahimu memorizon ninyo ang
are not alleged in the motion. Sa ato pa, kung
grounds.
unsay ground didto mao ra pd na imung basihan.
a. That the facts charged do not
Pananglitan ni.allege cya ug prescription.
Ni.ingon cya nga prescribe, unya imung constitute any offense.
gi.dismiss on the ground that the person or the  Ato na nang gihisgutan nga
officer who file the information does not have the kanang information or complaint
authority to file, ah dle na pwd kai ang kanang kinahanglan nga mag.alleged jd
maong ground wa mn nah sa iyang maong na sa tanan elements sa crime.
motion. Nganu mn nga katong ground ra pd nga Duna gani isa ka elements sa
gi.state didto sa motion mao ra pd ang basihan crime nga wad ha, delikado. For
nimu? Because some grounds or most of the
example theft. Unsa man ang
grounds to quash an information are waivable. Sa
ato pa kung d na nila e.apil dha bsan naa nah the elements sa theft? There is
accuse is considered to have waived. Pro dunay taking of personal property, that
mga grounds nga d ma waive. Sa ato pa bsan wa the taking must w/o consent or
pa ni niya ma.mention sa iyang motion pwd w/o force, and that there is intent
gihapon cya mka.raise later on after arraignment to gain. Now, kung ang imung
in a motion to dismiss kai d nmn cya pwd
gi.allege didto dunay taking pero
kagamit ug word nga quash kai ang word nga
quash gamiton ra before arraignment, after wa ka mka.allege ug intent to
arraignment usbon nimu ang term although gain, ahw tiklo na ang maong
pareho ra nag mananapa (hehehe) pero aron lng information, on the ground that
jd pagpakita nga kblo ka sa balaod you have to the information has to be dismiss
use the right term. because the facts allege or the
Unsa mn neng mga grounds nga dle allegations in the information do
ma.waived?
not charged any offense. Bantay
1. Double jeopardy
2. That the criminal action is extinguished. mu ane kai didto sa question sa
 Meaning prescribe or has already bar taga.an ka didto ug
been serve. information, daun pangutan.on
3. Lack of jurisdiction over the offense ka, if you were the counsel for
charged. the accused what are the
 D ne ma.waived. But lack of grounds if any for the motion to
jurisdiction over the person of quash. Ug wa gani ang isa ka
element sa crime, you can file
the accused is waivable.
4. That the information does not charge any motion to quash on the ground
offense. that the facts charged do not
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
constitute any offense. Do not
constitute an offense meaning
there is no crime. Based on the
allegation in the information or
the complaint there is no crime.
b. The court trying the case has no
jurisdiction over the offense charged.
 Hinumdumi ang elements sa
jurisdiction. Unsa toy elements
sa jurisdiction sa criminal case?
Territorial jurisdiction/ jurisdiction
over the territory and……., so
remember the elements of
jurisdiction.
 This is about jurisdiction over the
offense charged. It could be no
jurisdiction over the nature or
over the penalty imposable or
jurisdiction over the territory.
Now take note that this cannot
be waived. Pareho na sa letter a.
c. That the court trying the case has no
jurisdiction over the person of the
accused.
 Kani inyong bantayan. Nganu
mn? Tungod kai if e.raise nimu ni
nga ground, if you file a motion
to quash on this ground dle gusto
ug kauban, gusto cya
mag.inosara. Nganu mn? Kung
imu neng ubanan ug lain nga
ground this ground is waived. Sa
ato pa if you file a motion to
quash on the ground that the
court has no jurisdiction over his
person and at the same time you
file another ground, on the
ground that the action has
prescribe, ah wa. Katong lack of
jurisdiction over the person
waived to, wagtang to. Dle ni
pareha atong sa civil. Kai sa civil
if mu file ka ug lack of jurisdiction
over the person of the defendant
pwd mn ni pa.ubanan ug lain na
grounds. Pero kani lahi. Dili
mu.apply ang Omnibus Rule ane.
Kahinumdum mu sa Omnibus
Motion Rule? That a motion
attacking a pleading or an
information should include all
grounds. Ang kani this is an
exception to the Omnibus Motion
Rule.
 Then mangutan ka in what
instance for example that the
acquire jurisdiction over the
person of the accused? Anus.a
mn nah mka.file ang accuse ug
motion to quash on the ground of
lack of jurisdiction over his
person? Pananglitan illegal arrest,
he was arrested w/o any warrant.
But the arrest would not fall in
any of the circumstances that the
arrest would be valid warrantless
arrest could be made. The illegal
arrest of the accused can be
bases for to you file a motion to
quash on the ground of lack of
jurisdiction over then person of
the accused. Ayaw igna nga on
the ground of illegal arrest, igna
nga no jurisdiction over the
person of the accused. E.klaro jd,
ka wa bya illegal arrest dha. Unya
kani ra bang mga grounds dri
EXCLUSIVE. So sa ato kung
mu.file ka ug motion to quash
basi raj d aneng maong mga
grounds. Kung wa gani na diri d
na motion to quash, motion to
dismiss nah bsan pa ug before
arraignment. Pananglitan 2o ka
nga probable cause unya dle pwd
ma.issuehan ug warrant if arrest
ahw dle ka mka.ingon nga motion
to quash on the ground of lack of
probable cause, motion to
dismiss on the ground of
probable cause. Ok illegal arrest
or the warrant is defective, so if
the warrant is defective
consequently the arrests is illegal
and take note that if you want to
question the legality of the arrest
of the accused you should do it
before arraignment because this
can be waived.
d. That the officer who filed the
information had no authority to file
the same.
 Anus.a mn nah mahitabo nga
the officer who filed the
information had no authority
to file the same, ahw
pananglitan ang information
g.file sa mayor unsa mn ang
authority niya?.. pananglitan
ang assistant prosecutor mao
ray nag.file2 sa information
way approval sa city or sa
provincial unsa man ground
nimu ana? Ahw mao ni ang
ground, the officer who filed
the information has no
authority to file the same.
Nganu mn? Because under
the Rule, RULE 112, the
resolution of the assistant
prosecutor must be approved
by the city or the provincial
prosecutor. If the information
is filed in court w/o the
approval of the city or the
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
provincial prosecutor the
information could be quash
on the ground that the officer
who filed the information
does not have the authority
to do so. But remember this
can be waived.
e. It does not conform substantially to
the prescribed form.
 Remember Sec. 6 of Rule
110. For example di ba ang
kanang criminal case it must
be name in the name of the
People of the Philippines,
pananglitan dle People of the
Philippines, name sa offended
party ang g.butang unsa mn
ang ground nimu ana? Imbis
PP. of the Philippines vs.
g.butang nimu Juan dela Cruz
vs., unsa mn ground nimu
ana? It does not conform
substantially to the
prescribed form.
f. That more than one offense is
charged
 Ato nang nahibw.an nga one
complain or one information
only one offense however
dunay mga exceptions, unsa
mn? No.1 is where the law
allows or the law imposes
single penalty for various
offenses, such as complex
crime, special complex crime.
g. That the criminal action or liability
has been extinguished.
 Remember Art. 89 of the
RPC. Unsa mn tong naa sa
Art. 89 of the RPC? Those are
the causes of extinctions of
criminal action or liability,
such as prescription, service
of sentence, amnesty etc…
h. That it contains averments which, if
true, would constitute a legal excuse
or justification.
 Kanang information or
complaint kinahanglan nga
mag.alleged lng na sa
element sa crime. Unya
gawas sa element sa crime
e.allegaed sd dha ang
aggravating circumstances.
Now, dle nimu e.allege dha
ang justifying or exempting
e.allege gani na nimu dha
tiklo jd nah. Nganu mn? That
it contains averments which,
if true, would constitute a
legal excuse or justification.
For example g.kiha.an nimu
ug murder unya gibutangan
nimu didto ang elements sa
self-defense. Gibutangan
nimu didto nga that the
victim was killed due to his
unlawful aggression and that
the accused use necessary
means to prevent or to repel
the aggression and that there
was no sufficient provocation
on the part of the accuse nah
patay……… then bisan gani
ug mititgating di nah e.state
sa information kai pabor mn
nah sa kontra. Duna lang usa
ka mitigating nga e.state sa
information, unsa mn?
Minority. Nganu mn? It will
affect jurisdiction. Kai nganu
mn d i ug minor asa mn nimu
e.file? RTC jd, family court,
kung way family court then
RTC.
i. That the accused has been previously
convicted or acquitted of the offense
charged, or in the case against him
was dismissed or otherwise
terminated without his express
consent.
 We called this as double
jeopardy.
j. Ang last nga wa nabutang dha is
NON-COMPLIANCE with the
Katarungang Pambarangay.
Sec. 3. Grounds. – The accused may move to
quash the complaint or information on any
of the following
grounds:chanroblesvirtuallawlibrary
(a) That the facts charged do not
constitute an offense;
(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
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or otherwise terminated without
his express consent.
What is the effect of the motion to
quash? Now, of course if the motion to quash is
filed, the court will either grant the same, or deny
it or order the amendment of the information or
the complaint.
Now, under Section 4, if the motion to
quash is based on an alleged defect of the
complaint or information which can be cured by
amendment, the court shall order the
amendment. Now, kung mada ug amendment
the court can order amendment. If the court
orders the amendment it has the effect of the
denial of the motion to quash.
If based on the ground charged do not
constitute an offense, the prosecution shall be
given by the court an opportunity to correct the
defect by amendment. The motion shall be
granted if the prosecution fails to make the
amendment, or the complaint or information still
suffers from the same defect despite the
amendment. Meaning the case shall be
dismissed if the prosecution fails to make the
amendment or the complaint or information still
suffers from the same defect despite the
amendment. Sa ato pa kung mada ug
amendment then e.amend, pero kung d jd mada
the information has to be dismiss or quash.
Sec. 4. Amendment of complaint or
information. – If the motion to quash is
based on an alleged defect of the complaint
or information which can be cured by
amendment, the court shall order that an
amendment be made.chanrobles
virtualawlibrary
If it is based on the ground that the
facts charged do not constitute an offense,
the prosecution shall be given by the court
an opportunity to correct the defect by
amendment. The motion shall be granted if
the prosecution fails to make the
amendment, or the complaint or
information still suffers from the same
defect despite the amendment.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
What is the effect of quashing the
information? Section 5. If the dismissal is w/o
prejudice then refile. Example, motion to quash
on the ground of lack of jurisdiction over the
offense charge, for example attempted rape g.file
nimu sa MTC kai nagtuo ka nga cognizable sa
MTC kai nkalimut ka sa penalty imposable, or
attempted murder nagtuo nga pareho ra ug
attemted homicide diri nimu gifile sa 1 st level
nkalimut ka ana nga ang penalty imposable ana
is prision mayor. Ok file nimu sa 1st level, g.filan
ug motion to quash on the ground of lack of
jurisdiction over the offense charge. GRANTED,
kai d mn nah madala ug amendment, unsa mn
remedy sa prosecution? The remedy is refile.
REFILE nimu sa RTC. Pangutana, is there no
double jeopardy? Na dismiss na mn? WALA.
Nganu mn? Because in the 1 st place the motion to
dismiss was filed by the accused, meaning it was
with his consent in fact he was the oen who ask
for the dismissal. Ikaduha, there is no double
jeopardy because there is no danger of
conviction. Nganung wa mn danger of
conviction? Kai wa mn jurisdiction. okay it can be
refiled, especially if the accused has not yet been
arraign. So mao nang Sec. 5, the court may order
that another information may filed. But of course
kung ang ground sa quashal is due to double
jeopardy or due to extinction of the charge, kato
btw ground sa…. What ground is that? Paragraph
i and g, now d na jd na marefile. Nganu mn
tungod kai double jeopardy.
Now, if the order is made, if in custody,
he shall not be discharged unless admitted to
bail. If no order is made or if no new information
is filed then he shall be discharged unless he is in
custody for another charge. Sa ato pa kung
adunay motion to quash unya ang accused
g.detained dili cya pwd e.release, gawas on the
ground of extinction or doube jeopardy. Pero if
ang kaso ped pa e.refile dili cya e.dismiss.
Now, pananglitan if e.deny ang motion,
unsa mn ang remedy sa accused? Ikw counsel sa
accused, file ka ug motion to quash, DENIED.
Unsa mn imung remedy? Unsa mn nang Order
denying the motion to quash? final order or
interlocutory? Interlocutory. Nganu mn? There is
still something to be done by the court. So what
is your remedy? Your remedy is so to trial. 1 st
remedy is go to trial, have the accused arraign,
present your evidence, and if the decision is
unfavorable to you file an appeal and in you
appeal assign it as one of the errors of the court.
Unsa toy remedy nimu? Go to trial, and later on if
the decision is adverse file an appeal and in you
appeal and assign it as one of the errors your
ground to quash the information. However, if you
really believe that the court has acted w/ grave
abuse of discretion because you really believe
that the case is dismissible, for example you file
a motion to quash on the ground of lack of
jurisdiction because you really believe that the
court has no jurisdiction but the court denied
your motion and you believe that if you go to trial
it just be useless because you believe that the
court has no jurisdiction. So what is your
remedy? File a Petition for Certiorari under RULE
65. Kanang Rule 65 naa ra nah dha pero para ra
nah sa grave abuse of discretion. Under ordinary
circumstances, way grave abuse of discretion
ang imung remedy ana is go to trial. Unsaon nmn
tong imung grounds mabya.an nlng to? Ayaw to
ug kalimti, kai kung adverse gani ang decision sa
court ahw magamit na to nimu. You point it as
one of the errors committed by the court on
appeal.
Now, what about is the motion to quash
is granted? Sa ato pa granted ahw, lipay ang
accused, unsa man remedy krn sa prosecution?
Now, if because of the dismissal the case can be
refilled then you refile. Is there double jeopardy?
No. And if panguntan.on ka explain why? Ahw ako
na tong gihatag ang katarungan, legal basis.
However, duna man mag grounds nag dka pwd
mka.refile, unsa to duha ka grounds? Double
jeopardy and extinctions of the crime or the
liability. Now, if that is the ground of the quashal
this is now a final order and the remedy for final
order is appeal, you file an appeal.
Again, if you believe that the court acted
w/ grave abuse of discretion kanang certiorari
naa ra jd nah dha.
Sec. 5. Effect of sustaining the motion to
quash. – If the motion to quash is
sustained, the court may order that another
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complaint or information be filed except as
provided in section 6 of this rule. If the
order is made, the accused, if in custody,
shall not be discharged unless admitted to
bail. If no order is made or if having been
made, no new information is filed within the
time specified in the order or within such
further time as the court may allow for
good cause, the accused, if in custody, shall
be discharged unless he is also in custody
of another charge.
Sec. 6. Order sustaining the motion to
quash not a bar to another prosecution;
exception. – An order sustaining the motion
to quash is not a bar to another prosecution
for the same offense unless the motion was
based on the grounds specified in section 3
(g) and (i) of this Rule.
Now, double jeopardy you discuss it in
your political law extensively. But in case
nkalimut mu, when can you say that there is
double jeopardy? There is double jeopardy if the
the 1st jeopardy exist prior to the 2 nd. There must
be 2 jeopardies. Anus.a mn ka maka.ingon nga
ang 1st jeopardy exist? When can you say that
the 1st jeopardy exists? Timan.an ninyo kung naa
na bah ang 1st jeopardy. Naa na gani ang 1st
jeopardy then e.refile gani nah nimu ang maong
kaso mu.create na nah ug double jeopardy.
What are the elements of the 1st jeopardy?
(Sec.7)
1st. there must be valid information
2nd. the court has jurisdiction over the offense
3rd. the accused has already been arraign
4th. the accused has been acquitted or convicted
or the case was terminated w/o his express
consent.
Now, these are the elements of the 1 st
jeopardy, mao jd ni imu tan.awon. That they have
a valid information or complaint? Does the court
have jurisdiction in that case? Has the accused
has been arraign in that case? And that was the
accused convicted? Acquitted? Or was the case
terminated w/o his express consent? If all of
these elements are present then the 1st jeopardy
is present, and any attempt to refile the same
case would constitute double jeopardy.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
So the elements of double jeopardy is
that the 1st element is present, meaning this one
(judge referring to the above discussion) and
there is the second jeopardy.
If then 1st jeopardy is present then the 1 st
jeopardy will constitute a bar to another
prosecution for the same offense charge or for
any attempt to commit the same or frustration
thereof or for any offense w/c is necessarily
included in the offense charged. Sa ato pa naa na
gani neng 1st jeopardy you cannot file the same
offense against the accuse or you cannot file any
charged w/c is necessarily included in the
charged. Pananglitan accused cya ug murder, he
has been arraigned, and the court has jurisdiction
and the case the accused was acquitted, krn
mufile ang prosecution ug homicide. Is there
double jeopardy? YES. Because there has been
valid information, because the 1 st jeopardy is
present the court has jurisdiction, accused has
been arraign, the accused has been acquitted
and homicide is necessarily included in the
offense charge.
But there are exceptions:
Such as supervening event, a) graver
offense developed due to supervening
facts, or b.)the facts constituting the
graver charge became known or were
discovered only after a plea was entered in
the former complaint or information. Unsa
mn ang kala.enan aneng letter a and letter b?
(judge referring to Rule 117, Section 7, 2nd par. a
and b). Letter a supervening event ni, pag.file sa
information wa pa cya mideveloped, such as
frustrated homicide or frustrated murder. Pagfile
sa information buhi pa, alangan mn ug filan nimu
ug murder. Later on pagkahuman ug file two
days after or one after namatay, g.charge cya ug
frustrated murder, ni.plead guilty. Dali2 ta ug
plead ane beh kai bacn mamatay unya ne,
pananglitan voluntary plea of guilty so ubos na.
Oi, abtan isa ka bulan pag.kahumn sa sentencya
namatay mn, gi.filan cya ug murder. Mi.file cya
ug motion to quash on the ground of double
jeopardy. Would it prosper? No, because that is
supervening event. The death of the victim is
considered as a supervening event. That is an
exception to the rule. Another, kanang sa letter
b, naa na daan pero wa na discover. Lahi mn to
sa letter a kai wa p mn jd cya dha. Alangan mn
ug patay na cya dha wla lng ka kadicobre,
supervening jd cya wa pa nhitabo. Ang letter be
nahitabo na pero wa pa nadiscover. Example,
gikiha cya ug slight physical injuries kai 9 days or
less ra mn, unya later on calloids former mn d i
cya, kinawrasan dri nangburot nmn, nhimu ng
defect. Na deform na. Question unsa nmn? The
question now can be charge of serious physical
injuries. Pwd p cya mafilan? Dunay double
jeopardy? NO, there is no double jeopardy. (c)
The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party except if the private complainant
failed to appear despite notice.
Sec. 7. Former conviction or acquittal;
double jeopardy. – When an accused has
been convicted or acquitted, or the case
against him dismissed or otherwise
terminated without his express consent by
a court of competent jurisdiction, upon a
valid complaint or information or other
formal charge sufficient in form and
substance to sustain a conviction and after
the accused had pleaded to the charge, the
conviction or acquittal of the accused or the
dismissal of the case shall be a bar to
another prosecution for the offense
charged, or for any attempt to commit the
same or frustration thereof, or for any
offense which necessarily includes or is
necessarily included in the offense charged
in the former complaint or information.
However, the conviction of the accused
shall not be a bar to another prosecution
for an offense which necessarily includes
the offense charged in the former complaint
or information under any of the following
instances:
(a) the graver offense
developed due to
supervening facts
arising from the same
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act or omission
constituting the
former charge;
(b) the facts
constituting the
graver charge became
known or were
discovered only after a
plea was entered in
the former complaint
or information; or
(c) the plea of guilty to
the lesser offense was
made without the
consent of the
prosecutor and of the
offended party except
as provided in section
1(f) of Rule 116.
In any of the foregoing cases, where the
accused satisfies or serves in whole or in
part the judgment, he shall be credited with
the same in the event of conviction for the
graver offense.chanrobles virtualawlibrary
Sec. 8. Provisional dismissal , this is very
important. Another provision that you should take
note. This is a new provision, it is not present
under the old crim pro.
Now, under this provision a case shall not
be provisionally dismissed except with the
express consent of the accused and with notice
to the offended party. In other words a criminal
case can be dismissed temporarily w/ the express
consent of the accused and with notice to the
offended party. Anus.a mn ni cya mahitabo nga
adunay provisional dismissal? Pananglitan, initial
hearing wa mn mutunga ang witness sa
prosecution, mi.ingon na ang fiscal, your honor
we move for the provisional dismissal.
Pananglitan mu.ingon ang accuse we do not
object your honor for the provisional dismissal
now the case now may be dismiss temporariy.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
However the dismissal although temporary or
provisional, would become automatically
permanent after the lapsed of 1 yr. if the case is
cognizable by 1st level court and 2 yrs. if
cognizable by RTC or 2 nd level courts w/o the case
having been revive by the prosecution. Take note
of the requisites that the provisional dismissal
must be w/ the express consent of the accused
take note of the word express and notice to the
offended party.
You read this case of Pp. v. Lacson, April
1, 2003 for this provision. Remember the time
bar, kana btw w/in 1 yr. or 2 yrs. mao na gtawag
ug time bar, meaning that is the period w/in
which the case could still be revive by the
prosecution, otherwise the dismissal would
become automatically final, automatically final
meaning there is no need to file a motion on the
part of the accuse.
By the way ang rule dha wa migamit ug
1st level court, ang imprisonment, punishable by
not exceeding 6yrs. unya ang usa more than
6yrs. So ayaw gamit, nasayop ko ato ganina,
ayaw gamit sa katong cognizable…… coz there
are cases below 6yrs. cognizable by RTC. So what
does it mean? Even if the case is filed in the RTC
unya below 6yrs. then 1 yr only.
Sec. 8. Provisional dismissal. – A case shall
not be provisionally dismissed except with
the express consent of the accused and
with notice to the offended party.
The provisional dismissal of offenses
punishable by imprisonment not exceeding
six (6) years or a fine of any amount, or
both, shall become permanent one (1) year
after issuance of the order without the case
having been revived. With respect to
offenses punishable by imprisonment of
more than six (6) years, their provisional
dismissal shall become permanent two (2)
years after issuance of the order without
the case having been revived.
Section 9, these are the grounds which
are not waived if they are not allege in the
motion to quash.
Repeat, the court cannot consider
grounds w/c are not allege in the motion,
because the court cannot muto propio quash
information, there has to be a motion. But naay
usa ka ground nga ang korte pwd mka.consider,
and that is lack of jurisdiction. Unya e.connect
nah didto sa civil, sa civil mas dghan. Upat sa
civil ka grounds nga pw dang court muto propio
mka.dismiss gawas sa jurisdiction. Look at RULE
9 Sec. 1.
Sec. 9. Failure to move to quash or to allege
any ground therefore. – The failure of the
accused to assert any ground of a motion to
quash before he pleads to the complaint or
information, either because he did not file a
motion to quash or failed to allege the
same in said motion, shall be deemed a
waiver of any objections except those
based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of section 3
of this Rule.
January 14, 2013
We had discussed last meeting about
Double Jeopardy (DJ).
Section 7 tells us the elements of DJ.
SEC. 7. Former conviction or acquittal; double
jeopardy. – When an accused has been
convicted or acquitted, or the case against
him dismissed or otherwise terminated
without his express consent by a court of
competent jurisdiction, upon a valid
complaint or information or other formal
charge sufficient in form and substance to
sustain a conviction and after the accused
had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal
of the case shall be a bar to another
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
prosecution for the offense charged, or for
any attempt to commit the same or
frustration thereof, or for any offense which
necessarily includes or is necessarily
included in the offense charged in the
former complaint or information.
However, the conviction of the accused
shall not be a bar to another prosecution
for an offense which necessarily includes
the offense charged in the former complaint
or information under any of the following
instances:
(a) the graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
(b) the facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information; or
1 the plea of guilty to the lesser
offense was made without the consent of
the prosecutor and of the offended party
except as provided in section 1(f) of Rule
116.
In any of the foregoing cases, where the
accused satisfies or serves in whole or in
part the judgment, he shall be credited with
the same in the event of conviction for the
graver offense.
In order for DJ to exist, the
elements of first jeopardy must be
present. Remember the elements
of the FIRST JEOPARDY.
← The former complaint or
information is valid;
← It was filed in a court of
competent jurisdiction;
← The accused had been
arraigned under said complaint or
information; and
4. The accused had pleaded to
the same.
If these elements are present, the
same will constitute a bar for a
second prosecution for the same
offense.
What do you mean by the same
offense?
Answer: The same offense
charged could be exactly the same
second offense charged or an
attempt to commit it or in the
frustrated stage thereof.
Example: An accused is charged
for rape under a valid information
or complaint, filed in court that
has jurisdiction, the accused has
been arraigned and the case was
terminated without the express
consent of the accused or he was
convicted or acquitted, the
accused cannot be charged
anymore with rape. He cannot be
charged with attempted rape or
acts of lasciviousness. Because the
same offense charged means
exactly the same second offense
charged or an attempt to commit
it or in the frustrated stage thereof
or any offense which is necessarily
includes or is necessary included
in the offense charged. He cannot
be anymore charged with acts of
lasciviousness because the said
crime is necessarily included in the
crime of rape.
In relation to DJ, remember the
case of
Ivler vs. San Pedro, November 17,
2010
In Jayson Ivler Y Aguilar
vs. Hon. Maria Rowena
Modesto-San Pedro, the
Supreme Court sufficiently
explained that the doctrine that
reckless imprudence under Article
365 is a single quasi-offense by
itself and not merely a means to
commit other crimes such that
conviction or acquittal of such
quasi-offense bars subsequent
prosecution for the same quasi-
offense, regardless of its various
resulting acts, undergirded this
Court’s unbroken chain of
jurisprudence on double jeopardy
as applied to Article 365 starting
with People v. Diaz, [94 Phil. 715
(1954)] decided in 1954.
(http://remediallawdoctrines.blogs
pot.com/2011_12_01_archive.html
)
In the constitution there is a
different rule of DJ. Under the
constitution, article 3, “If an act is
punished by a law or ordinance,
conviction or acquittal in either
shall constitute a bar to another
prosecution for the same act.”
That is still within the meaning of
DJ.
Now , dunay problema aning DJ.
For the DJ to exist, all the elements
of the first Jeopardy must be
present. Suppose the accused
committed the crime of robbery
with homicide where in the course
of robbery the victim is killed. The
accused does not commit two
crimes but he committed special
complex crime, a single indivisible
offense. Suppose the police
charged the accused with robbery
and another charged for murder
and these cases are pending in
court. Can you file a Motion to
quash on DJ?
Answer: In the present rule of DJ,
you cannot kay wa pa man siya
na arraigned.
(Nausab man gud ni ang rule sa
DJ. Kaniadto, if the accused is in
danger of being in DJ, pede. Under
the present rule wala na na nga
phrase.) However, Regalado has
different opinion, pede daw ma
raise ang DJ if the accused is
danger of DJ. Just write lng daw
sad ni nga answer just in case
ipangutana sa bar ingon si JD.
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Rule 118 would just agree to only one of the
PRE-TRIAL offenses charged then the rest will
Before year 2000, pre – trial is be dismiss. PBA also covers the
optional. With this new rule, Pre-Trial (PT) settlement of the Civil aspects of
is now MANDATORY in all criminal cases. the case and it is also possible that
How does Pre-trial of criminal case differ there is a provisional dismissal of a
from civil cases? criminal case especially estafa.
Pre-Trial (PT) in Criminal case Kay ang number one tuyo ana kay
para ra makabayad. Ang gusto sa
gi-utangan na mabayran ra siya.
Pre-trial brief is not required but not also Bahala na kung ma priso or dili
prohibited (sa Sandigan, required ang Pre-trial ang nangutang. Pede na nila
brief) masabutan during PBA.
SECTION 1. Pre-trial;
mandatory in criminal cases. – In
all criminal cases cognizable
by the Sandiganbayan,
Presence of the parties is not mandatory Regional Trial Court,
(private complainant may be absent during PT, Metropolitan Trial Court,
thus he is deemed waived all his rights to Municipal Trial Court in Cities,
object except during arraignment. If there is Municipal Trial Court and
plea bargaining, he is deemed to have waived Municipal Circuit Trial Court,
his right but the presence of a public the court shall, after
arraignment and within thirty
prosecutor will suffice)
(30) days from the date the
court acquires jurisdiction
It has plea-bargaining agreement in lieu of over the person of the
compromise agreement accused, unless a shorter
period is provided for in
special laws or circulars of
NB: Plea bargaining Agreement the Supreme Court, order a
(PBA) in criminal cases is a process pre-trial conference to
whereby the accused and the consider the following:
prosecution work out a mutually (a) plea bargaining;
satisfactory disposition of the case (b) stipulation of facts;
subject to court approval. It (c) marking for
usually involves the defendant’s identification of evidence of
pleading guilty to a lesser offense the parties;
or to only one or some of the (d) waiver of objections to
counts of a multi-count indictment admissibility of evidence;
in return for a lighter sentence (e) modification of the
than that for the graver charge. order of trial if the accused
It is not limited to pleading guilty admits the charge but
to a lesser offense ang PBA interposes a lawful defense;
daghan pud mahitabo ana. Ang and
accused for example was charged (f) such matters as will
with several offenses, the parties promote a fair and expeditious
trial of the criminal and civil
aspects of the case.
Marking of the exhibits. Remember
that under the recent circular
issued by the SC that the court will
not allow the presentation of
evidence during the trial if the said
evidence was not presented during
the pre-trial----Preclusion Rule
ang tawag ana na rule.
Exclusion Rule – i-xclude ang
evidence that has been illegally
obtained and make it inadmissible
in any proceedings.
Tanan nimong evidence
kinahanglan dalhon na nimo
during PT. Mga object or
documentary evidence ug mga
witnesses pila kabuok,
kinahanglan kabalo naka. Imo pud
na i-hapnig.
It is one of the proceedings that
can dispose the case early.
Importante ni siya.
Sa stipulation of facts, imprtante
kaayo na. Kun dunay medical
certificate nya ma stipulate nga
authentis and genuine diay na.
There is no need for you to present
the doctor. Imagine pila ka hours
ang ma save ana.
Waiver of objections to
admissibility of evidence. Example,
aning gimarkahan nga mga exhibit
asa may imong object-kan ani?
Kung wala, so waived na!! So,
admitted na diay na! So
pagkuhuman ana, there could be
PBA.
Modification of the order of trial if
the accused admits the charge but
interposes a lawful defense. Ikaw
nga nangiha, ikaw maoy mo prove.
He who has a claim must prove the
same. Unahon ang plaintiff, then
accused, then supakon or rebuttal
sa prosecution, then sur-rebuttal
sa defense. That would be reverse
Page | 327

if the defense will present a
justifying circumstance like self-
defense. It means he admitted the
crime. For example, murder
although he will adduce evidence
that the killing was justified.
Reverse trial is optional. Dili na
automatic. I-agree pa na sa mga
parties if mosugot sila ug reverse
trial.
Such matters as will promote a fair
and expeditious trial of the
criminal and civil aspects of the
case. For example, the number of
witnesses. Kung 50 ang witnesses,
judge mo-ingon ngano 50 man?
Kadaghan ba ana. Pede na ma
reduce kay testimonies of
witnesses are not numbered but
weight.
The parties could agree the trial
dates. Kay mga busy kaayo na ang
mga abugado.
SEC. 2. Pre-trial agreement. – All agreements
or admissions made or entered during the
pre-trial conference shall be reduced in
writing and signed by the accused and
counsel, otherwise, they cannot be used
against the accused. The agreements
covering the matters referred to in section
1 of this Rule shall be approved by the
court.
Remember the agreements
during the PT conference
should be signed by the
accused AND counsel . And
ha!! yaw na kalimti. Otherwise
it cannot be binding. Kana
siyang admission during PT
can be considered as JUDICIAL
ADMISSION. This kind of
admission does not require
evidence anymore kay
admitted na na siya. Di na
kinahanglan ug witness kay
imo na na gi admit. Imo lng
ingnon ang Judge “ your Honor
that has been admitted during
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
pre trial” mao ra na. Lahi na
siya sa custudial investigation
kay kinahanglan man ka mo
present ug witness ana. I
present nimo ang police, ang
dokumento katong gipirmahan
sa accused kay gitawag na ug
extra-judicial. Kanang
admission made in court is
called Judicial Admission which
does not require proof.
If there are admissions made
during PT conference, there
are conditions that should be
made. This must be ;
0 in writing
1 signed by the accused and
his counsel
Take note: only those
agreement during PT that are
to be required to be in writing
and signed by the accused and
his counsel. Admission outside
PT such as admission during
the trial proper need not be in
writing and need not be
signed by the accused and
counsel. Ang transcription sa
stenographer is enough
evidence of admission.
Mas istrikto ang PT.
Kinahanglan jud m comply sa
conditions above written.
SEC. 3. Non-appearance at pre-trial
conference. – If the counsel for the accused
or the prosecutor does not appear at the
pre-trial conference and does not offer an
acceptable excuse for his lack of
cooperation, the court may impose proper
sanctions or penalties.
The counsels either the
prosecution or the defense who
failed to attend the PT conference
will be subjected to a disciplinary
action.
SEC. 4. Pre-trial order. – After the pre-trial
conference, the court shall issue an order
reciting the actions taken, the facts
stipulated, and evidence marked. Such
order shall bind the parties, limit the trial
to matters not disposed of, and control the
course f the action during the trial, unless
modified by the court to prevent manifest
injustice.
In the PT order the court will
now summarize what transpired
during the PT. PT order will guide
the court to control the
proceeding. It cannot be modified
in court unless the same will work
injustice to any of the parties.
Rule 119
TRIAL
SECTION 1. Time to prepare for trial. – After
a plea of not guilty is entered, the accused
shall have at least fifteen (15) days to
prepare for trial. The trial shall commence
within thirty (30) days from receipt of the
pre-trial order.
SEC. 2. Continuous trial until terminated;
postponements. – Trial once commenced shall
continue from day to day as far as
practicable until terminated. It may be
postponed for a reasonable period of time
for good cause.
The court shall, after consultation with the
prosecutor and defense counsel, set the
case for continuous trail on a weekly or
other short-term trial calendar at the
earliest possible time so as to ensure
speedy trial. In no case shall the entire trial
period exceed one hundred eighty (180)
days from the first day of trial, except as
otherwise authorized by the Supreme
Court.
The time limitations provided under this
section and the preceding section shall not
apply where special laws or circulars of the
Page | 328

Supreme Court provide for a shorter period
of trial.
Sa motion to post bail, I
hearing man na no. kanang
evidence nga gi present didto
shall automatically form part the
evidence of the prosecution. So
madali ang kaso. So dalion ni sa
court pag resolve. So early ma
dispose sa court. Kanang ubang
motion mga wa nay ayo!! (patay
ta ani if ma landing ta sa court ni
judge D. dili ta ka extend kay
mauwaw ta)
SEC. 3. Exclusions.- The following periods of
delay shall be excluded in computing the
time within which trial must commence:
(a) Any period of delay resulting from other
proceedings concerning the accused,
including but not limited to the following:
(1) Delay resulting from an examination of
the physical and mental condition of the
accused;
(2) Delay resulting from proceedings with
respect to other criminal charges against
the accused;
(3) Delay resulting from extraordinary
remedies against interlocutory orders;
(4) Delay resulting from pre-trial
proceedings; provided, that the delay does
not exceed thirty (30) days;
(5) Delay resulting from orders of
inhibition, or proceedings relating to
change of venue of cases or transfer from
other courts;
(6) Delay resulting from a finding of
existence of a prejudicial question; and
(7) Delay reasonably attributable to any
period, not to exceed thirty (30) days,
during which any proceeding concerning
the accused is actually under advisement.
(b) Any period of delay resulting from the
absence or unavailability of an essential
witness.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
For purposes of this subparagraph, an
essential witness shall be considered
absent when his whereabouts are unknown
or his whereabouts cannot be determined
by due diligence. He shall be considered
unavailable whenever his whereabouts are
known but his presence for trial cannot be
obtained by due diligence.
(c) Any period of delay resulting from the
mental incompetence or physical inability
of the accused to stand trial.
(d) If the information is dismissed upon
motion of the prosecution and thereafter a
charge is filed against the accused for the
same offense, any period of delay from the
date the charge was dismissed to the date
the time limitation would commence to run
as to the subsequent charge had there
been no previous charge.
(e) A reasonable period of delay when the
accused is joined for trial with a co-accused
over whom the court has not acquired
jurisdiction, or, as to whom the time for
trial has not run and no motion for separate
trial has been granted.
(f) Any period of delay resulting from a
continuance granted by any court motu
proprio, or on motion of either the accused
or his counsel, or the prosecution, if the
court granted the continuance on the basis
of its findings set forth in the order that the
ends of justice served by taking such action
outweigh the best interest of the public and
the accused in a speedy trial.
SEC. 4. Factors for granting continuance. – The
following factors, among others, shall be
considered by a court in determining
whether to grant a continuance under
section 3(f) of this Rule.
(a) Whether or not the failure to grant a
continuance in the proceeding would likely
make a continuation of such proceeding
impossible or result in a miscarriage of
justice; and
(b) Whether or not the case taken as a
whole is so novel, unusual and complex,
due to the number of accused or the nature
of the prosecution, or that it is
unreasonable to expect adequate
preparation within the periods of time
established therein.
In addition, no continuance under section
3(f) of this Rule shall be granted because of
congestion of the court’s calendar or lack
of diligent preparation or failure to obtain
available witnesses on the part of the
prosecutor.
SEC. 5.Time limit following an order for new
trial. – If the accused is to be tried again
pursuant to an order for a new trial, the
trial shall commence within thirty (30) days
from notice of the order, provided that if
the period becomes impractical due to
unavailability of witnesses and other
factors, the court may extend but not to
exceed one hundred eighty (180) days. For
the second twelve-month period, the time
limit shall be one hundred eighty (180)
days from notice of said order for new trial.
SEC. 6. Extended time limit.- Notwithstanding
the provisions of section 1(g), Rule 116 and
the preceding section 1, for the first
twelve-calendar-month period following its
effectivity on September 15, 1998, the time
limit with respect to the period from
arraignment to trial imposed by said
provision shall be one hundred eighty (180)
days. For the second twelve-month period,
the time limit shall be one hundred twenty
(120) days, and for the third twelve-month
period, the time limit shall be eighty (80)
days.
SEC. 7. Public attorney’s duties where accused
is imprisoned. – If the public attorney
assigned to defend a person charged with a
crime knows that he latter is preventively
detained, either because he is charged with
a bailable crime but has no means to post
bail, or, is charged with a non-bailable
crime, or, is serving a term of imprisonment
in any penal institution, it shall be his duty
to do the following:
Page | 329

(a) Shall promptly undertake to obtain the
presence of the prisoner for trial or cause a
notice to be served on the person having
custody of the prisoner requiring such
person to so advise the prisoner of his right
and demand trial.
(b) Upon receipt of that notice, the
custodian of the prisoner shall promptly
advise the prisoner of the charge and of his
right to demand trial. If at anytime
thereafter the prisoner informs his
custodian that he demands such trial, the
latter shall cause notice to that effect to be
sent promptly to the public attorney.
(c) Upon receipt of such notice, the public
attorney shall promptly seek to obtain the
presence of the prisoner for trial.
(d) When the custodian of the prisoner
receives from the public attorney a
properly supported request for the
availability of the prisoner for purpose of
trial, the prisoner shall be made available
accordingly. (sec. 12, cir. 38-98)
SEC. 8. Sanctions. – In any case in which
private counsel for the accused, the public
attorney, or the prosecutor:
(a) Knowingly allows the case to be set for
trial without disclosing that a necessary
witness would be unavailable for trial;
(b) Files a motion solely for delay which he
knows is totally frivolous and without
merit;
(c) Makes a statement for the purpose of
obtaining continuance which he knows to
be false and which is material to the
granting of a continuance; or
(d) Willfully fails to proceed to trial without
justification consistent with the provisions
hereof, the court may punish such counsel,
attorney, or prosecutor, as follows:
(1) By imposing on a counsel privately
retained in connection with the defense o
fan accused, a fine not exceeding twenty
thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel
de oficio, public attorney, or prosecutor a
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
fine not exceeding five thousand pesos
(P5,000.00); and
0 By denying any defense counsel or
prosecutor the right to practice before the
court trying the case for a period not
exceeding thirty (30) days.
KANANG GILINYAHAN KAY GI
HIGHLIGHT NI JUDGE PAG BASA.
SORRY , GIBASA RA JUD NI SIR
ANG CODAL sa PROVISION. NYA
MIINGON RA SIYA IT'S A MATTER
OF READING RA DAW.
Section 9, inyo jud ni timan-an.
This is a ground for the dismissal
of the case. Atong nahibaw-an,
kung ang accused gani maoy mo
moved sa quashal sa information
or complaint, DJ will not set in.
Ngano man? Kay the dismissal is
with the consent of the accused.
Para ma set in ang DJ, the
dismissal should be without the
express consent with the accused.
However, timan-i jud ni, if
the motion to dismiss is grounded
with the denial of the accused for
speedy trial, if granted by the
court, the same will constitute DJ.
GR: If the Motion to Dismiss is
filed by the accused in court, if
granted , there is no DJ.
Exception: If the Motion to
Dismiss on the ground that
theaccused's right for the speedy
disposition of trial, DJ will set in.
Meaning, kung ma grant sa court
nya i-file pagbalik sa prosecution
or mo file ug Motion for
reconsideration, pede ma
depensa sa defense ang DJ.
If the accused will not file on
that ground, then the same will
be considered waived.
SEC. 9. Remedy where accused is not brought
to trial within the time limit.– If the accused is
not brought to trial within the time limit
required by Section 1(g), Rule 116 and
Section 1, as extended by Section 6 of this
rule, the information may be dismissed on
motion of the accused on the ground of
denial of his right to speedy trial. The
accused shall have the burden of proving
the motion but the prosecution shall have
the burden of going forward with the
evidence to establish the exclusion of time
under section 3 of this rule. The dismissal
shall be subject to the rules on double
jeopardy.
Failure of the accused to move for
dismissal prior to trial shall constitute a
waiver of the right to dismiss under this
section.
SEC. 10. Law on speedy trial not a bar to
provision on speedy trial in the
Constitution. – No provision of law on
speedy trial and no rule implementing the
same shall be interpreted as a bar to any
charge of denial of the right to speedy trial
guaranteed by section 14(2), article III, of
the 1987 Constitution.
SEC. 11. Order of trial. – The trial shall
proceed in the following order:
(a) The prosecution shall present evidence
to prove the charge and, in the proper
case, the civil liability.
(b) The accused may present evidence to
prove his defense and damages, if any,
arising, from the issuance of a provisional
remedy in the case.
(c) The prosecution and the defense may, in
that order, present rebuttal and sur-
rebuttal evidence unless the court, in
furtherance of justice, permits them to
present additional evidence bearing upon
the main issue.
(d) Upon admission of evidence of the
parties, the case shall be deemed
submitted for decision unless the court
directs them to argue orally or to submit
written memoranda.
(e) When the accused admits the act or
omission charged in the complaint or
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

information but interposes a lawful with consent man to. Gasabot mi attending the trial. The motion shall be supported
defense, the order of trial may be modified. ato. Pede ibalik sa prosecution by an affidavit of the accused and such other
ang ila witness nga evidence in evidence as the court may require.”
chief kung importante kaayo para
rebuttal. Nya sa sur rebuttal, There is application for examination of witness
pede pud to ibalik sa depensa for accused before trial.
ang iyang witness sa evidence in Nahinumdom mo sa Civil Procedure, katong
chief niya. modes of discovery, like, oral deposition and
NB: The prosecution has the duty written interrogatories. Kung duna kay witness na
to present evidence to prove the maglisod ug tunga during trial or pag-tuo nimo
elements of the crime. maglisod tunga during the trial, is subject nimo
ORDER OF TRIAL: Prosecution has the burden of to oral deposition or written interrogatories.
1. 2. 3. 4. proof. If dili gani siya ka prove Oral deposition and written interrogatories are
PROSECU beyond reasonable doubt then not applicable in criminal cases, are only
DEFENS PROSECUTIO SUR- the accused is entitled to applicable to civil cases.
TION
acquittal. So necessary jud na For criminal cases, what is only applicable is
PRESENT E N'S REBUTTAL
nga ang prosecution shall present Sections 12, 13, and 15.
S PRESENTATI evidence. Section 12, this for examination of a witness for
EVIDENC PRESENT ON OF Sa defense dili na shall but may the accused before trial, if the witness is so sick
E S EVIDENCE present evidence. It depends now or infirm as to afford reasonable ground for
EVIDENC FOR on the assessment of the defense believing that he will not be able to attend the
FIRST E REBUTTAL that the prosecution was not able trial, or resides more than one hundred (100)
to prove the crime beyond kilometers. Meaning, is very far from the place of
reasonable doubt. So, it is proper the court, that it would be very difficult for him to
-Here the This is This is to To refute for the defense that he may file attend during the trial.
witness also the refute the the the so called Demurrer to So, under Section 12, he can be subjected to the
testifies presenta defense's rebuttal Evidence or may waive his right so-called conditional examination.
for the tion of evidence. testimony to present evidence. Moingon ka “Sec. 13. Examination of defense witness;
prosecuti evidence . your Honor, the defense is how made. – If the court is satisfied that the
- GR: dili na waiving our right to present examination of a witness for the accused is
on to in chief
evidence. We will submit that the necessary, an order shall be made directing that
build up sa TUGUTAN
case will now be subjected for the witness be examined at a specific date, time
the case defense. SA COURT decision. and place and that a copy of the order be served
mo present “Sec. 12. Application for examination of witness on the prosecutor at least three (3) days before
- mao ni ug evidence for accused before trial. – When the accused has the scheduled examination. The examination
evidence ang been held to answer for an offense, he may, upon shall be taken before a judge, or, if not
in chief prosecution motion with notice to the other parties, have practicable, a member of the Bar in good
EXCEPT: witnesses conditionally examined in his behalf. standing so designated by the judge in the order,
The motion shall state: or if the order be made by a court of superior
there is a
(a) the name and residence of the witness; jurisdiction, before an inferior court to be
valid reason (b) the substance of his testimony; and designated therein. The examination shall
(c) that the witness is sick or infirm as to afford proceed notwithstanding the absence of the
reasonable ground for believing that he will not prosecutor provided he was duly notified of the
EXAMPLE: be able to attend the trial, or resides more than hearing. A written record of the testimony shall
Si A ang private complainant. one hundred (100) kilometers from the place of be taken.”
Nag present siya ug evidence for trial and has no means to attend the same, or The accused has to file a motion or application
the crime of Rape. Unya ni that other similar circumstances exist that would for the examination of the said witness.
testigo ang defense nga wa oy, make him unavailable or prevent him from And if the court is satisfied that the examination
Page | 331

of the witness of the accused is necessary, then
the court will now issue an order directing that
the witness be examined at a specific date, time
and place, and that a copy of the order be served
on the prosecutor at least three (3) days before
the scheduled examination. <Codal provision>
This is equivalent to oral deposition sa civil cases.
Pero dili nah nimo tawgon ug oral deposition. It
should be called, conditional examination.
Unya lahi ni siya sa oral deposition, kay diri
JUDGE man, or if not practicable, a lawyer
designated by the court.
What are the grounds for conditional examination
as far as the witnesses for the accused is
concerned?
1. that the witness is sick or infirm as to
afford reasonable ground for believing
that he will not be able to attend the trial,
2. or resides more than one hundred (100)
kilometers from the place of trial and has
no means to attend the same,
3. or that other similar circumstances exist
that would make him unavailable or
prevent him from attending the trial.
- Example ani, the witness is going
abroad to work.
“Sec. 15. Examination of witness for the
prosecution.– When it is satisfactorily appears
that a witness for the prosecution is too sick or
infirm to appear at the trial as directed by the
court, of has to leave the Philippines with no
definite date of returning, he may forthwith be
conditionally examined before the court where
the case is pending. Such examination, in the
presence of the accused, or in his absence after
reasonable notice to attend the examination has
been served on him, shall be conducted in the
same manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination at the trial. Failure or refusal of the
accused to attend the examination after notice
shall be considered a waiver. The statement
taken may be admitted in behalf of or against the
accused.”
What about on the part of the prosecution?
Naa sa Section 15. Still termed as
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
conditional examination. When it is satisfactorily
appears that a witness for the prosecution is too
sick or infirm to appear at the trial as directed by
the court, of has to leave the Philippines with no
definite date of returning, he may forthwith be
conditionally examined.
BUT, take note, dunay kalainan kung
prosecution witness. Because when the witness
be conditionally examined is that of the
prosecution, the judge himself where the case is
pending should be the one who will receive the
testimony of the witness. Siya jud mismo.
Question: Ngano di man pwede laing
judge? Ngano sa defense nga pwede raman laing
judge or abogado man gani? Why is it that it
should be the judge himself where the case is
pending?
Answer: Tungod kay improtatnte kaayo
na ang judge nga maoy naghandle sa kaso
makakita sa demenur sa witness. Demenur?
Kannag unsay itsusra. Gi-unsa pagtubag.
Naghilak ba o nan]ngisi. Importante nah sa kaso
kay kanag demenur or demenur evidence, that
can guide the court in determining whether the
witness sis credible or not. And that is very
important for the judge in deciding the case.
The conduct of the examination would be the
same as during the trial. What does it mean?
There would be direct examination, cross-
examination. Failure of the part of the accused to
attend or his counsel to attend is considered as
waiver.
Manguerra vs. Resos, August 28, 2008
- Regarding conditional examination.
“Sec. 14. Bail to secure appearance of
material witness. – When the court is satisfied,
upon proof of oath, that a material witness will
not testify when required, it may, upon motion of
either party, order the witness to post bail in
such sum as may be deemed proper. Upon
refusal to post bail, the court shall commit him to
prison until he complies or is legally discharged
after his testimony has been taken.”
This is another instance where the court will
require an ordinary witness to put up a bail.
Under ordinary circumstances, ang kanang bail
applicable ra nah siya sa accused. Pero dunay
duha ka instances wherein a mere witness could
be required by the court to post bail One of these
2 circumstances is mentioned in Section 14.
Example, a very material witness refused to
testify, the court may require him to put up a
bail. And if he cant post bail, the curt will put him
in jail, until he complies or testifies. Meaning, he
can be cited for contempt.
Another instance when there is substitution, in
Section 14, Rule 110, when there is substitution
of information.
“Sec. 16. Trial of several accused. – When
two or more accused are jointly charged with an
offense, they shall be tried jointly unless the
court, in its discretion and upon motion of the
prosecutor or any accused, orders separate trial
for one or more accused.
For example, some of the accused are at large,
ang-ang man huwaton sila. There could be a
separate trial.
If naa ra sila, they can be tried jointly.
“Sec. 17. Discharge of accused to be state
witness. – When two or more persons are jointly
charged with the commission of any offense,
upon motion of the prosecution before resting its
case, the court may direct one or more of the
accused to be discharged with their consent so
that they may be witnesses for the state when,
after requiring the prosecution to present
evidence and the sworn statement of each
proposed state witness at a hearing in support of
the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony
of the accused whose discharge is requested;
(b) There is no other direct evidence available for
the proper prosecution of the offense committed,
except the testimony of said accused;
(c) The testimony of said accused can be
substantially corroborated in its material points;
(d) Said accused does not appear to be the most
guilty; and
(e) Said accused has not at any time been
convicted of any offense involving moral
turpitude.
Evidence adduced in support of the discharge
shall automatically form part of the trial. If the
court denies the motion for discharge of the
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accused as state witness, his sworn statement
shall be inadmissible in evidence.”
THIS IS VERY IMPORTANT.
This is one instance wherein the accused would
be discharged from the information or a criminal
case to be used as a state witness.
This presupposes that there are two or more
accused. Kon muingon gani ka state witness,
pasabot apil nah siya sa kaso.
So, he can be excluded from the case on the
condition that he would testify against his co-
accused.
Kanus-a man ni siya mahitabo? Usna man
buhaton ani?
- The prosecution should file a
motion; there should be a
motion. The court cannot moto
proprio order the discharge of an
accused to be utilize as a state
witness. There has to be a motion
form the prosecution and the
same has to be filed before
resting its case.
Unsa man ng “resting its case”?
- The prosecution has already done
presenting its evidence.
If the prosecution wants to charge an accused to
be utilized as aa state witness, the same has to
be done before it rested its case. Sa di pa siya
mu-close sa iyahang evidence.
The motion shall be accompanied by the sworn
statement of the proposed state witness.
Unsay naa sa sworn statement sa accused?
- Naa didto ang iyahang narrations
sa iyahang participation sa kaso.
Ngano man? Kay tungod
necessary man nah, one of the
requisites that the accused to be
discharged must not be the most
guilty or does not appear to be
the most guilty. Meaning guilty
pud siya. Pero he is not the most
guilty.
These are the requisites, and all the requisites
must concur:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(a) There is absolute necessity for the testimony
of the accused whose discharge is requested;
What do you mean by ‘absolute necessity”?
Kanus-a man ka makaingon na the testimony of
the accused is absolutely necessary?
- When there is no eye-witness. So, since
no eye-witness, there is no direct evidence than
the testimony of one of the accused would be
absolutely necessary.
- For example, gi-patay ug girape ang
biktima. Kinsa pa may makatestigos ana. So
necessary jud kaay na usa sa mga accused
himoong state witness.
(b) There is no other direct evidence available for
the proper prosecution of the offense committed,
except the testimony of said accused;
(c) The testimony of said accused can be
substantially corroborated in its material points;
(d) Said accused does not appear to be the most
guilty; and
When ka mahimog most guilty?
- Principal by direct participation,
Principal by indispensable
cooperation, and Principal by
inducement. Sa kani tulo kinsa
may most guilty? INDUCEMENT,
and mastermind maoy most
guilty. Dili siya pwede mahimog
state-witness.
People vs.
Sandiganbayan, July
16, 1997
Naay kaso naabot sa
SC, ingon accused, object
sa motion kay there is
conspiracy. Since there is
conspiracy, all the
accused are equally
guilty. You cannot say
that he is the most guilt
and he is the least guilty.
They are equally guilty;
hence he is disqualified
to be a state witness.
HELD: SC ruled that,
the rule on substantive
law or on conspiracy
which says that the
conspirators are equally
guilty does not apply.
Their individual
participation of the
accused shall be
considered, not the rule
that the conspirators are
equally guilty.
(e) Said accused has not at any time been
convicted of any offense involving moral
turpitude.
It could be that the accused is convicted of a
crime, provided that the crime does not involve
moral turpitude.
Unsa may crime involving moral turpitude?
- Example, Falsification, Murder.
All these requisites must be present.
Once a motion to discharge an accused to be
considered as state witness is filed, the court has
to set the motion for hearing. Evidence adduced
in support of the discharge shall automatically
form part of the trial. Pareho ra sa evidence in
support for the motion to post bail.
Take note that when the motion is granted,
meaning if the court wil discharge the accused to
be used as state witness, the order of the court
discharging that accused is considered an
ACQUITTAL. And therefore, the same cannot be
reversed on appeal. The same cannot be
subjected to the motion for reconsideration by
the prosecution. Because it would violate the
right of the accused to speedy trial(double
jeopardy man guro?). Pareho ra nah siya sa
judgment of acquittal. Sa judgment on acquittal
of the accused gani, that is the end of the road,
generally, for the prosecution. Because the
prosecution cannot appeal. Equivalent to an
order of acquittal. (People vs. Larranaga, 421
SCRA 530, Bometco vs. Son, 209 SCRA 329)
So, it cannot be reversed on appeal. It cannot
also be subjected to motion for reconsideration
because it is equivalent to acquittal.
“Sec. 18. Discharge of accused operates as
acquittal. – The order indicated in the preceding
section shall amount to an acquittal of the
discharged accused and shall be a bar to future
Page | 333

prosecution for the same offense, unless the
accused fails or refuses to testify against his co-
accused in accordance with his sworn statement
constituting the basis for his discharge.”
Does it mean that, that order cannot be
absolutely revoked by the court?
- NO! There is one instance that
the court can reinstate the
accused who is discharged to be
utilized as a state witness. If the
accused fails or refuses to testify
against his co-accused in a
accordance with his sworn
statement. Sa ato pa, this is the
only instance wherein the court
could reinstate the accused who
has been discharged when he
refuses to testify against his co-
accused as he promised, or if he
testifies but not anymore in
accordance with his sworn
statement.
Suppose the court will deny the motion to
discharge the accused, can the prosecution use
the sworn statement of the accused admitting
the commission of the crime?
- NO! In case of denial of the
motion for discharge of the
accused as state witness, his
sworn statement shall be
inadmissible in evidence against
him.
Kay dili man kaha ma-reverse ug appeal,
pananglitan kung nasayop jud ang court. For
example, one of the requisites is that accused
has not at any time been convicted of any
offense involving moral turpitude. It could be
found later on that he is convicted of robbery.
And despite that the court granted the motion,
what could be the remedy fo the defense?
- That could be certiorari. That
order could be questioned by
through petition for certiorari in
the ground of grave abuse of
discretion.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Suppose the motion to discharge the accused is Under this law, the police or the DOJ may not
denied by the court, can the accused who is to be
discharged but was not discharged, can testify include the person who has participated in the
against his co-accused? commission of the crime, but instead use him
- Yes. But he is not anymore as a state witness.
considered a state witness, but a Rule 119, Sec 17
witness for the prosecution.
- State witness necessarily Ang accused na gihimog state witness na-apil Pwede
connotes that he is discharged to siya didto sa information. Apil iyahang ngalan. siya ba
the case. But when you say nahita
witness to the prosecution or was no
witness to the state, that she wo
presupposes he remains an
accused and he could be The ac
convicted of the charge. Unlike if includi
he is a state witness, he is becaus
included form the charge. accuse
si Alfa
There is another way of making or excluding an katung
accused from the charge or information. That is mudet
through Republic Act 6981 or Witness Protection state w
Program. ang re
Under this law, when a heinous crime is SC.
committed by 2 or more persons, the prosecution
of the police may exclude may not include 1 or 2 Sakto
of the participants in the charge in order to utilize apil s
him as a state witness. determ
There are conditions that must be
followed. More or less the conditions are similar LOOK
to the requisites mentioned in Section 17, Rule Augus
119. Conditions under RA 6981: ruling
1. That the offense is considered a grave 6981 i
felony. regard
2. When there is no other direct evidence charge
available.
3. When there is absolute necessity for his
testimony. Another problem regarding that was raised in
4. His testimony can be substantially relation to Sec. 17, is that case I given to you,
corroborated on its material points. Soberano et al vs. People, 472 SCRA 125. Unsa
5. He does not appear to be the most guilty; may nahitabo aning kasoha?
and Soberano et al vs.
6. He has not at any time been convicted of People, 472 SCRA
any offense involving moral turpitude. 125
The accused in
More or less the same. But this is not applicable relation to the killing of
to any crime, BUT only to a crime that is Bobby Dacer and his
considered a grave offense. driver. An information
for double murder was
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

filed against 21 amended information, motion, to amend the

accused. Unya among Aquino and Mancao information by
the 21 accused, apil were included. The co- excluding an accused
didto sa information accused question the pursuant to Section 14,
were Superintendent motion arguing that the Rule 110. Sa ato pa
Glen Dumlaw ug sila same could not be ang demarkation line
Superintendent Michael done because diha, arraignment.
Rey Aquino and according to the Before arraignment,
Superintendent Cesar accused, what should pwede pa maka-
Mancao. When Dumlaw be done is instead of exclude ang
was arrested, he motion to amend, the prosecution by filing a
executed a statement prosecution to should motion in court notice
implication police have filed must be to the offended party
officers Mancao and motion to discharge asking for the exclusion
Michael Re Aquino. the accused under Rule of an accused to be
Wala unta to sila apil sa 119, Section 17. utilized as a state
promero si Mancao ug The other co- witness. But after
Aquino. Naangin silang accused argued that arraignment, then
duha. Because of this, the prosecution has no Section 17, Rule 119
during arraignment, power to exclude shall be followed.
the prosecution asked Dumlao from the Meaning, instead of a
for resetting and ask charge because it is motion to amend the
the court that the within the exclusive information, it should
prosecution be allowed power of the court to be a motion to
for re-investigation. determine WON an discharge an accused,
And the same was accused has to be then attaching thereto
granted. discharged. the sworn statement of
After the ISSUE: Can the the proposed state
reinvestigation, the prosecution exclude an witness.
prosecution filed a accused from the Sec. 19. When mistake has been made in
motion to amend the charged by filing a charging the proper offense. – When it
information. motion to amend the becomes manifest at any time before judgment
Hinumdumi wa pa information? Or should that a mistake has been made in charging the
arraignment. Ngano the prosecution file in proper offense and the accused cannot be
nag-file man sila ng order to discharge an convicted of the offense charged or any other
motion na as a matter accused, should the offense necessarily included therein, the accused
of right man unta ni prosecution file a shall not be discharged if there appears good
siya sa prosecution motion to discharge cause to detain him. In such case, the court shall
basta before the accused, thereby commit the accused to answer for the proper
arriganment. They file leaving it to the court offense and dismiss the original case upon the
a motion to admit to determine WON filing of the proper information.”
amended information such accused is to be This is what we called substitution. When there is
because they want to charged or not. a mistake in the filing of the proper charged
exclude Dumlaw to be HELD: According to the againts the accused, then the accused cant be
utilized as a state SC, if an accused has convicted of that charge and the curt may order
witness. not yet been arraigned that the proper charge should be filed. In the
Dumlaw was it is within the power of meantime, the accused shall not be discharge if
excluded in the the prosecution to file a it appears that there is good cause to detain him.
Page | 335

Amendment vs. Substitution (Already discussed
daw.)
“Sec. 20. Appointment of acting prosecutor.
– When a prosecutor, his assistant or deputy is
disqualified to act due to any of the grounds
stated in section 1 of Rule 137 or for any other
reason, the judge or the prosecutor shall
communicate with the Secretary of Justice in
order that the latter may appoint an acting
prosecutor.”
“Sec. 21. Exclusion of the public. – The judge
may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during
the trial is offensive to decency or public morals.
He may also, on motion of the accused, exclude
the public from the trial except court personnel
and the counsel of the parties.”
Another, when the case involved a minor either
as an accused or a private complainant.
“Sec. 22. Consolidation of trials of related
offenses. – Charges for offenses founded on the
same facts or forming part of a series of offenses
of similar character may be tried jointly at the
discretion of the court.”
This is similar to Rule 31, consolidation of cases.
When several criminal cases are filed and they
are related to each other, meaning involving the
same parties, they can be consolidated. Meaning
it can consolidated in 1 court and there could be
joint trial. But that would be the discretion of the
court.
Discuss man ta ganiha regarding double
jeopardy, nga katong gibuak ang complex crime.
That could be proper for consolidation.
“Sec. 23. Demurrer to evidence. – After the
prosecution rests its case, the court may dismiss
the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused
with or without leave of court.
If the court denies the demurrer to
evidence filed with leave of court, the accused
may adduce evidence in his defense. When the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
demurrer to evidence is filed without leave of
court, the accused waives the right to present
evidence and submits the case for judgment on
the basis of the evidence for the prosecution.
The motion for leave of court to file
demurrer to evidence shall specifically state its
grounds and shall be filed within a non-extendible
period of five (5) days after the prosecution rests
its case. The prosecution may oppose the motion
within a non-extendible period of five (5) days
from its receipt.
If leave of court is granted, the accused
shall file the demurrer to evidence within a non-
extendible period of ten (10) days from notice.
The prosecution may oppose the demurrer to
evidence within a similar period from its receipt.
The order denying the motion for leave of
court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal
or by certiorari before judgment.”
THIS IS AVERY IMPORTANT SECTION. 5
STARS, THAT WOULD GUIDE YOU.
We discussed demurer to evidence when we
discussed Civil procedure.
Demurer to evidence in criminal procedure is
allowed after the prosecution rests its case.
Magharay-haray na ang prosecution.
The court may dismiss the action on the ground
of insufficiency of evidence:
(1) on its own initiative, meaning moto proprio, if
after assessment of the evidence presented by
the prosecution, the court finds that the same is
insufficient ti cnvict the accused.
(2) Kasagaran kani. Upon demurrer to evidence
filed by the accused with or without leave of
court.
Difference of Demurer to Evidence in Civil
case vs. Demurrer to Evidence in Criminal
Case
Civil case: On important kalahian is that the
defendant can file demurer to evidence even
without leave of court. No permission from the
court. And once the demurrer to evidence is
denied, even if it is filed without leave of court,
the defendant could still present evidence. Maski
without leave of court.
Criminal Case:
However, in criminal case, there should
be leave of court prior to the filing if the demurer
to evidence. So, in criminal case, 2 step jud nah
siya. (1) First, there should be a motion for leave
to file demurer to evidence, and if you’re motion
for leave to file demurer to evidence is granted.
(2)That would be the time you file the demurrer
to evidence.
Pero usahay ang krote pwede ara amdlai
or mausa na usahan, file kag motion for leave,
attach na daan ang demurrer to evidence. Pwed
na. And important ana naa kay motion for leave
to file demurer toe evidence.
In Civil Case:
In civil case, way risgo ang defendant sa
trial court. Why? Because if the demurer to
evidence is denied, the defendant can present
evidence. If it is granted, tua iya problema sa
apil. Because when demurer toe evidence is
granted, the plaintiff can appeal. Kay actually ng
demurer to evidence is a motion to dismiss on
the ground of insufficiency of evidence. So, if i-
grant nah sa court ang demurrer to evidence the
order is considered as a final order. There is
nothing more to be done be the court, hence, the
plaintiff can file an appeal. Ang risgo ani kay naa
sa appeal in civil case. Kay kung i-reverse gani
didto sa appellate court, you have deemed to
have waived your right to present evidence. And
the appellate court has to decide the case based
on the evidence on record. The appellate court
will not and should not remand the case to the
trial court for the reception of evidence of the
defendant. What should done by the appellate
court is to decide the case based on the evidence
on record, based on the evidence of the plaintiff
alone.
In criminal case:
Lahi diri kay kung i-grant sa court and
demurrer to evidence, that would be equivalent
to acquittal. Ang id if it is acquittal the
prosecution cannot appeal. The prosecuion
cannot file motion for reconsideration because it
would place the accused under double jeopardy.
Mu-apply nab a ang 4 ka requisites sa first
jeopardy? YES! There is valid information, the
court has jurisdiction, the accused has been
Page | 336

arraigned, and the accused is now acquitted
because to evidence if granted, it is equivalent to
acquittal. But if the demurrer to evidence has
been filed with prior leave of court, then that is
denied, the remedy of the accused is to present
evidence. Because the accused has not deemed
to have waived his right to present evidence. Ang
risgo diha if mu-file ka ug demurrer to evidence
without leave of court because if denied, you are
taking the risks, then you are deemed to have
waived your right to present evidence. Good if
the court would grant your demurre. Pero s
ainutok na pagpaagi, file jud ka ug elave.
Unya if nagtuo jud ka na wa jud
ebidensiya jud ang prosecution, ayaw nalang file
of demurer. Just ell the court we are not
submitting. Kapoy-kapoy lang ka submit ana.
Manifest nalang na walay ebidensiya.
Unsa may buhaton sa court kung pananghlitan,
dunay demurer to evidence?
So, if makita sa court na insufficient ang
evidence on record. Rant the demurer.
Pananglitan, sufficient ang evidence? Usna
buhaton sa court?
Deny the demurre.
Unsa may amount sa evidence na tan-awon sa
korte?
Karemembr mo diri pa nag-file sa
prosecution office? Unsay pangitaon? Probable
cause. Gamay ra nah siya probably the
respondent is guilty and shall be held for trial.
File sa court, then trial. Presentation of
evidence ang proscecution. Pagkahuman jud ug
presentar ang prosecution, mag-establish gani
nah siya ug PRIMA FACIE. Maka-establish gani
nah siya gikan sa probale cause unya mahimog
PRIMA FACIE, then the demurrer to evidence has t
be denied. Sa ato pa nigka denysa dmeurrer to
evidence, ang reasons sa court ana di nah
muingin na demurrer is denied because
procecutionw a snot able to establish the guilt of
the accused BEYOND REASONABLE DOUBT. Kay if
kana proof beyond… wan a ka that means din a
nah ma-destroy. Ang iingon ra “demurrer to
evidence is denied because amount of evidence
presented by prosecution has constituted
establish prima facie evidence.” Pria facie
apamn, so possible nigpresentar ug evidence sa
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
defense, posibli mawagtag prima facie,
makadaog ka. Prima facie raman, it means the
evidence presented could still be cntroverted or
overturned by the evidence of the adverse party.
Mao nah i-deny ang demurer kay mo-constitute
ug prima facie evidence.
Present evidnce ang defense, nahuman.
Mudesisyon na ang court. PROOF BEYOND
REASONABLE DOUBT. Kanang gibasihan na
evidence sa probable cause, mao ra nah na
ebidensiya. Unya na subject ug gross nahimog
prima facie. Gibirahan sa ug ebidensiya sa
defense. Nahimog proof beyond reasonable
dount nuon. Naconvict siya ( HAHAHA!) Gikan sa
probable cause, nahimog prima facie, nahimog
proof beyond reasonable doubt.
Ang affidavit sa complainant sa rape, mao ra to
gibasehan sa pag-establish sa probable cause.
Nag-hearing nasubjct sa drect examination, ug
corss examination. Nahmog prima facie.
Nitestigos ang accuse nahimo nuon ug proof
beyond reasonable doubt. Ug wa pud siya
nitestigos wala present evidence samot amhimog
proof beyond reasonable doubt. (HAHA!)
Kaning demurrer to evidence naghisgot man ta
ganiha motion to dismiss on the ground of
violation of speedy trial, that is one instance
wherein the dismissal is with the express consent
of the accused. BUT, still the accused could raise
double jeopardy. Because the dismissal is
considered dismissal on the merits. The dismissal
is considered dismissal on the merits. Is
considered acquittal on the merits.
- Karon this is another instance
wherein. Because demurrer to
evidence is actually a moton to
dismiss on the ground of
insufficiency of evidence. If the
court grants the demurrer to
evidence, meaning the court
dismissed the case upon the
motion of the accused, yet,
despite dismissal is with express
consent of the accused, double
jeopardy would sit in, because
dismissal is considered acquittal
on the merits.
The order denying the motion for leave of
court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal
because that is an interlocutory order.
Unsa may buhaton sa accused if deny
ang iyang demurrer to evidence or ang iyahang
motion for leave?
- Go to trial and present evidence.
It cannot alsoe be subject of certiorari. Meenaing
tos ay amski interlocutory di gihapon ka ka-file
ug petition for certiorari. Pero actually naay kaso
abot SC, na pwede ra CERTIORARI. People vs.
Lagyo Meaning Certiorari can be availed by the
defense.
On the other hand, if the demurer to
evidence is granted by the court, dili man maka-
appeal ang prosecution. Pero if magtuo
prosecution na there is a grave abuse of
discretion, kanang petition for certiorari kay
always available basta naay grave abuse of
discretion.
“Sec. 24. Reopening. – At any time before
finality of the judgment of conviction, the judge
may, motu proprio or upon motion, with hearing
in either case, reopen the proceedings to avoid a
miscarriage of justice. The proceedings shall be
terminated within thirty (30) days from the order
granting it.”
This is a remedy pananglitan dunay mga
evidence na wala na-present. You call it re-
opening of trial. Kahinumdomm mo civil
procedure, walay provision regarding re-opening
of trial in civil procedure. Jurisprudence ra nah.
Peor sa criminal cases, duna gyud particular na
provision. Bagag-o ni siya.
When?
- At any time before finality of the
judgment of conviction, the judge may, motu
proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a
miscarriage of justice.
- Basta sa wla pa na-final ang
decision. It could be before
promulgation or after
promulgation but before finality
of the decision.
Page | 337

Either party could avail of this remedy. Accused
or prosecution.
Usna may ground niya?
In the interest of justice. There is a case
cited in your book, decided by the SC about ani.
Cabarles vs. Maceda, February 20, 2007.
JANUARY 18, 2013 1ST PART
We are now in Rule 120. But before
discussing Rule 120 we will finish some matters
that we left out when we discussed demurrer to
evidence. This question might come out in the
bar again.
Now in 1994 BARQ it was asked what do
you mean by MOTION TO ACQUIT? Is it allowed?
Motion to Acquit simply means Demurrer to
Evidence. So motion to acquit is allowed after
the prosecution rested its case. Kanang motion
to acquit that is actually demurrer to evidence
because demurrer to evidence is actually motion
to dismiss on the ground that the evidence
presented by the prosecution is insufficient to
convict the accused.
Remember that the motion for leave to
file demurrer to evidence must be filed in Court
within 5 days after the prosecution rested its
case. And if the court grants the leave or
permission to file demurrer to evidence then the
defense should file demurrer to evidence within
10 days. In other words all in all the defense has
15 days. Pero uban mga Korte arun dili
malangan ang pag dispatchar sa kaso tagaan na
lang siya ug 15 days or 10 days to file motion for
leave to file demurrer to evidence and the
defense has to attached in the motion the
demurrer to evidence.
And in the motion for leave to file
demurrer to evidence the defense should give
grounds why is it he should file demurrer to
evidence. He should give grounds. Sagad sa
iyang grounds nga wala ka present ug sufficient
evidence ang prosecution.
In one case decided by the Supreme
Court, this is a murder case, the accused is
charged with murder after the prosecution rested
its case the defense filed demurrer to evidence.
Now the Court denied the demurrer to evidence.
But the Court stated in the order denying the
demurrer to evidence that although the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
prosecution was not able to prove the crime of
murder it was able to prove the crime of
homicide. That’s the reason why the Court did
not grant the demurrer to evidence. Because of
that order of the Court that the evidence
presented by the prosecution established
homicide only the defense after the denial
against evidence, presented its evidence
because the remedy of the defense once the
demurrer to evidence is denied is to present its
evidence. Of course that presupposes that there
must have been prior leave of court kay kung
wala gani leave of court that would be considered
as a waiver on his part to present evidence. In
that case after the court denied the demurrer to
evidence of the accused, the accused presented
his evidence and at the same time filed a motion
to post bail based on the order of the court that
the evidence presented so far by the prosecution
would only establish the crime of homicide. The
question is: Is there a need for the court to hear
or to send the motion to post bail for hearing?
Di ba ato ma nahibaw-an nga automatic
gyud na nga kung dunay motion to post bail in
crimes wherein the penalty imposable is
reclusion perpetua or life sentence automatic
gyud na nga dunay hearing for the reception of
the evidence of the prosecution to establish that
the evidence against the guilt of the accused is
strong. Now in this case is there a need for the
court to send the motion for hearing for the
reception of the evidence of the prosecution.
According to the Supreme Court there is NO
NEED. Because the prosecution is already done
presenting its evidence. PP vs. Plaza, October
2, 2009. Logical ra man pud na ka presentar na
man ang prosecution sa iyahang ebidensya, na
prove na man sa prosecution ang iyang
ebidensya so unsa pa man d I nga ebidensya ang
iyang e present? So logical ra.
Now, another point possible ni ato
nakalimtan, regarding motion to post bail,
suppose in crimes wherein the imposable penalty
is life imprisonment or reclusion perpetua,
suppose the court granted the motion to post
bail. Meaning the court allowed the accused to
post bail. However, after the parties presented
their evidence the court rendered judgment
convicting the accused. What should the court
do with the bail of the accused? The court should
CANCEL the bail. Why should the court cancel
the bail? Because the guilt of the accused has
already been proven beyond reasonable doubt
dili lang kay maka ingun ka nga evidence against
the accused is strong kung dili proof beyond
reasonable doubt na gyud ang na presentar sa
prosecution.
Then another matter that perhaps we left
out is regarding TRIAL IN ABSENTIA. Now,
remember what you have learned in your Political
Law that trial in absentia is only proper after the
accused has been arraigned. Without
arraignment trial in absentia would not be proper.
So what should the court do with the case? The
court would have to archive the case, meaning e
suspend usa ang proceedings. Pakatugon lang
usa to ang kaso dili lang usa to e set for hearing.
Ang tawag ana ARCHIVE. Dili na buot ipasabot
nga ang kaso ipadala didto sa Bureau of Archive
didto sa Mabolo anha ran a sa KORTE ang record.
Mag huwat nga madakpan ang accused kay dili
man makasugod sa proceedings kay trial in
absentia is only proper after the accused has
been arraigned and that the accused has been
notified of the trial and his absence was
unjustifiable. There are 3 requisites for a valid
trial in absentia.
Then another regarding motion to quash.
In a motion to quash on the ground that the facts
charged do not constitute an offense, pareho ra
gyud ni siya sa civil case nga motion to dismiss
on the ground that the facts alleged do not
constitute any cause of action or the complaint
does not state any cause of action or meaning
there is insufficiency in the allegations in the
complaint. Sa ato pa nga if the accused file a
motion to quash on the ground that the acts
alleged in the information do not constitute any
offense in resolving the motion the court is not
allowed to present evidence alliunde. Kanang
EVIDENCE ALLIUNDE kana nang other evidence.
Alliunde meaning other. The court will have to
limit its findings on the four corners of the
information. So iya nang basahon diha sa Korte
ang kanang allegation sa information kung tinuod
ba gyud ang allegation sa akusado nga ang mga
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

facts nga gi allege diha dili mu constitute any writing. Kani adto panahon sa Justice of the In case the judgment is of acquittal, it
offense much less the crime charged. Peace, kato siya mao ra toy korte nga dili court of shall state whether the evidence of the
Let us go now to Rule 120. Rule 120, this
record, not required the record the testimonies of prosecution absolutely failed to prove the
is about judgment.
the parties the statements of the counsels as well guilt of the accused or merely failed to
as the judge, mao to nga inig desisyun kani adto prove his guilt beyond reasonable doubt. In
RULE 120
usa ra jud ang sentence nga isulti sa Court. either case, the judgment shall determine if
JUDGMENT
“ikaw pildi, ikaw daog.” Dili ka kabalo nganu na the act or omission from which the civil
daog or pilde ka. Pero karun tanan Korte are liability might arise did not exist.
Section 1. Judgment; definition and form.
considered court of records and the judges are
– Judgment is the adjudication by the court
required that there decision must be in writing Participation of the accused. Kahibalo na
that the accused is guilty or not guilty of
personally and directly prepared by the judge man ta nga dunay 3 ka classes sa participation of
the offense charged and the imposition on
and it must be signed by him and aside from that the accused. He can be a principal, accomplice
him of the proper penalty and civil liability,
the decision must contain facts and the law on or accessory. Now way problema ug usa ra ang
if any. It must be written in the official
which the decision is based. akusado he is always the principal, the court
language, personally and directly prepared
by the judge and signed by him and shall need not state in the decision unsay participation
Mu ingun gani ka ug facts kato nang sa accused because he is deemed to be the
contain clearly and distinctly a statement of
ebidensya nga gi presentar sa mga parties kato principal. Pero kung daghan gani sila, if there are
the facts and the law upon which it is
nang gipanulti sa mga witnesses. Unya of course two or more accused it is necessary for the court
based.
balaud, mao nay gibasehan sa iyang decision. to state what is the participation of each of the
Iyang gi cite ang facts moa ning balaud ang accused.
Section 1 defines what is judgment. (JD
iyang gi apply.
read the codal.) Unsa man ang official language
Now we have learned that acquittal of
nato? English and Filipino. Ang Filipino ang alyas
Sec. 2. Contents of the judgment. – If the the accused does not mean that he is also free
ana Tagalog. Why is it that it has to be in
judgment is of conviction, it shall state (1) from any civil liability, it could be that an accused
writing? Nganu kailangan man isuwat? So that it
the legal qualification of the offense is acquitted of the crime but the court may still
must be in writing, not only that it has to be in
constituted by the acts committed by the validly require him to pay civil liability. What are
writing it must be supported by facts and the law.
accused and the aggravating or mitigating these instances?
According to the Supreme Court in the case of
circumstances which attended its
PP vs. Bugarin, 273 SCRA 384, the
commission; (2) the participation of the (1) when the court rules that the liability
requirement that the decisions of courts must be
accused in the offense, whether as of the accused is purely civil in nature, kung mu
in writing and that they must set forth clearly and
principal, accomplice, or accessory after the ingun ang court aw wa ma niy crime na commit,
distinctly the facts and the law on which they are
fact; (3) the penalty imposed upon the ang liability sa akusado civil liability ra
based serves many functions. It is intended
accused; and (4) the civil liability or
among others to inform the parties of the reason
damages caused by his wrongful act or (2) when the accused is acquitted based
for the decision so that if any of them appeals he
omission to be recovered from the accused on reasonable doubt, but dili pud na 100% nga
can point out to the appellate court the finding of
by the offended party, if there is any, unless kung e acquit siya based on reasonable doubt
facts or the rulings or points of law with which he
the enforcement of the civil liability by a automatically mu follow nga civilly liable siya, dili
disagrees. More than that the requirement is an
separate civil action has been reserved or pud na, kay kung na acquit siya based on
assurance to the parties that in reaching
waived. reasonable doubt nya tan-aw sa Korte wa gyud
judgment the judge did so through the processes
ma prove ang crime unya ang civil liability sa
of legal reasoning. So the decision must be in
Page | 339

akusado nagagikan sa crime then the court may
not order the accused to pay civil liability
So those are some of the instances
wherein civil liability might be awarded by the
court even if the accused is acquitted.
Sec. 3. Judgment for two or more
offenses. – When two or more offenses are
charged in a single complaint or
information but the accused fails to object
to it before trial, the court may convict him
of as many offenses as are charged and
proved, and impose on him the penalty for
each offense, setting out separately the
findings of fact and law in each offense.
We have learned that an information or
complaint should only charge one crime or one
offense. However if an information or complaint
charges more than one offense and the accused
did not file the motion before arraignment the
same would be considered waived and what will
happen? The accused can be convicted as many
crimes as charged and proved. Arun man gud
ma convicto ang akusado kinahanglan nga ang
elements sa crime kinahanglan ma allege unya
kinahanglan nga ma prove. Kana jud duha. The
crime must be alleged and proved. What do you
mean by proved? Meaning the prosecution was
able to present sufficient evidence to establish
the guilt of the accused beyond reasonable
doubt.
By the way regarding sa judgment, the
decision must be signed and promulgated during
the incumbency of the Judge who signed the
same. Sa ato pa kung ang decision nga gi
pirmahan sa judge pag promulgate ni ana was
na sa serbisyo ang judge for example ni retire na
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
or patay na siya or na dismiss siya, dili na pwede
nga ma promulgate kanang decision.
Kani man gud sa criminal case two step
man gud ang pag promulgate sa decision. Mas
kuti gamay kay sa civil. Ang civil simple ra kayo,
ang judge igkahuman ug pirma sa decision
ihatag niya ngadto sa clerk of court, iyang e file
ngadto sa clerk of court unya ang clerk of court e
release na ngadto sa mga parties, mao na nay
promulgation, one step only. Pero sa criminal
cases diri sa trial court, (1) E file ngadto sa clerk
of court unya (2) e promulgate in open court.
Meaning the decision shall be read in open court.
2-step. Mao na siyay promulgation sa criminal
case.
Kinahanglan nga sa pagbasa ni ana in
open court. Kinahanglan naa pa nang huwes nga
nipirma ni ana. Meaning buhi pa na siya, wa pa
siya mu retire, wa siya ma dismiss kay kung wa
na gani na siya sa serbisyo aw dili na na siya
pwede nga ma promulgate. Bisag duna pay
decision gipirmahan unya nagpa abot na lang sa
day of promulgation aw dili na na siya ma
promulgate. Void na na. So ang buhaton ana
mag assign ug laing judge unya mag preparar ug
laing decision, possible pud nga ang judge pud
nga e assign, e copy na lang unya pirmahan den
promulgate, there dilil na na siya decision sa
katong judge nga mi retire or namatay sa buhi na
to nga judge decision kay iyaha mang pirma mu
na affix didto. If katong iyang gipirmahan void to
kay wala ga discuss sa facts or law aw siya na
ang manubag.
Now sa decision pud sa Court, the court
should use the proper penalty, the proper term of
the penalty. For example when the penalty
imposable for the crime is reclusion perpetua, the
court is not allowed to use life imprisonment
because these two penalties are different. Dili
kay usa ra ka judge ani ang na suspenso or
nasilutan tungod kay wa makagamit ug tarung sa
penalty. Kay lahi man ni. Because we have
learned that reclusion perpetua has accessory
penalties whereas life imprisonment way
accessory penalties. Ang naka disadvantage
lang pud sa life imprisonment kay you will be
imprisoned for the whole life whereas reclusion
perpetua although it has accessory penalties
duna man siyay limit nga 20 years and 1 day to
40 years with the possibility of parole upon
serving 30 years.
Another pa gyud if the penalty imposable
is divisible, the court has to state in the decision,
unsa ma na medium, maximum or minimum.
Unya asa man ang period sa penalty. Mu ingun
nya mu nga para ra ma na sa mag huwes ayaw
pag ingun ana kay inig pangutan-un ka sa bar
pangutan-un ka sa trabaho sa abogado, sa fiscal,
ug sa huwas.
Sec. 4. Judgment in case of variance
between allegation and proof. – When there
is variance between the offense charged in
the complaint or information and that
proved, and the offense as charged is
included in or necessarily includes the
offense proved, the accused shall be
convicted of the offense proved which is
included in the offense charged, or of the
offense charged which is included in the
offense proved.
We have discussed earlier that in order to
be convicted, the crime must be alleged in the
information or complaint and proved. Kaning
duha jud. Ang problema ani if the crime alleged
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is different from the crime proved. If there is
difference between the crime alleged and the
crime proved by what crime should the accused
be convicted? For example if the crime alleged is
rape, so the accused is charged with rape in the
information, suppose after trial the evidence of
the prosecution was only able to prove acts of
lasciviousness because there was no slightest
penetration or that the crime committed was only
attempted rape. By what crime should the
accused be convicted, crime alleged or crime
proved? Under the rules the accused shall be
convicted of the crime proved which is a lesser
offense necessarily included in (meaning some of
the elements are included in the crime charged).
So in that situation where the crime charged is
rape but the crime proved is acts of
lasciviousness the accused should be convicted
of the crime proved which is necessarily included
in the crime charged.
Now what about if vice versa, if the crime
alleged or the crime charged is acts of
lasciviousness but during the trial it was proven
that actually the crime committed by the
accused is rape. By what crime should the
accused be convicted? Accused shall be
convicted only of the crime ALLEGED the
elements of which is necessarily included in the
crime proved. Sa ato pa ang inyung timan-an
ana the accused shall be convicted whichever is
lesser. Provided that the elements of the lesser
offense are necessarily included in either of the
crime charged or the crime proved.
There is a problem the crime proved is
completely different from the crime charged. If
the elements of the crime proved is completely
different from the crime charged. For example
the charge is rape but the crime proved is
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consented abduction, you notice that it
consented abduction there is no force kay na
may consent whereas in rape there is force, there
is intimidation, so these two crimes are totally
different. By what crime should the accused be
convicted? The accused could not be convicted
of either crime. The court will direct the
prosecution to file the proper crime then after the
filing of the proper information the court will
dismiss the case.
Sec. 5. When an offense includes or is
included in another. – An offense charged
necessarily includes the offense proved
when some of the essential elements or
ingredients of the former, as alleged in the
complaint or information, constitute the
latter. And an offense charged is
necessarily included in the offense proved,
when the essential ingredients of the
former constitute or form part of those
constituting the latter.
Sec. 6. Promulgation of judgment. – The
judgment is promulgated by reading it in
the presence of the accused and any judge
of the court in which it was rendered.
However, if the conviction is for a light
offense, the judgment may be pronounced
in the presence of his counsel or
representative. When the judge is absent or
outside the province or city, the judgment
may be promulgated by the clerk of court.
If the accused is confined or detained in
another province or city, the judgment may
be promulgated by the executive judge of
the Regional Trial Court having jurisdiction
over the place of confinement or detention
upon request of the court which rendered
the judgment. The court promulgating the
judgment shall have authority to accept the
notice of appeal and to approve the bail
bond pending appeal; provided, that if the
decision of the trial court convicting the
accused changed the nature of the offense
from non-bailable to bailable, the
application for bail can only be filed and
resolved by the appellate court.
The proper clerk of court shall give notice
to the accused personally or through his
bondsman or warden and counsel, requiring
him to be present at the promulgation of
the decision. If the accused was tried in
absentia because he jumped bail or
escaped from prison, the notice to him shall
be served at his last known address.
In case the accused fails to appear at the
scheduled date of promulgation of
judgment despite notice, the promulgation
shall be made by recording the judgment in
the criminal docket and serving him a copy
thereof at his last known address or thru
his counsel.
If the judgment is for conviction and the
failure of the accused to appear was
without justifiable cause, he shall lose the
remedies available in these rules against
the judgment and the court shall order his
arrest. Within fifteen (15) days from
promulgation of judgment, however, the
accused may surrender and file a motion for
leave of court to avail of these remedies.
He shall state the reasons for his absence
at the scheduled promulgation and if he
proves that his absence was for a justifiable
cause, he shall be allowed to avail of said
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remedies within fifteen (15) days from
notice.
As what we have said in criminal cases
the judgment is promulgated by reading it in the
presence of the accused and by any judge of the
court in which it is rendered. Inyo nang
hinumduman jud nga in order for promulgation of
judgment to be valid ang required ra gyud nga
mu present ang judge ra gyud ug ang accused.
This has been asked in the bar. During
the promulgation of judgment the defense
counsel was absent. Is the promulgation valid?
YES. Because during promulgation of judgment
under the rules the presence of the defense
counsel is not required.
Another question, during the
promulgation of judgment the public prosecutor
was absent. Is the promulgation valid? YES.
Because during promulgation of decision in
criminal case only the presence of the accused
and of the judge is required. The presence of the
public prosecutor is not.
It is different when it is arraignment.
Because during arraignment the accused must
be assisted by a counsel unless the court allows
him to act as his own counsel. And also during
arraignment the public prosecutor must be
present unless the private prosecutor has been
duly authorized in writing by the head of the city
or provincial prosecutor to prosecute the case.
However, if the conviction is a light
offense, when the penalty is arresto menor or
fine not more than 200, in case of conviction of
the crime to which the accused is convicted is a
light offense the promulgation could be done in
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the presence of the counsel of the accused alone
or his representative. Pwede ra nga magpadala
siya ug representative didto. Pwede ra dunay
proxy. Pwede ra iyang asawa didto maoy
patungahun during promulgation of judgment.
When the judge is absent or outside the province
the judgment may be promulgated by the clerk
of court.
If the accused is confined or detained in
another province or city, the judgment may be
promulgated by the executive judge of the
Regional Trial Court having jurisdiction over the
place of confinement or detention upon request
of the court which rendered the judgment.
Pananglitan ang accused dunay kaso diri, unya
na detain siya didto sa Muntinlupa jud sa Bilibid
kay duna siyay laing crime nga na commit, na
convicto pud siya diri, unsaun ma na run? Pwede
ra ang decision diri ipadala sa RTC didto nga
dunay jurisdiction sa RTC Muntinlupa. Unya
hangyuon to didto and judge nga adto lang didto
e promulgate. Then the judge in the court
promulgating the judgment shall have authority
to accept the notice of appeal and to approve the
bail bond pending appeal.
However, if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed and resolved
by the appellate court. Pareho ra.
Whether the decision is acquittal or
conviction notice of the promulgation of
judgment is indispensable. It is required. So the
proper clerk of court shall give notice to the
accused personally or through his bondsman or
warden and counsel, requiring him to be present
at the promulgation of the decision. If the
accused was tried in absentia because he jumped
bail or escaped from prison, the notice to him
shall be served at his last known address. So
bisan pa ug eskapo siya entitled gihapun siya ug
notice of promulgation. Asa ma ni ipadala? Adto
sa iyang last known address. Natural ug wa siya
didto mao return ra pud na sa Court. Unya
nganu man nga padad-an pa nga RTS (return to
sender) ra man gihapon na? That is to comply
the requirements of due process.
In case the accused fails to appear at the
scheduled date of promulgation of judgment
despite notice, the promulgation shall be done, 2-
step, (1) by recording the judgment in the
criminal docket and (2) serving him a copy
thereof at his last known address or thru his
counsel. Kanang criminal docket mura nag log
book dako kay na siya, mao siya book of
judgment. Ibutang didto ang case number unya
wherefore. Mao na na siya. Mao na siyay mu
constitute nga judgment.
Remember that this step is very
important, so much so that if this is not followed
the promulgation of the decision will be void.
Unya unsa may mahitabu if the promulgation of
the decision will be void? Then the judgment
become final kay wa man siya ma promulgated.
Kay ang 15-day period sa finality sa decision mu
start man sa pag promulgation. So if there was
no proper promulgation then the 15-day period
will not apply.
If the judgment is for conviction (dunay
epekto ang iyahang wa pag tunga) and the
failure of the accused to appear was without
justifiable cause, he shall lose the remedies
available in these rules against the judgment and
the court shall order his arrest. Unsa man d i unta
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ang remedy sa accused sa decision? One of
these is you file a motion for reconsideration and
another is motion for new trial and another is
motion for reopening of trial because he wants to
present more evidence and of course another
remedy is appeal. These remedies will be lost if
the accused who is convicted will not appear and
his appearance is unjustifiable. Aside from losing
his rights under the rules against the decision,
the court shall order his arrest meaning if he is
the respondent the court will cancel the bail and
order for his arrest.
However , within fifteen (15) days from
promulgation of judgment, however, the accused
may surrender and file a motion for leave of court
to avail of these remedies. He shall state the
reasons for his absence at the scheduled
promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to
avail of said remedies within fifteen (15) days
from notice. If e deny gani sa Court ang iyang
motion, unya kay mi surrender na man siya
nagpasabot na nga priso na siya. Nganu ma
priso man siya? Kay diha na may warrant of
arrest nga gi issue ang Court.
By the way when the judgment is for
acquittal wa jud kay problema bisag di pa ka
mutunga. Nganu man? Kay bisan d ka mutunga
aw wan a may remedy ang prosecution. That is
the end of the road. So the decision can be
promulgated in absentia.
To summarize, what are the instances
wherein promulgation in absentia is allowed:
(1) when the judgment is for light offense
(2) when the accused was tried in
absentia (meaning he escaped or jumped bail)
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(3) when the accused failed to appear
despite due notice
(4) when the accused is acquitted
Mu ingun man ta ganina nga ang
promulgation sa decision sa trial court two-step.
(1) filing didto sa clerk of court of the decision of
the judge (2) the reading of the decision in open
court. By the way kanang reading of the decision
in open court ug imu gyud nang striktuhon kato
gyud intero decision gyud ang basahun so kung
taas kayo ang decision sa judge mu abot tog tag
100 pages unya kay d ma na pwede kay pila ma
na ka oras unya hinyun man gyud na ug basa
arun makasabot ang accused, ug magkasinabot
ang parties pwede ra nga kato rang dispositive
portion. Meaning e waive ang right sa parties
nga maminaw sa entire decision.
Didto sa appellate court wala na ang
reading in open court. Dili na na basahun.
Pareha ra na sa civil for example sa Court of
Appeals after the justices have heard and signed
the decision the same shall be filed with the clerk
of court unya ang clerk of court e send out na
ngadto sa mga parties. Mao na nay
promulgation. Wala nay reading in open court.
Sec. 7. Modification of judgment. – A
judgment of conviction may, upon motion of
the accused, be modified or set aside
before it becomes final or before appeal is
perfected. Except where the death penalty
is imposed, a judgment becomes final after
the lapse of the period for perfecting an
appeal, or when the sentence has been
partially or totally satisfied or served, or
when the accused has waived in writing his
right to appeal, or has applied for
probation.
Once the decision is promulgated the
same can only be modified upon motion of the
accused or motu proprio but with the consent of
the accused. Nganu man? Kay mu set in man
diha ang right of the accused against double
jeopardy. Di na man gud maka file ug motion for
reconsideration ang prosecution kay that may
result in double jeopardy imposing the higher
penalty upon the accused will constitute double
jeopardy. So dli maka file ug motion for
reconsideration ang prosecution.
A judgment of conviction may, upon
motion of the accused, be modified or set aside
before it becomes final or before appeal is
perfected. Note ACCUSED ra gyud ha. Sa ako
pang gisulti ma usab ra ang decision general rule
upon MOTION OF THE ACCUSED. Take note a
judgment of conviction sa ato pa kung acquittal
dli na gyud na mausab. The decision can be
modified before it becomes final or before a
notice of appeal is filed. As what we have
learned a decision becomes final after the lapse
of 15 days, there are however instances wherein
a decision will become final even before the lapse
of the 15 day period in the following
circumstances:
(1) When the sentence has been totally
or partially satisfied or served
(2) When the accused has waived in
writing his right to appeal (so before the
lapse of the 15-day period if the accused
files a written manifestation that he is
waiving his right to appeal then the
decision will become final)
(3) When has applied for probation (ato
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nang nahibaw-an nga once the accused
applies for probation the decision will
become final but not executor kay dili
man to e execute ang iyang sentence,
meaning he cannot anymore file appeal,
ug mu file siya ug appeal dili na pud siya
maka apply ug probation except katong
kaso ni Colinares nga convicted siya ug
serious offense more than 6 years unya
on appeal the penalty was reduced and
according to the Supreme Court he could
still apply for probation because it was
not his fault why he was not able to apply
for probation).
Now, bisag pa ang akusado mi apply for
probation, as regards the civil aspect pwede
gihapon siya maka file ug appeal.
Gipangutana ni sa bar. Explain what is
“mitimus”? Kanang mitimus that is equivalent to
a writ of execution in civil case. An order of the
court transferring the prisoner to Muntinlupa. Or
mitimus according to the decision of the Supreme
Court in PP vs. Mamatic, 105 Phil 479, mitimus is
similar to an execution after judgment in a civil
case, it is carrying into effect the judgment of the
Court. Kanang mitimus usbon nako sa simple
nga pagka explain mao na siyay order sa court
nga kanang akusado or na convicto na dad-un na
na didto sa Muntinlupa.
Sec. 8. Entry of judgment. – After a
judgment has become final, it shall be
entered in accordance with Rule 36.
Sec. 9. Existing provisions governing
suspension of sentence, probation and
parole not affected by this Rule. – Nothing
in this rule shall affect any existing
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
provisions in the laws governing
suspension of sentence, probation or
parole.
January 18, 2013 (56:45:00 – last)
People vs. Mamati, 105 Phil 479
“Mitimus” is similar to an execution after
judgment in a civil case. It is carrying into effect
the judgment of the court. Sa simple pag explain,
mao na siyay order sa court na kanang akusado
na na convicto na unya ang decision final and
executor, dalhon na siya didto sa Muntinlupa.
Isakay na katong Kaoshiung na dunay marka na
Muntinlupa.
Sec. 9. Existing provisions governing
suspension of sentence, probation and
parole not affected by this Rule. – Nothing
in this rule shall affect any existing
provisions in the laws governing
suspension of sentence, probation or
parole.
There are instances wherein the sentence
is suspended.
By the way, pag bantay mo anang under
Section 9 naay annotation si Regalado naay mga
decision diha na dili na applicable bahin sa
probation. Kaniadto bisan ug convicted ka ug
direct assault, which is a crime of public order
pwede ka maka file ug probation. Karon dili na.
Naay kaso diha na Santos vs. Panyo, dili nasad
na. Naay kaso diha na Atienza vs. CA kanang last
niya na explanation. Na convicto ug direct
assault, dili na pwede.
RULE 121
NEW TRIAL OR RECONSIDERATION
These are among the remedies that can
be availed of by the accused against the
judgment of conviction.
Section 1. New trial or reconsideration. – At
any time before a judgment of conviction
becomes final, the court may, on motion of
the accused or at its own instance but with
the consent of the accused, grant a new
trial or reconsideration.
When should the accused file Motion for
New Trial or Reconsideration?
At any time before a judgment of
conviction becomes final.
It is only the accused who can file a
motion for reconsideration or new trial.
And this is only available in case of
conviction. Because the prosecution cannot avail
of these remedies.
The court can also reconsider motu
proprio, but with the consent of the accused.
What is the remedy of the prosecution in
case of acquittal?
Generally, there is no remedy. That is the
end of the road of the prosecution basta
acquitted. Judgment of acquittal is immediately
executory. Executory means there is no need to
wait for the 15-day period before releasing the
accused.
For example, if nag promulgate ta karon
unya na acquitted ang accused, pwede nana mu
lakaw ang accused. Walay posas. Because
judgment is immediately executor. There is no
need to wait for the 15-day period. So mao to
ang mga tao, pag promulgate sa Supreme Court
na acquitted si Webb. Unya ni gawas dayon. Ni
ana dayon ang mga tao, awa ragud, basta dato
gawas dayon. Pobre pato.. aw, wa kasabot.
So what is the remedy of the prosecution
in case of acquittal? Kani kay available man gyud
ni siya at all times basta dunay grave abuse of
discretion. Unsa man? CERTIORARI. Mao ra
gyud na. So Certiorari under Rule 65 may be filed
to question a void decision.
People vs. Veneracion, October 12, 1995
This is during the incumbency of the death
penalty. A Judge in Manila rendered a decision
wherein the victim was a 7-year old child.
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Gipatay unya gi rape. Kaniadtong panahona
bisan ug dili pana nimo patyon ang victim unya
below 7 mandatory gyud na na bitay. But the
problem here is ang Judge na nakakupot sa kaso
kay Born Again. Matod pa niya sa iyang decision,
iya gi apply ang religion. Only God has the right
to take life. Instead of death, he imposed the
penalty of reclusion perpetua. The prosecution
filed a petition for certiorari against the decision
before the Supreme Court. Supreme court said:
Unsa man ka? E-impose ni nimo ang death
penalty na maoy gi sulti sa balaod? Or mu biya
ka sa imong pagka huwes. Aw iya nalang gi
impose uy. 
Sec. 2. Grounds for a new trial. – The
court shall grant a new trial on any of the
following grounds:
(a) That errors of law or
irregularities prejudicial to
the substantial rights of the
accused have been
committed during the trial;
(b) That new and material
evidence has been discovered
which the accused could not
with reasonable diligence
have discovered and
produced at the trial and
which if introduced and
admitted would probably
change the judgment.
What are the grounds for new trial?
Remember that the grounds for new trial
in criminal cases are different from the grounds
in civil cases, Rule 37. What are the grounds?
Among them are FAME, newly discovered cases.
Pero diri sa criminal cases, walay FAME diri.
Unsay naa?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
1. Errors of law or irregularities prejudicial
to the substantial rights of the accused
have been committed during the trial.
Meaning to say, there are substantial
rights of the accused that have been violated
during the trial.
Example, in one case where in the
accused was denied of his right to have a counsel
of his own choice. That is a denial of his
substantial right – The right to counsel. So the SC
granted a new trial.
Another case where there was an unfair
and partial trial because the Judge was so biased
against the accused. So the SC granted the
motion of the accused for a new trial.
Mu ingon gani ta New Trial, back to
square one. Go back ka sa first base:
Arraignment, Presentation of evidence. So there
shall be another reception of evidence.
2. New and material evidence has been
discovered which the accused could not
with reasonable diligence have discovered
and produced at the trial and which if
introduced and admitted would probable
change the judgment.
There are requisites for the newly
discovered evidence: (Take note: NEWLY
DISCOVERED EVIDENCE, not forgotten evidence)
1. This evidence which could not have
been discovered despite reasonable diligence.
2. This evidence is new and material
evidence.
3. If introduced would probable change
the judgment.
If new trial is granted based on newly
discovered evidence, the evidence already on
record will not be removed from the record, but
there would only be additional reception of
evidence.
Sec. 3. Ground for reconsideration. – The
court shall grant reconsideration on the
ground of errors of law or fact in the
judgment, which requires no further
proceedings.
Kaning reconsideration dili ni siya kuti
kaysa new trial. Kay sa new trial naa man gyuy
reception of evidence.
Unsay buhaton anang reconsideration?
Imong e-argue ngano sayop ang findings sa court
sa facts ug ngano sayop iyang conclusion of law.
Findings of facts – refers to questions of
facts.
Questions of facts – means whether or
not kaning witness namakak or wala.
Questions of law – kung unsay balaod na
e-apply. Example, unsa gyud ang e-apply
na law. Rule 43 or kanang certiorari. That
is a question of law.
Kung mao rana imong e-argue, you are
not asking for another reception of evidence, or
newly discovered evidence, then your remedy is
Motion for Reconsideration. You try to convince
the court na nasayop siya. Pero gamay ra kaayo
imong chance ana. Most likely ang court saw a pa
siya ni come up ana na decision iya gyud na gi
tarong ug timbang ug consider tanan. Pero duna
gihapon kay chance, slim kaayo.
Sec. 4. Form of motion and notice to the
prosecutor. – The motion for new trial or
reconsideration shall be in writing and shall
state the grounds on which it is based. If
based on a newly-discovered evidence, the
motion must be supported by affidavits of
witnesses by whom such evidence is
expected to be given or by duly
authenticated copies of documents which
are proposed to be introduced in evidence.
Notice of the motion for new trial or
reconsideration shall be given to the
prosecutor.
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If you file for motion for reconsideration,
mag andam ka sa imong arguments. You should
be respectful in your words. Ang uban abogado
nag pray sa Wherefore, pero nag demand diay.
Unya disrespectful pa kaayo ug mga words. Adto
paka SC ana gi contempt naka.
“The motion for new trial or
reconsideration shall be in writing.” So you
observe the requirements for a litigious motion. It
must be set for hearing, must contain notice of
hearing, observe the 3-day notice rule, and it
must be in writing, and shall state the ground on
which it is based.
Ka hinumdom mo atong Affidavit of
Merits? Mao na siya. Kung duna kay newly
discovered evidence, this could be a vital
witness. He could be an eyewitness unya wala
nimo na present during the trial. And because he
is an eyewitness, his testimony may change the
decision or the outcome of the decision. The
testimony of the witness could be considered as
newly discovered evidence.
Sec. 5. Hearing on motion. – Where a
motion for new trial calls for resolution of
any question of fact, the court may hear
evidence thereon by affidavits or otherwise.
Sec. 6. Effects of granting a new trial or
reconsideration. – The effects of granting a
new trial or reconsideration are the
following:
(a) When a new trial is
granted on the ground of
errors of law or irregularities
committed during the trial,
all the proceedings and
evidence affected thereby
shall be set aside and taken
anew. The court may, in the
interest of justice, allow the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
introduction of additional
evidence.
(b) When a new trial is
granted on the ground of
newly-discovered evidence,
the evidence already adduced
shall stand and the newly-
discovered and such other
evidence as the court may, in
the interest of justice, allow
to be introduced shall be
taken and considered
together with the evidence
already in the record.
(c) In all cases, when the
court grants new trial or
reconsideration, the original
judgment shall be set aside
or vacated and a new
judgment rendered
accordingly.
Pananglitan ang witness. Pagka human sa
decision, ang eyewitness sa prosecution ni
execute ug Affidavit of Desistance. Can it be a
ground for motion for new trial? Newly
discovered evidence?
Affidavit of Desistance, Affidavit
Recantation are frown upon by the courts.
Because according to the Supreme Court that
can easily be obtained, especially for financial
consideration.
General Rule: Recantation of prosecution
witnesses cannot be a ground for new trial.
Affidavits of retraction can easily be secured from
poor and ignorant witnesses, usually for
monetary consideration.
Exception: People vs. Famor?? Clamor??,
July 1, 1991
HOWEVER, there is one case wherein the
Supreme Court allowed new trial. When aside
from the testimony of the retracting witness,
there is no other evidence to support the
conviction of the accused, a new trial may be
granted.
Sa ato pa, gawas atong witnesses na nag
retract, wan a gyuy lain na mga ebidensya na mu
support sa judgment of conviction, a new trial
may be granted. Imaginon nimo na gi kiha ka ug
rape, unya ang victim ni execute ug affidavit of
desistance or recantation.
Difference between Affidavit of Desistance
ug Affidavit of Recantation
Desistance – meaning dili naka ganahan mu
proceed sa kaso.
Recantation – balihon nimo imong gi sulti
People vs. Garcia, 288 SCRA 382
To warrant a new trial, the affidavit of desistance
must constitute a recantation and not a mere
withdrawal from the prosecution.
***
So those are motions for new trial or
reconsideration.
Let’s now go to appeal. Ang appeal sa
criminal cases naa sa Rules 122, 123, 124, 125.
Pero it does not mean that Rule 40 – 45 dili na
applicable. Because under the Rules, Rules 40 –
42, 45 are also applicable.
RULE 122
APPEAL
Can the Prosecution appeal?
Although generally, the prosecution
cannot appeal, and only the accused can file the
appeal.
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There are instances when the prosecution
can file an appeal, because under Section 1 it
says,
Section 1. Who may appeal. – Any party
may appeal from a judgment or final order,
unless the accused will be placed in double
jeopardy.
So the prosecution can file appeal if the
accused will not be place in double jeopardy.
So in what cases that the accused will not
be placed in double jeopardy? Tanawn dayon
nimo ang requisites sa Double Jeopardy. (1) that
there is a valid information, (2) the accused has
been arraigned, unsa pa? timan-e niya tao.
Sec. 2. Where to appeal. – The appeal may
be taken as follows:
(a) To the Regional Trial
Court, in cases decided by
the Metropolitan Trial Court,
Municipal Trial Court in Cities,
Municipal Trial Court, or
Municipal Circuit Trial Court;
(b) To the Court of Appeals or
to the Supreme Court in the
proper cases provided by law,
in cases decided by the
Regional Trial Court; and
(c) To the Supreme Court, in
cases decided by the Court of
Appeals.
How appeal should be taken?
First level court to RTC
How are you going to perfect an appeal?
It should be by filing a notice of appeal with
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the trial court. The copy of the notice of appeal
shall be furnished to the other party.
RTC to Court of Appeals / Sandiganbayan
There are instances when from the RTC,
the appeal shall be brought to the
Sandiganbayan. In cases involving public officers
where the crimes committed are in relation to the
performance of their duties.
From RTC to Court of Appeals or
Sandiganbayan?
It depends. If the trial court has
rendered a decision or final order in the exercise
of its original jurisdiction, it should be by filing
notice of appeal. Pareha ra sa Rule 41.
If the RTC renders the decision or final
order in the exercise of its appellate jurisdiction,
then the decision shall be brought to the CA or
Sandiganbayan through Petition for review.
Kaning mu adto sa Sandiganbayan, these are
public officers or even private persons in
conspiracy with public officers who committed
crimes in connection to their performance of their
functions.
Court of Appeals to Supreme Court
It should only be through Rule 45,
Petition for Review on Certiorari.
Except if the penalty imposed by the
Court of Appeals is Reclusion Perpetua or Life
Sentence. In which case, the case shall be
elevated to the SC by mere notice of appeal,
pursuant to the ruling of the SC in People vs.
Mateo.
Sandiganbayan to Supreme Court
Decisions of the Sandiganbayan, either in
the exercise of its original jurisdiction or
appellate jurisdiction shall be brought to the
Supreme Court through Petition for Review on
Certiorari.
Except when the penalty imposed by the
Sandiganbayan is Reclusion Perpetua or Life
Sentence, because the same can be brought to
the SC by mere filing of a notice of appeal in
the Sandiganbayan.
Kanang mga public officers whose cases
are cognizable by the Sandiganbayan, luoy
kaayo. Kay gikan sa Sandiganbayan, diretso sa
Supreme Court. When you go to SC, only
questions of law. Gawas lang atong Reclusion
Perpetua ug Life Sentence. Sa ato pa if you are a
public officer and you are convicted of a crime
with a penalty imposed which is lesser than RP or
Life Sentence, the findings of fact of the
Sandiganbayan would be final. Why is it final?
Because if you are going to bring the case to the
SC, it would be through a petition for review on
certiorari, and what you can raise are pure
questions of law. Although dunay exceptions.
Hinumdomi gyud tong mga exceptions butangi
ug star!  Katong Rule 45, instances na ang SC
although pure questions of law, pero ang SC mu
review sa facts. Unsa to reason ngano dili mu
touch ang SC sa findings of fact sa court?
Because it is trial court that is in the best position
to observe the demeanor of the witnesses.
Hinumdumi ang jurisdiction sa
Sandiganbayan. Imong hinumduman na Salary
Grade 27, but remember!!!!!! Dili lang Salary
Grade 27. There are also those public officers
expressly provided by law creating
Sandiganbayan even if they are below Salary
Grade 27 or they are occupying positions below
Salary Grade 27 wherein Sandiganbayan has
jurisdiction over their cases.
Aside from the position, look at the
crime. The crime must be committed in relation
totheir functions. Gawas sa anti-graft ug RA 1379
(Forfeiture proceedings sa mga ill-gotten wealth).
Take note also of the position of the accused. Sa
RA 1379, duna raba to catch-all provision didto,
Page | 347

“all other offenses committed in relation to the
performance of their functions.
Kanus-a ka mga ingon na ang crime kay
committed in relation to the performance of
their functions?
1. Public office is an element of that crime.
Hinumudom mo sa malversation? It is
required that the accused must a public officer,
and an accountable officer.
2. Even if public office is not an element ,
but the crime is committed by the public
officer while he was performing his
functions, although he performed it
irregularly.
Pananglitan police ka, nag conduct ka ug
checkpoint. Unya naay coming, imong gipang
pusil. Did you perform your duties? Yes,
irregularly. Did you commit the crime in relation
to the performance of your function? Yes! Is
public office one of the elements of murder? No,
but even if public office is not an element in the
crime of murder, Sandiganbayan has jurisdiction
because you committed the crime while
performing your functions.
Hinumdumi pud ninyo ang ruling sa
People vs. Lacson.. basta Lacson case to.
Wherein the Supreme Court said that the
information must allege facts, dili lang conclusion
of law, showing the connection of the crime to
the performance of duties of the public officer
concerned.
Naa gani jurisdiction ang Sandiganbayan
sa position sa accused, and the crime is
committed in relation to the performance of the
accused, you DISREGARD the penalty because
Sandiganbayan has jurisdiction. So regardless of
the penalty imposable.
Remember 2 points:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
1. Position of the accused
2. Nature of the crime committed.
Whether the crime is committed in
relation to the performance of the
function of the public officer.
When a criminal case is tried before the
trial court, it is the public prosecutor who will
prosecute the case. but once the criminal case is
appealed, the appeal shall not be handled by the
prosecutor’s office but by the Office of the
Solicitor General.
Once the accused will appeal the criminal
case, the appellate court can review the whole
case including those errors not assigned by the
accused. Diba sa civil case, kung mu appeal ka,
there must be Assignment of Errors, meaning you
point the particular portions of the decision which
you consider as erroneous and you argue why is
it erroneous. Unya errors not assigned shall not
be considered. Although naa pud na mga
exceptions. Lahi sa criminal cases!!! In criminal
cases, once the accused will appeal the case the
entire case is subject to review and the appellate
court can review the entire case even those
which are not assigned by the accused as errors.
Aspects that can be reviewed by the court:
1. Review of the penalty imposed.
2. Indemnity or damages involved.
Example, the accused is charged
with Murder. He was convicted of
Homicide. Pabor man niya diba. But he is
not contented because he wants
acquittal. So the accused filed an appeal.
On appeal, the Court of Appeals can
affirm the conviction and can change the
nature of the crime to which the accused
is convicted from Homicide to Murder.
So remember the entire case is subject to
review. For example, convicted. Pero wala siya na
content sa conviction. Appeal siya. Diri sa trial
court, gipa bayad ra ug 50,000. Pag abot sa
Court of Appeals, affirmed ang conviction and
amount of damages is raised to 1 million because
the trial court did not include the loss of earning
capacity of the victim. Pwede bana? Yes, because
the whole case is subject to review, not only
those errors assigned or pointed by the accused.
In what instances that the prosecution can
file an appeal?
The prosecution can file appeal when the
accused will not be placed in double jeopardy.
1. When the prosecution appeals the
civil aspect of the judgment or order.
2. When the dismissal is made upon
motion of the accused or with his consent.
3. When the dismissal is not
acquittal on the merits.
4. When the appeal is merely on
pure question of law.
Galman vs. Sandiganbayan, 144 SCRA 43
When the
trial is a sham or
when the trial
court acted with
grave abuse of
discretion, such
as when the
prosecution is
denied of
opportunity to
present its case,
there is no double
jeopardy.
When the prosecution files an appeal, it
is only the public prosecutor who can file an
appeal, not the private prosecutor. Because the
prosecution of the case is always under the
direction and control of the public prosecutor.
Suppose the private prosecutor has been
authorized in writing to prosecute the case,
in the absence of the public prosecutor?
Page | 348

Can the private prosecutor by himself,
without the conformity of the public
prosecutor file the appeal?
NO. The written authority given to the
private prosecutor is only up to trial. After the
trial, the private prosecutor has no more
authority.
Ka remember mo sa subsidiary civil
liability of the employer? When the employee
commits a crime while performing his duties, and
the employer is engaged in a business, the
employer is subsidiarily liable in case of
insolvency of the accused, the employer is civilly
liable. For example the accused does not
want to appeal, can the employer file the
appeal?
NO, it is only the accused who can file an
appeal.
Sec. 3. How appeal taken. – (a) The appeal
to the Regional Trial Court, or to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction, shall be taken by filing a notice
of appeal with the court which rendered the
judgment or final order appealed from and
by serving a copy thereof upon the adverse
party.
(b) The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction
shall be by petition for review under Rule
42.
(c) The appeal to the Supreme Court in
cases where the penalty imposed by the
Regional Trial Court is reclusion perpetua,
or life imprisonment, or where a lesser
penalty is imposed but for offenses
committed on the same occasion or which
arose out of the same occurrence that gave
rise to the more serious offense for which
the penalty of death, reclusion perpetua, or
life imprisonment is imposed, shall be by
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
filing a notice of appeal in accordance with
paragraph (a) of this section.
(d) No notice of appeal is necessary in
cases where the death penalty is imposed
by the Regional Trial Court. The same shall
be automatically reviewed by the Supreme
Court as provided in section 10 of this Rule.
Except as provided in the last paragraph
of section 13, Rule 124, all other appeals to
the Supreme Court shall be by petition for
review on certiorari under Rule 45.
Sec. 4. Service of notice of appeal. – If
personal service of the copy of the notice of
appeal can not be made upon the adverse
party or his counsel, service may be done
by registered mail or by substituted service
pursuant to sections 7 and 8 of Rule 13.
Sec. 5. Waiver of notice. – The appellee
may waive his right to a notice that an
appeal has been taken. The appellate court
may, in its discretion, entertain an appeal
notwithstanding failure to give such notice
if the interests of justice so require.
Sec. 6. When appeal to be taken. – An
appeal must be taken within fifteen (15)
days from promulgation of the judgment or
from notice of the final order appealed
from. This period for perfecting an appeal
shall be suspended from the time a motion
for new trial or reconsideration is filed until
notice of the order overruling the motion
has been served upon the accused or his
counsel at which time the balance of the
period begins to run.
An appeal must be taken within 15
days… take note of the case Neypes vs. Neypes.
In the case of Yu vs. People, February 9, 2011,
the ruling in Neypes vs. Neypes the so-called
fresh period rule is applicable also to criminal
cases. So kaning Section 6, Rule 122 duna nay
kausaban. Dili interrupted or remaining, kungdi
duna nay fresh period rule.
Sec. 7. Transcribing and filing notes of
stenographic reporter upon appeal. – When
notice of appeals is filed by the accused,
the trial court shall direct the stenographic
reporter to transcribe his notes of the
proceedings. When filed by the People of
the Philippines, the trial court shall direct
the stenographic reporter to transcribe
such portion of his notes of the proceedings
as the court, upon motion, shall specify in
writing. The stenographic reporter shall
certify to the correctness of the notes and
the transcript thereof, which shall consist
of the original and four copies, and shall file
said original and four copies with the clerk
without unnecessary delay.
If death penalty is imposed, the
stenographic reporter shall, within thirty
(30) days from promulgation of the
sentence, file with the clerk the original
and four copies of the duly certified
transcript of his notes of the proceedings.
No extension of time for filing of said
transcript of stenographic notes shall be
granted except by the Supreme Court and
only upon justifiable grounds.
Sec. 8. Transmission of papers to
appellate court upon appeal. – Within five
(5) days from the filing of the notice of
appeal, the clerk of court with whom the
notice of appeal was filed must transmit to
the clerk of court of the appellate court the
complete record of the case, together with
said notice. The original and three copies of
the transcript of stenographic notes,
together with the records, shall also be
transmitted to the clerk of the appellate
court without undue delay. The other copy
of the transcript shall remain in the lower
court.
Page | 349

Sec. 9. Appeal to the Regional Trial
Courts. – (a) Within five (5) days from
perfection of the appeal, the clerk of court
shall transmit the original record to the
appropriate Regional Trial Court.
(b) Upon receipt of the complete record of
the case, transcripts and exhibits, the clerk
of court of the Regional Trial Court shall
notify the parties of such fact.
(c) Within fifteen (15) days from receipt
of said notice, the parties may submit
memoranda or briefs, or may be required
by the Regional Trial Court to do so. After
the submission of such memoranda or
briefs, or upon the expiration of the period
to file the same, the Regional Trial Court
shall decide the case on the basis of the
entire record of the case and of such
memoranda or briefs as may have been
filed.
Sec. 10. Transmission of records in case
of death penalty. – In all cases where the
death penalty is imposed by the trial court,
the records shall be forwarded to the
Supreme Court for automatic review and
judgment within five (5) days after the
fifteenth (15) day following the
promulgation of the judgment or notice of
denial of a motion for new trial or
reconsideration. The transcript shall also be
forwarded within ten (10) days after the
filing thereof by the stenographic reporter.
Sec. 11. Effect of appeal by any of several
accused. – (a) An appeal taken by one or
more of several accused shall not affect
those who did not appeal, except insofar as
the judgment of the appellate court is
favorable and applicable to the latter.
(b) The appeal of the offended party from
the civil aspect shall not affect the criminal
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
aspect of the judgment or order appealed
from.
(c) Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party.
When there are several accused and
some of the accused appealed but others did not.
Example: X and Y charged with murder. X
filed an appeal, Y did not. Y chose to serve his
sentence. However on appeal, the appellate
court reversed the decision and acquitted X.
What effect has the decision of the
appellate court to the non-appealing
accused?
Section 11, the decision of the appellate
court if favorable and applicable to the non-
appealing accused, the decision of the appellate
court shall benefit the accused who did not file
an appeal.
Example: X and Y convicted of murder. X
filed an appeal, Y did not. On appeal, the
appellate court dismissed the case on the ground
that the prosecution failed to establish that the
victim was murdered because the findings of the
CA is that the victim committed suicide and so
the case was dismissed. Shall that decision
affect Y who did not file an appeal?
YES, because the decision is favorable
and applicable to the accused who did not file
an appeal.
Suppose on appeal the court acquitted X
on the ground that when the crime was
committed X was still a minor below 15 years.
Will the decision of the appellate court
apply to the accused who did not appeal?
NO, because although favorable it is not
applicable to him because the dismissal was
solely due to the minority of the accused who
filed an appeal.
***
When the appeal is perfected, the
execution of the judgment or final order shall be
stayed as regards the appealing party.
For example, the accused filed an appeal
before the lapse of the 15-day period example on
the 7th day. On the next day, he decided to
withdraw the appeal because he wanted to
file a motion for reconsideration first. Can
that be done?
NO. Once the appeal is perfected the
court loses jurisdiction over the case. The only
effect of the withdrawal is for the accused to
serve his sentence.
Now, if reverse, that would be different.
Example, the accused filed a motion for
reconsideration but he withdraw the MR in order
to file an appeal. Now, he can be allowed to file
an appeal.
(People vs. dela Cruz, 207 SCRA 623)
Sec. 12. Withdrawal of appeal. -
Notwithstanding perfection of the appeal,
the Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit
Trial Court, as the case may be, may allow
the appellant to withdraw his appeal before
the record has been forwarded by the clerk
of court to the proper appellate court as
provided in section 8, in which case, the
judgment shall become final. The Regional
Trial Court may also, in its discretion, allow
the appellant from the judgment of a
Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court to withdraw his
appeal, provided a motion to that effect is
filed before rendition of the judgment in
the case on appeal, in which case the
Page | 350

judgment of the court of origin shall
become final and the case shall be
remanded to the latter court for execution
of the judgment.
The appeal can be withdrawn but the
purpose is to serve the sentence. Or to avail of
amnesty.
Sec. 13. Appointment of counsel de officio
for accused on appeal. - It shall be the duty
of the clerk of court of the trial court, upon
filing of a notice of appeal to ascertain from
the appellant, if confined in prison, whether
he desires the Regional Trial Court, Court of
Appeals or the Supreme Court to appoint a
counsel de officio to defend him and to
transmit with the record on a form to be
prepared by the clerk of court of the
appellate court, a certificate of compliance
with this duty and of the response of the
appellate to his inquiry.
RULE 123
PROCEDURE IN THE MUNICIPAL TRIAL
COURTS
Section 1. Uniform Procedure. – The
procedure to be observed in the
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts
shall be the same as in the Regional Trial
Courts, except where a particular provision
applies only to either of said courts and in
criminal cases governed by the Revised
Rule on Summary Procedure.
Ato nani gi discuss. So uniform, except
Summary Procedure.
RULE 124
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
PROCEDURE IN THE COURT OF APPEALS
Section 1. Title of the case. – In all criminal
cases appealed to the Court of Appeals, the
party appealing the case shall be called the
"appellant" and the adverse party the
"appellee," but the title of the case shall
remain as it was in the court of origin.
Basta just remember Rule 40 – 45,
applicable gihapon to.
Sec. 2. Appointment of counsel de officio
for the accused. – If it appears from the
record of the case as transmitted that (a)
the accused is confined in prison, (b) is
without counsel de parte on appeal, or (c)
has signed the notice of appeal himself, ask
the clerk of court of the Court of Appeals
shall designate a counsel de officio.
An appellant who is not confined in prison
may, upon request, be assigned a counsel
de officio within ten (10) days from receipt
of the notice to file brief and he establishes
his right thereto.
Sec. 3. When brief for appellant to be
filed. – Within thirty (30) days from receipt
by the appellant or his counsel of the notice
from the clerk of court of the Court of
Appeals that the evidence, oral and
documentary, is already attached to the
record, the appellant shall file seven (7)
copies of his brief with the clerk of court
which shall be accompanied by proof of
service of two (2) copies thereof upon the
appellee.
Sec. 4. When brief for appellee to be
filed; reply brief of the appellant. – Within
thirty (30) days from receipt of the brief of
the appellant, the appellee shall file seven
(7) copies of the brief of the appellee with
the clerk of court which shall be
accompanied by proof of service of two (2)
copies thereof upon the appellant.
Within twenty (20) days from receipt of
the brief of the appellee, the appellant may
file a reply brief traversing matters raised
in the former but not covered in the brief of
the appellant.
Sec. 5. Extension of time for filing briefs.
– Extension of time for the filing of briefs
will not be allowed except for good and
sufficient cause and only if the motion for
extension is filed before the expiration of
the time sought to be extended.
Sec. 6. Form of briefs. – Briefs shall either
be printed, encoded or typewritten in
double space on legal size good quality
unglazed paper, 330 mm. in length by 216
mm. in width.
Sec. 7. Contents of brief. – The briefs in
criminal cases shall have the same contents
as provided in sections 13 and 14 of Rule
44. A certified true copy of the decision or
final order appealed from shall be
appended to the brief of the appellant.
Sec. 8. Dismissal of appeal for
abandonment or failure to prosecute. – The
Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to
the appellant in either case, dismiss the
appeal if the appellant fails to file his brief
within the time prescribed by this Rule,
except where the appellant is represented
by a counsel de officio.
The Court of Appeals may also, upon
motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes
from prison or confinement, jumps bail or
flees to a foreign country during the
pendency of the appeal.
Page | 351

“except where the appellant is
represented by a counsel de oficio”. Ngano man
na kung counsel de oficio ang mu represent dili
man e-dismiss dayon kung dili cya maka file ug
brief? Because the court will have to determine
first what is the reason why the counsel de oficio
fails to file his brief.
There are also instances when the Court
of Appeals may upon motion of appellee or
motu proprio dismiss the appeal:
1. (First paragraph) When the accused fails to
file his brief.
2. (Second paragraph) Appellant escapes from
prison or confinement
3. (Second paragraph) Appellant jumps bail or
flees to a foreign country during the
pendency of appeal.
So appeal ni siya ha? This is an appeal,
not a special civil action for certiorari. This is an
appeal.
Sec. 9. Prompt disposition of appeals. –
Appeals of accused who are under
detention shall be given precedence in their
disposition over other appeals. The Court of
Appeals shall hear and decide the appeal at
the earliest practicable time with due
regard to the rights of the parties. The
accused need not be present in court
during the hearing of the appeal.
Sec. 10. Judgment not to be reversed or
modified except for substantial error. – No
judgment shall be reversed or modified
unless the Court of Appeals, after an
examination of the record and of the
evidence adduced by the parties, is of the
opinion that terror was committed which
injuriously affected the substantial rights of
the appellant.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Sec. 11. Scope of judgment. – The Court of
Appeals may reverse, affirm or modify the
judgment and increase or reduce the
penalty imposed by the trial court, remand
the case to the Regional Trial Court for new
trial or retrial, or dismiss the case.
Sec. 12. Power to receive evidence. – The
Court of Appeals shall have the power to try
cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised in
cases (a) falling within its original
jurisdiction, (b) involving claims for
damages arising from provisional remedies,
or (c) where the court grants a new trial
based only on the ground of newly-
discovered evidence.
Sec. 13. Quorum of the court;
certification or appeal of cases to Supreme
Court. – Three (3) Justices of the Court of
Appeals shall constitute a quorum for the
sessions of a division. The unanimous vote
of the three (3) Justices of a division shall
be necessary for the pronouncement of a
judgment or final resolution, which shall be
reached in consultation before the writing
of the opinion by a member of the division.
In the event that the three (3) Justices can
not reach a unanimous vote, the Presiding
Justice shall direct the raffle committee of
the Court to designate two (2) additional
Justices to sit temporarily with them,
forming a special division of five (5)
members and the concurrence of a majority
of such division shall be necessary for the
pronouncement of a judgment or final
resolution. The designation of such
additional Justices shall be made strictly by
raffle and rotation among all other Justices
of the Court of Appeals.
Whenever the Court of Appeals find that
the penalty of death, reclusion perpetua, or
life imprisonment should be imposed in a
case, the court, after discussion of the
evidence and the law involved, shall render
judgment imposing the penalty of death,
reclusion perpetua, or life imprisonment as
the circumstance warrant. However, it shall
refrain from entering the judgment and
forthwith certify the case and elevate the
entire record thereof to the Supreme Court
for review.
Look at the last paragraph of Section 13,
kanang letter c, mao ni siya in cases when the
Court of Appeals imposes Reclusion Perpetua,
Life Imprisonment, or lesser offense or penalty,
unya mu appeal didto sa Supreme Court, unsa
imong buhaton? Notice of appeal. Basin mag tuo
mo na ako2x rato. Naa diha sa letter c. That is
pursuant to the case of People vs. Mateo.
In your book of Regalado, naa diha ang
RA 9346, the law abolishing the death penalty. In
RA 9346, death penalty was abolished and in lieu
thereof, either Reclusion Perpetua or Life
Sentence ang gi ilis. If the law to which the
accused is convicted uses the term of the
Revised Penal Code, then Reclusion Perpetua.
And Life Imprisonment if the law violated does
not make use of the terms in the Revised Penal
Code.
Sec. 14. Motion for new trial. – At any time
after the appeal from the lower court has
been perfected and before the judgment of
the Court of Appeals convicting the
appellant becomes final, the latter may
move for a new trial on the ground of
newly-discovered evidence material to his
defense. The motion shall conform with the
provisions of section 4, Rule 121.
Sec. 15. Where new trial conducted. –
When a new trial is granted, the Court of
Appeals may conduct the hearing and
receive evidence as provided in section 12
of this Rule or refer the trial to the court of
origin.
Sec. 16. Reconsideration. – A motion for
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 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

reconsideration shall be filed within fifteen Sec. 3. Decision if opinion is equally Section 1.Search warrant defined. — A
(15) days from notice of the decision or divided. – When the Supreme Court en banc search warrant is an order in writing issued
final order of the Court of Appeals with is equally divided in opinion or the in the name of the People of the
copies thereof served upon the adverse necessary majority cannot be had on Philippines, signed by a judge and directed
party, setting forth the grounds in support whether to acquit the appellant, the case to a peace officer, commanding him to
thereof. The mittimus shall be stayed shall again be deliberated upon and if no search for personal property described
during the pendency of the motion for decision is reached after re-deliberation, therein and bring it before the court.
reconsideration. No party shall be allowed a the judgment of conviction of lower court
second motion for reconsideration of a shall be reversed and the accused Bring it before the court!
judgment or final order. acquitted. What is the difference between a Search Warrant
Sec. 17. Judgment transmitted and filed (SW) and Warrant of Arrest (WA).
in trial court. – When the entry of judgment
of the Court of Appeals is issued, a certified In what court are you going to apply for SW?
true copy of the judgment shall be attached Incomplete:
to the original record which shall be 1. January 25, 2013, 4th part
remanded to the clerk of the court from Section 2.Court where application for
2. January 27, 2013, 7th part search warrant shall be filed. — An
which the appeal was taken. 3. January 28, 2013, 7th part application for search warrant shall be filed
4. January 28, 2013, last part with the following:
Sec. 18. Application of certain rules in civil 5. February 1, 2013, 1st part
procedure to criminal cases. – The 6. February 3, 2013, 3rd part
provisions of Rules 42, 44 to 46 and 48 to 7. February 3, 2013, last part a) Any court within whose territorial
56 relating to procedure in the Court of 8. February 4, 2013, 1st part jurisdiction a crime was committed.
Appeals and in the Supreme Court in 9. February 4, 2013, last part
original and appealed civil cases shall be b) For compelling reasons stated in
applied to criminal cases insofar as they are January 21, 2013 the application, any court within the
applicable and not inconsistent with the Rule 126 judicial region where the crime was
provision of this Rule. Search warrant- committed if the place of the
commission of the crime is known, or
any court within the judicial region
Search Warrant (SW) Warrant of Arrest (WA) where the warrant shall be enforced.
RULE 125
PROCEDURE IN THE SUPREME COURT
SW is for the taking of Taking of the person However, if the criminal action has already
Wala nani cya. personal property into into custody for the been filed, the application shall only be
custody court to acquire made in the court where the criminal action
jurisdiction and to is pending.
answer for the crime
Section 1. Uniform Procedure. – Unless
charged.
otherwise provided by the Constitution or UNDER Sec 2 when a criminal case has already
Issuance of such Judge Issuance of such Judge
by law, the procedure in the Supreme Court been filed the application for issuance of SW
must conduct a is not required to
in original and in appealed cases shall be should be filed in that court where the case is
personal examination conduct personal
the same as in the Court of Appeals. pending. If there is no criminal case is filed yet
on his applicant or examination on the then the application should be filed in the ff:
witnesses witnesses of the
Sec. 2. Review of decisions of the Court of  In any court who has jurisdiction where
prosecution. Judge may
Appeals. – The procedure for the review by the crime is committed. Didtonimunaxa i-
just rely on the
the Supreme Court of decisions in criminal file. Territorial J any court kanang under
resolution of the
cases rendered by the Court of Appeals
prosecutor and his BP 129 naanasyay specific territory, each
shall be the same as in civil cases.
supporting evidence. court jud. That’s called territorial
What is emphasized is
the personal Page | 353
responsibility of the
Judge in the issuance of
the WA.

jurisdiction or territorial boundary. For
example, mgakortesaMandaueangiyang
territorial jurisdiction didtorasaMandaue.
Dirisa CC mga RTC dakoug territorial
jurisdiction, in Naga and Carcarapil pa
nasa Cebu.
 For compelling reasons, it can be filed in
any court within judicial region where the
crime is committed. Angatong Judicial
Region is similar with Political Region,
kanang Region 7 is a political region,
which is followed by our Judicial Region,
7NTH JUDICIAL REGION. For example, a
crime is committed no crime has yet filed
here in Cebu you can file SW here in
Cebu bec that is the court that has
territorial Jurisdiction over the crime.
Imungsilingannagkupotugpusil, asa man
ifileang application sa issuance sa search
warrant, are Cebu City. Take note of the
word “any”, it cud be in the MTC or RTC.
Althoughnaasilayinternal arrangement
wherein crimes cognizable by RTC, ex
Drugs didtopudmo file sa RTC. ACTUALLY
the Rules provide for any court so sa any
court pwedena.
What is that compelling reason? Dirisa
Cebu na commit ang crime but didtoka
mi file ug SW saTagbilara, Bohol
pwedeba?
Yes pwede but in the application there
must be compelling reason, meaning
valid reason. For ex, the place to be
searched is owned by a very influential
person in the sense that naasiyay contact
sa court unyanahadlokang police nga
basin ma failure ilang search. Valid but
there must be compelling reason. That
court must be within the judicial region
where the crime is committed. RTC
saOslob, Danao, Carcar, Toledo or
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Bogobec these courts are w/n the judicial
region provided that there is a compelling
reason and the compelling reason must
be provided in the application for SW.
UNDER a and B of Sec 2 there is no case
filed yet. Now the application for the
issuance of SW is filed ex parte, di
nmupahibaw on ang other party.
Then Sec 3,
Section 3.Personal property to be seized. —
A search warrant may be issued for the
search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other
proceeds, or fruits of the offense; or
(c) Used or intended to be used as
the means of committing an offense.
Ex viol of Anti Drugs Act, the shabu is the subject
of the offense, embezzled or stolen. Used for ex
murder, somebody is killed and the murder
weapon is kept in that house. The police should
get a SW, dilipwedemodiretsoraclagadtodidtO
ESP if not considered as in hot pursuit. Connect it
with what u have learned in Crim Law, Viol of
Domicile under RPC so if public officer without
any warrant enters a residence in order to search
he can be liable for viol of domicile if he is a
private perso he can be liable for trespass to
dwelling.
Sec 4 is the requisite for the issuance of SW.
Section 4.Requisites for issuing search
warrant. — A search warrant shall not issue
except upon probable cause in connection
with one specific offense to be determined
personally by the judge after examination
under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the things to be
seized which may be anywhere in the
Philippines.
It must have a probable cause in connection with
one specific offense. There must be a crime
committed and the court must be satisfied that
there must be a proof, mere probable cause.
Probable cause must be personally determined
by the judge. Personally examine the applicant
and the witnesses. Ex nay police gidalaang
applicant the judge must personally/ direct
conduct an examination. Recorded naxa.
Ex. Kanus a man kanakahibawnganaasiyaypusil,
aha man dapitiyangbalay, aha man
nahimutangningpusilsaiyangbalay? Ok.
Then iyangmga witnesses, most likely the
witnesses are those who conducted the
surveillance or if drugs katong mi conduct ug test
buy, kanangsuwayanrajudnmu kung
nagbaligyaba.pagpakarungingnondawdidtonga
buyer ka, palitdawdidto. Buyer: tinuodjud sir, naa
oh. Test buy ran a xa, di xadakponkay test buy
ra.Mura gudugmic test mic
test.Unyaigbalikdidtomo execute nadaunxag
affidavit. Level 3 naxa sir. Mobaligya nag 3kilos in
a week. Mao to angmotestifysa affidavit parasa
SW.
Particularly describing the place to be searched
MEANING, a kind of description that in such a
way that searching officer must be able to locate
it and not mistake it for other
place.Sagadanabuhatanug sketch.Pilaka turn,
etc. it is attached in the application for the
compliance of particularity of description. Also,
the thing to be searched.1 SW 1 thing to be
searched. It can be served anywhere in the Phil.
In one case, a SW was issued to search
specifically described premises only. A
contraband only but in the search warrant the
occupant / owner of the house was not
mentioned. Should the SW be invalidated on the
ground that the owner of the place to be
searched was not mention?
Ans: PP vsQuilman July 6, 2007
Page | 354

The SC said that SW is issued to search a
specifically described premises only and not for
the searched of a person. Not a requisite that the
owner be named. Failure to name the owner by
the applicant in the SW is not a ground to
invalidate it.
Scatter shot warrant is a SW issued for more than
1 offense. Totally void.
General warrant is one that fails to sufficiently
specify the place to be searched and the thing to
be seized.
Section 5.Examination of
complainant; record. — The judge must,
before issuing the warrant, personally
examine in the form of searching questions
and answers, in writing and under oath, the
complainant and the witnesses he may
produce on facts personally known to them
and attach to the record their sworn
statements, together with the affidavits
submitted.
Meaning the testimony of the applicant and the
witnesses must be recorded. The TSN must be
attached to the record.
Section 6.Issuance and form of search
warrant. — If the judge is satisfied of the
existence of facts upon which the
application is based or that there is
probable cause to believe that they exist,
he shall issue the warrant, which must be
substantially in the form prescribed by
these Rules.
Section 7.Right to break door or window to
effect search. — The officer, if refused
admittance to the place of directed search
after giving notice of his purpose and
authority, may break open any outer or
inner door or window of a house or any part
of a house or anything therein to execute
the warrant or liberate himself or any
person lawfully aiding him when unlawfully
detained therein.
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They can break open the outer or inner door or
window of the house.
Sec 8 has something to do with the
implementation of the SW.
Section 8.Search of house, room, or
premise to be made in presence of two
witnesses. — No search of a house, room, or
any other premise shall be made except in
the presence of the lawful occupant thereof
or any member of his family or in the
absence of the latter, two witnesses of
sufficient age and discretion residing in the
same locality.
TAKE Note: Issuance of SW, kung nay sayop
invalid. Bantayanan sad sa implementation, even
if there is a valid SW it can be declared illegal if
there is defect in implementation. Among which
are mentioned in Sec 8.
If there is no member of the family, shall the law
enforcer postpone the search?
No, bec the search could still be made in the
presence of the two witnesses of sufficient
age and discretion residing in the same
locality.
There was this one case JD handled
dihasapagservenilasa SW. Nanaganangtagbalay.
Nanala man silag media ang media men
ilanggihimung witness and they were able to
seize illegal drugs. Was the search proper?
In that case the answer is no because although
there were media men who witnessed more than
2 in fact but remember the requisite that they
must be residing in the same locality. The media
men were not residing in that locality. Thus it
invalidates the search.
Section 9.Time of making search. — The
warrant must direct that it be served in the
day time, unless the affidavit asserts that
the property is on the person or in the
place ordered to be searched, in which case
a direction may be inserted that it be
served at any time of the day or night.
It is important to specify day or night. Pag day,
day rajudma serve.
Section 10.Validity of search warrant. — A
search warrant shall be valid for ten (10)
days from its date. Thereafter it shall be
void.
That is what called FUCTUS OFFICIO, automatic
void. Although it is valid only for 10 days it
doesn’t mean that the law enforcers could serve
it every day within 10 days. It cannot be used
every day except when the search started at
night time and the would continue it the next day
tungodtingalesakadakosalugar.
Another you should remember is Sec 11.
Section 11.Receipt for the property seized.
— The officer seizing property under the
warrant must give a detailed receipt for the
same to the lawful occupant of the
premises in whose presence the search and
seizure were made, or in the absence of
such occupant, must, in the presence of at
least two witnesses of sufficient age and
discretion residing in the same locality,
leave a receipt in the place in which he
found the seized property.
Kining Sec 11 nakuhanan mu ang item, ilista nan
mu unyaikawangmo issue sa receipt. You are
going to give it to the occupant if present xxx re
read the provision. Failure to follow this
procedure will invalidate the search.
Why are the searching officers are required to
give receipts?
So that walayreklamongaadunaygpanguha.
Issuances of the receipt connect it with Crim Law
Page | 355

Sec 21 RA 9165. It has something to do with
inventory and taking of pictures. Aside from
making receipt( a way of inventory) kung drugs
na u have to comply with the requirement to take
pics on the items in the presence of the
occupant. Saresiboangmopirmaangnanindakay
required by law peroangubang police ang
occupant angpapirmahon. Sa trial,
dilinakadenyang occupant kayipakitaangpirma.
That has been brought in court. Is such receipt
would be admissible in evidence.
SC ruled that property seized from the accused
with his signature without the assistance of the
counsel and without being informed of his
Constitutional Rights is inadmissible in
evidence.it is as if the accused is under custodial
investigation
.Peroadunapudayawmokahibulongngaadunay
ruling ang SC nga admissible pud. Search sa
Legal Whiz daw. Receipt of ConfiscatedProperty. U
will notice that there are conflicting ruling by SC.
The law enforcers have to take note of the
requisites: Secs 8-11.
Section 12.Delivery of property and
inventory thereof to court; return and
proceedings thereon. — (a) The officer must
forthwith deliver the property seized to the
judge who issued the warrant, together
with a true inventory thereof duly verified
under oath.
(b) Ten (10) days after issuance of
the search warrant, the issuing
judge shall ascertain if the return
has been made, and if none, shall
summon the person to whom the
warrant was issued and require him
to explain why no return was made.
If the return has been made, the
judge shall ascertain whether
section 11 of this Rule has been
complained with and shall require
that the property seized be
delivered to him. The judge shall see
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to it that subsection (a) hereof has
been complied with.
(c) The return on the search warrant
shall be filed and kept by the
custodian of the log book on search
warrants who shall enter therein the
date of the return, the result, and
other actions of the judge.
A violation of this section shall constitute
contempt of court.
We have learned that in the SW itself, the
searching officers are directed to immediately
bring the seized item to the court. Sometimes
other officers kayideretsosa PNP crime lab which
is not correct.
There was one case reached in SC: “to search
undermined amount of shabu”. The SW was
questioned by the accused that it allegedly
violated the requisites that SW must particularly
describes the property to be seized, it merely
states undetermined amount of shabu.
SC ruled that Yes it is proper in the case of PPvs
Pee GR no. 140546-47 01-20-03
Section 13.Search incident to lawful arrest.
— A person lawfully arrested may be
searched for dangerous weapons or
anything which may have been used or
constitute proof in the commission of an
offense without a search warrant.
It tells us that a search may be made without SW
that is search incidental to a lawful arrest. There
must be a lawful arrest first and then search. Not
vice versa. What to be searched?
 dangerous weapons
 anything which may have been used
or constitute proof in the
commission of an offense
Lawful warrantless searched.
Search for dangerous weapons that might put in
danger or in peril the life of the searching officer.
Anything obtained would be inadmissible in
evidence in any proceeding if there is violation of
the above provision.
The search is not only limited to the person of the
accused. The arresting officer may also validly
searched the immediate premises or area within
the immediate control of the person arrested.
Immediate control-
For ex I am subjected to arrested, they would
searched me my person not only my person but
also this table because I might have a weapon or
gun in my drawer that I could be used against
them. That could be searched. Or I might have
the things that was used in the commission of
the crime as a proof of the crime that I have been
committed.
For ex you arrested while driving ur car, u can be
searched as well as ur car, compartments bec it
is within ur immediate control not only weapons
but also anything that constitute as proof in the
commission of the crime.
In one case the SC, the accused was arrested for
rebellion while on board of public vehicle the
search was conducted on his person but also his
house was searched. His house was located
distance away from where he was arrested. So he
questionedthe search made on the house. Is the
search vaild, considered as immediate control?
SC ruled in negative bec the house is located
some blocks Away.NolascovsPano 147 SCRA 509
SEARCH MUST BE CONTEMPORANEOUS with the
lawful arrest and made in the place of arrest.
Dihadihajudkadaun I search. Not tomorrow pa.
Page | 356

There are other cases in Political Law, valid
warrantless searcht:
 Search incident to lawful arrest
 With consent of the person searched
Ex law enforcer went to ur house, occupant
agreed to be searched.
 Violation of Tariff and Customs code
 Search and seizure on vessels and
aircraft.
Why? Because the vessel and the aircraft can
quickly move out of the jurisdiction before a
warrant can be secured
 Extended to motor vehicles for contra
band when not practicable to secure
search warrant
Search and Seizure of Vessels and Aircrafts:
Which may be made without a search
warrant. Why? Because the vessel and the
aircraft can quickly move out of the jurisdiction
before a warrant can be secured.
Search of a Motor Vehicle for Contraband:
Jurisprudence has extended it to search
of a motor vehicle for contraband where it is not
practicable to secure a search warrant.
Pero magbantay mo ha. Aduna bayay
mga jurisprudence ani nga exception.
Usa niana kadtong didto sa Iloilo.
Kadtong gi search nila tong barko unya 3 ka
adlaw pa ilahang paabot. Matod pa sa SC, aduna
pa moy time para pag secure. That case of
People vs. Aminudin wherein the enforcers
earlier receive a tip from an informer that the
accused was aboard a vessel bound for Iloilo and
was bringing marijuana. They waited for him.
One evening, they approached him as the vessel
___ (paspas kaayo). Now the court held that the
marijuana cannot be admitted as evidence since
it was illegally searched (INVALID) since the
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police officers had at least 2 days within which to
obtain a search warrant.
PEOPLE VS. AMINUDIN 163
SCRA 402
FACTS: The police agents in Iloilo City
received a tip from a reliable informer
that the accused, Aminnudin, was on a
vessel bound for Iloilo and is carrying
with him marijuana. The said vessel was
to arrive few days after such tip.
On the day of the arrival, the
agents then waited at the port for the
vessel. Upon arrival of the vessel and
when the suspect disembarked, they
immediately frisked him and searched his
bag which contained the marijuana.
Subsequently, the Aminnudin was
arrested.
During the trial, the accused that
alleged that he was arbitrarily arrested
and immediately handcuffed and that his
bag was confiscated without a search
warrant.
ISSUE: Is the marijuana found in the
accused bag admissible evidence?
HELD: No. The police agents had
enough time to secure a warrant to arrest
and search the accused but did not do so.
In addition to this, the arrest did not fall
into any of the exceptions of a valid
warrantless arrest because the accused-
appellant was not, at the moment of his
arrest, committing a crime nor was it
shown that he was about to do so or that
he had just done so.
Pero diha poy kaso nga kadtong didto sa
nagsakay ug bus. Kadtong gikan sa
Baguio….Sagada. That case of People vs.
Mikael Malmstedt, June 19, 1991 wherein the
warrantless search was declared VALID because
of the existence of the following circumstances:
There where persistence reports from
NARCOM that people coming from Sagada were
transporting marijuana. The NARCOM agents
receive an information that a Caucasian coming
from Sagada….you read that case (wala
gipadayon ni JD). Read it and distinguish it from
the case of Aminudin.
People vs. Mikael Malmstedt, June
19, 1991
FACTS: Mikael Malmstedt, a Swedish
national, was found, via a routine
NARCOM inspection at Kilometer 14,
Acop, Tublay Mountain Province, carrying
Hashish, a derivative of Marijuana. RTC
La Trinidad found him guilty for violation
of the Dangerous Drugs Act. The accused
filed a petition to the Supreme Court for
the reversal of the decision arguing that
the search and the arrest made was
illegal because there was no search
warrant.
ISSUE: Whether or not the decision of
the trial court should be reversed (or
affirmed) because the accused argues
that the search and arrest was made
without a warrant
HELD: The RTC decision is affirmed.
The constitution states that a
peace officer or a private person may
arrest a person without a warrant when in
his presence the person to be arrested
has committed, is actually committing, or
is attempting to commit an offense. The
offense was recognized with the
warrantless search conducted by
NARCOM prompted by probable cause:
(1) the receipt of information by NARCOM
that a Caucasian coming from Sagada
had prohibited drugs in his possession
and (2) failure of the accused to
immediately present his passport.
Check Point:
Regarding check point, the law enforcers
are just allowed to conduct visual search.
So kanang imohang sakyanan tan-awon
ran a siya. Visual…visual. Dili na sila pwede
mangukay didto sa imohang baggage, sa
imohang compartment, sa luyo. Dili na sila
pwede manglili sa ilalom. Visual ra.
But of course kung makakita sila ug
probable cause, they can now conduct extensive
search. For example nakakit sila nga aduna kay
piece of cloth nga adunay dugo that can be a
ground of extensive search and not just visual
search.
Page | 357

So, extensive search could only be valid if
the police officers conducting the same had a
reasonable or probable cause to believe before
the search that they would find instruments or
elements of a crime on the vehicle to be search.
Look at the case of People vs. Baquista,
September 18, 1992. (plz check the title of this
case coz dili ko ka klaro and wala sa akong notes.
Tnx)
Plain View:
Then another is plain view. So for
example, law enforcers are enforcing or
implementing a search warrant for drugs. Now, in
the course of their search, they found a firearm
on top of the table. Since the warrant is only for
illegal drugs, could they seize or confiscate the
firearm which is not the subject of the search
warrant? YES, if it is in plain view.
In plain view – meaning there is no
obstruction on their view.
Requirements of Plain View:
1. Prior valid intrusion based on the
valid warrantless arrest in which the
police are legally present in the
pursuit of their official duties;
Meaning to say that the presence of the
police in that place is valid or legal. So, prior valid
intrusion based on a valid warrantless arrest in
which the police are legally present in the pursuit
of their official duties.
2. Evidence has been inadvertently
discovered by the police who have
the right to be where they were;
What do you mean by inadvertently
discovered?–(no intention to locate it.)
For example, nag search sila ug drugs.
Nakuha na nila ang drugs pero padayon pa
gihapon sila pag search unya nakita to nila ang
pusil. Could it be said that the firearm was found
in plain view? NO, because one of the requisites
in plain view is that the item must be
inadvertently discovered. Meaning, there was no
intention to locate it in the course of
implementing the search.
3. The evidence must be immediately
apparent;
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So, wala giputos. Nahinumdom mo atong extensive search but limited search wherein
dihay…I forgot that case. Kadto bitaw gibitay…
gisulod sa plastic ba to? Plastic bag gibitay unya the officer is allowed pat or to touch the outer
gikuha niya unya ang sulod niadto I think clothing of the person. Sa atoa pa na, igo lang
marijuana ba to. If I was not mistaken, the search ka rakisahon/ kapkapon/ hikap hikapon.
warrant was for an unlicensed firearm or the Search Incidental to Stop and Frisk
other way around. The search, kadtong gibutang Lawful Arrest
sa plastic, cannot be considered us plain view the arresting officer law enforcer is limited
kay naa may naka obstruct sa imohang view… can also validly make a only in search for:
ang plastic. search for:  dangerous
4. The plain view justified the seizure  dangerous weapon only
of evidence without further search. weapons
Ok, you can search more jurisprudence.
 anything that
You just type plain view doctrine.
the arrested
person might
Stop and Frisk (The Terry Search):
have used in
This was asked in the BAR. The
the commission
examinees were asked “what do you mean by
of a crime
Terry’s Search? – is a doctrine in the case of
Terry vs. State of Ohio 392 US 1. Kaning si
 which
Terry mao ni ang name sa accused versus State
constitute as
of Ohio.
evidence for
What do you mean by Terry’s Search or
the commission
Stop and Frisk?
of the crime
Stop and Frisk is limited protective search
of the outer clothing for weapons and not a
general or exploratory search. Its justification is
Terry vs. State of Ohio 392 US 1
based on the fact that the police officer does not
(1968)
hold a mere suspicion but has a genuine reason
FACTS: In the middle of afternoon
in the light of his experience and surrounding
on October 31, 1963, a police officer was
conditions which warrants the belief that the
in his usual roving patrol in downtown of
suspect has concealed weapons and the officer
Cleveland. Now, the law officer saw two
conducts the limited search for his own
(2) unknown men who later were
protection and for others in the area.
identified as John W. Terry (Terry) and
Ganina, naghisgot man ta sa search
Richard Chilton (Chilton) and who by their
incidental to lawful arrest diba? Now, the
acts appeared to him preparing to rob a
arresting officer can also validly make a search
store. So nag roving siya unya nakakita
not only to the dangerous weapons that the
siya aning duha ka tao. Unya sa iyang
arrested person might be used against him but
tan-aw because of his experience, murag
also for search for anything that the arrested
nagplano ni nga manglungkab.
person might have used in the commission of a
At one point, a third man later on
crime or which constitute as evidence for the
identified as Katz confers with the first
commission of the crime.
two then disappeared and re joined the
Whereas diri sa stop and frisk, the law two. The police officer suspecting them to
enforcer is limited only in search for be armed and that they are preparing to
dangerous weapon. Meaning, it is NOT an rob the store, the police officer
approached them and identified himself
Page | 358

as a police officer and ask them to
identify themselves. When they simply
mumbled an answer and did not get a
clear response, he patted down the outer
garment of Terry and felt a gun in his
pocket and removes the same. A gun was
also recovered from the companion of
Terry. Terry was convicted for carrying a
concealed weapon. Terry argued that the
search was illegal because there was no
probable cause of his arrest. Kay ato man
nahibaw-an ganina nga in order for the
search to be valid there must be a lawful
arrest.
ISSUE: Matawag ba nga valid ang maong
arrest.
HELD: According to the SC, that was
VALID because that is what we call Stop
and Frisk. We call it Terry Search.
Under this doctrine, a law
enforcer is allowed to stop (pilmero stop
usa) a person whom he has a genuine
reason in the light of his experience that
the person has concealed weapon. And
because of the, after stopping him coz
nagtuo man siya nga nay concealed
weapon, then he can now frisk him.
So in other words, if you are walking unya
aduna kay mga suspicious movements unya tan-
aw2x ka unya something is bulging on your waist
then a law officer who happened to observe you
can stop you and after stopping you….kanang
nag tan-aw2x ka unya something is bulging in
your waist igo na ba na nga makapa stop? Mo
oyon nab a na sa kadtong facts sa terry case?
Oyon na. Then so, based on experience of the
law enforcer then aduna na siyay reasonable or
genuine reason to stop you and then frisk you.
But the purpose is only for concealed weapons.
Ang problema ana kay kung aduna kay concealed
weapon, you are now under arrest. Gikan sa stop
then frisk them mo elevate na na siya sa arrest.
Then after the arrest (there is now a valid arrest)
then there can now be an extensive search. Do
you follow?
How do you compare Terry Search against
Search Incidental to Lawful Arrest?
Terry Search Search Incidental to
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Lawful Arrest want to invalidate the search warrant or if you
1. it does not 1. It requires want to invalidate the warrant of arrest) OR
require probable PROBABLE another motion but with the same effect would
cause. What is CAUSE for the be Motion to Suppress Evidence.
required is just arrest.
GENUINE Where to File?
REASON based If there is no criminal case…kay kana gud
on experience dunay search possible man gud na consequently
of law enforcers. adunay criminal case nga e-fill ana. For example
nakuhaan ka ug drugs aw file-an ka ug violation
2. EXTENSIVE of RA9165 then nakuhaan ka ug pusil then file-an
2. Conducted by ka ug violation sa PD 1866. So the question is
mere pat down SEARCH and is
not conducted where are you going to file a motion to quash the
or by mere search warrant or to suppress the evidence? It
touching. for only
finding could be AND/OR. So if you want, you can file
LIMITED Motion to quash the search warrant and motion
SEARCH on weapons but
also for to suppress evidence or just motion to suppress
outer clothing evidence. Kung adunay search warrant then file
for weapons searching of
evidence. ug notion to quash and motion to suppress pero
ug illegal ang search coz walay search warrant
aw unsa pa man imong e-motion to quash so
Remedies for an invalid search or illegal motion to suppress evidence.
search: (IMPORTANT!) So where are you going to file it?
Section 14. Motion to quash a search If there is no case yet filed then you can
warrant or to suppress evidence; where to file it in court who issued the search warrant. But
file. — A motion to quash a search warrant if there has been a case filed you can file the
and/or to suppress evidence obtained motion before the court where the case is
thereby may be filed in and acted upon only pending.
by the court where the action has been But remember the doctrine in the case of
instituted. If no criminal action has been Stonehill vs. Diokno. Unsa man na? mao nay usa
instituted, the motion may be filed in and sa mga kaso sa political law nga dili dapat
resolved by the court that issued the kalimtan nga basahon.
search warrant. However, if such court Stonehill vs. Diokno (GR No. L-19550
failed to resolve the motion and a criminal June 19, 1967) requires that the right to
case is subsequent filed in another court, question the search warrant lies only to the
the motion shall be resolved by the latter person affected or only the party who right has
court. been violated can question the validity of the
Q: What are you going to do when a client search.
or relative of the accused went to you office and Remember that these remedies are
ask for your legal assistance and upon interview alternative and not cumulative. For example, you
you came to know that her husband was arrested filed a motion to quash the search warrant but it
after the search was made in their house without was denied later on, you cannot file motion to
search warrant. What are you going to do? suppress evidence coz they are alternative. For
A: Sec. 14 tells us that there could be example, ni file ka ug motion to quash sa search
Motion to Quash against the search warrant warrant before the issuing court coz wala pa na
(motion to quash ni ha nga dili sa information but file ang kaso. Unya later on ni file na sad ka ug
adtong sa search warrant. Kanang Motion to motion to suppress evidence aw dili na pwede
Quash mao nay term nga gamiton nimo if you kay naka file na man ka ug motion to quash.
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If you want to question the legality of the
arrest, be sure to do it before arraignment
otherwise, the same would be waived.
What about the admissibility of evidence?
Suppose you did not file a motion to
suppress evidence before arraignment or even
after arraignment. Do you still have a chance to
question the admissibility of the evidence? YES,
you can still raise the objection when the same is
formally offered in evidence later on.
And remember legality of the arrest is
different from the legality of the search. It could
be an objection as to the legality of the arrest or
objection as to the admissibility of the evidence.
In other words, even if the accused did not object
to the legality of his arrest before arraignment it
does NOT follow that the waiver to question the
illegality if his arrest also mean that he is waiving
his right to object to the inadmissibility of the
evidence obtained by reason of his illegal arrest.
Dili kana buot pasabot nga kumo wala siya mo sa
legality sa iyang arrest dili na pod siya pwede
maka question sa admissibility sa evidence nga
nakuha gikan sa iyang illegal arrest. That is
entirely different. That is the ruling of the SC in
the case of People vs. Aruta 288 SCRA 626.
RULE 127
Provisional Remedies in Criminal Cases
Section 1. Availability of provisional
remedies. — The provisional remedies in
civil actions, insofar as they are applicable,
may be availed of in connection with the
civil action deemed instituted with the
criminal action.
Rule 127 is about provisional remedies in
criminal cases. We have learned provisional
remedies. All those provisional remedies in civil
cases in so far as they are applicable may
likewise be availed of in criminal cases in
connection with the civil action.
For example, in the case of rape we have
learned that the complainant can apply for
support pendente liti which is one of the
provisional remedies. Another is preliminary
attachment.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Section 2. Attachment. — When the civil
action is properly instituted in the criminal
action as provided in Rule 111, the
offended party may have the property of
the accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused in the following
cases:
(a) When the accused is about to
abscond from the Philippines;
Tan-awa ang Section 2. Lahi ang iyang
grounds didto sa preliminary attachment didto sa
Rule 57. When the accused is about to abscond
from the Philippines even without the intent to
defraud.
Kay kadtong didto sa civil case, intend to
depart is not a ground for the grounds of
preliminary attachment coz the departure must
have intent to defraud the creditor.
(b) When the criminal action is based on
a claim for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public officer,
officer of a corporation, attorney, factor,
broker, agent, or clerk, in the course of his
employment as such, or by any other
person in a fiduciary capacity, or for a
willful violation of duty;
For example the accused was charged
with estafa by misappropriation or if the accused
was charged with malversation preliminary
attachment could be asked.
(c) When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
(d) When the accused resides outside
the Philippines.
RULE 128
Evidence
What do you mean by Evidence?
Ato tong nahibaw-an when we talked
about decision either in civil or criminal case that
in rendering decision, the court must based its
decision on the facts and the law.
Asa man mangita ang korte sa facts nga
ang judge wala man sa dihang pagkahitabo?
Unsaon man niya pagkahibalo nga ang incident
nahitabo anang adlawa, nianang orasa, nianang
lugara u gang accused and ang gidunggab mao
ni siya? Unsa on man niya pagkahibalo? Aw kana
diha mo intra ang evidence. Naa diha mo intra
ang evidence. So ikaw nga kihante hasta pod ang
akusado mo presintar ug mga ebidensya
regarding anang maong incident.
Unsa man nang maong ebidensya? This
could be a form of witnesses – testimonial
evidence; pwede pod ni siya ug mga dokumento
– document evidence; ug object evidence.
Ug mo ingon ka ug evidence, automatic
nga ang mo sulod sa atong huna2x is facts or
ang facts sa kaso dili law ka yang balaod dili
magkinahanglan ug ebidensya. Are you going to
present evidence to the court as to the law? NO
because the court it presumed to know the law.
Even the ordinary person is presumed to know
the law even if you have not taken a single unit
in law school – ignorance of the law excuses no
one. So ang atong problema diri sa evidence mao
ang facts ra gyud.
Two (2) Main Areas in Study of evidence:
1. Admissibility of Evidence – whether or
not this piece of evidence is admissible.
Daghan tang mga rules ana…Rule 130.
2. The Procedure of Reception of
Evidence – kay bisan pa ug kabala ka
nga admissible ni pero dili ka kabalo mo
present sa imong ebidensya wala, wala
gihapon.
Section 1. Evidence defined. — Evidence
is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the
truth respecting a matter of fact.
When we say Evidence, it is a means,
sanctioned by these rules, of ascertaining in a
judicial proceeding the truth respecting a matter
of fact.
What does it mean?
It simply means that that is the means of
proving the factual allegation in a judicial
proceedings. Sa ato pa, kining atong Rules on
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Evidence applicable ra kani siya sa mga
proceedings sa korte.
Q: Applicable ba ni siya (Rules on Evidence)
in administrative bodies like in Ombudsman or
Civil Service or sa Office sa President, or sa DILG
or NLRC, DepEd, COMELEC or Senate?
A: The Rules of Evidence n the Rules of
Court are applicable only to judicial
proceedings. These rules does not apply to
administrative bodies because they have their
own rules in administrative bodies. Kada
admin bodies adunay kaugalingon procedure
sa pa receive ug evidence. However, in the
absence of any provisions didto sa ilaha the
Rules of Court is given supplementary effect.
Trial Hearing
Refers to the reception There could be hearing
of evidence without reception of
evidence. So, hearing is
a general term which
will include trial.
Sources of the Laws on Evidence:
1. Rule of Court (main source)
2. Constitution
3. Revised Penal Code
4. Civil Code
5. Other Special Laws
Kahinumdom mo adtong libel kung asa i-
file? Kahinumdom mo? Gi discuss na na nato.
Adto sa RTC. Unya asa man ang venue? Asa man
ta nanguha ana nga wala man na sa rules of
court? Tua sa RPC. So sa ato pa, ang RPC usa sa
mga sources sa law on evidence.
Evidence is a means of proving facts. So
in other words, kaning evidence gamit lang ni
siya if there are factual issues. If there is no
factual issues, there is no need of presenting
evidence. Nahinumdom mo sa judgment on the
pleadings? When the defendant admits all the
material allegations in the complaint then the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
court now may render judgment based on the didto? Only the Ultimate Facts. Kanang
pleadings alone submitted by the parties. Aduna
pa bay presentation of evidence? Wala na coz Ultimate Facts mao nay gitawag ug Factum
there are no mo factual issues. Kung ang nabilin Probandum.
is ang legal issue nalang or kung unsa nga Factum Probandum Factum Probans
balaod ang i-apply reception of evidence is no Ultimate Facts Evidentiary Facts
longer necessary and the court require the The fact that is sought The facts nga imong i-
parties only to submit memorandum. to be established. support sa imong
Remember also nga kaning court allegation
proceedings is NOT a scientific method of
ascertaining the truth. Kay kani man gud For example in the case of murder
evidensya diba mo gawas ra man ni siya if nay whether or not the accused is the one who stab
factual issue? Meaning kinsa may nagsulti sa the victim then that requires evidence to prove
tinuod. Pananglitan gikiha ug rape. Ingon ang his factual allegation.
accused “dili man na tinuod”. Ingon pod ang usa, Classifications of Evidence:
“tinuod ning akong gisulti”. Unya ingon pod ang A. As to form:
accuse, “wala man na nako siya gi rape”. So
kinsa may nagsulti nilang duha ug tinuod? Mao a. Object Evidence
na dihaa nga mo come in ang rules of evidence -
that is the means of proving factual allegations. b. Documentary Evidence
Unaya possible nga kung kinsay tuhoan
sa court maoy mo daug. But remember that c. Testimonial Evidence
judicial truth is different from what is called moral
truth. It could be that this person who is accused B. As to Other Classifications:
of a crime be acquitted even if he is really the
one who committed the crime. Why? Because the a. Relevant Evidence – meaning it
prosecution failed to present enough evidence to has connection to the issues of
convict him so, in judicial truth wala siyay sala the case. It has tendency to
pero in moral truth sad-an siya. prove or disprove factual
Difference between Evidence and Proof: allegations.
(IMPORTANT! BAR!)
b. Material Evidence – evidence
Evidence Proof
directed to prove the facts in
is the MEANS of is the RESULT OF
issue.
proving or disproving a EVIDENCE
fact. c. Competent Evidence –
(hinumdumi ni) meaning that is
Section 2. Scope. — The rules of not excluded by the law or by any
evidence shall be the same in all courts and provisions of the Rules.
in all trials and hearings, except as
otherwise provided by law or these rules. Mo adto ka sa korte unya
Ato na ning gi discuss. makadungog ka ug mga abogado
didto mo object “your honor
Diffference between Factum Probandum objection. Irrelevant, immaterial,
and Factum Probans: (IMPORTANT! BAR!) incompetent” shotgun. Wala siya
Kahinumdom ba mo kadtong pagbuhat kabalo unsay sakto. Dapat e-
sa complaint? Kadtong sa civil ba. Isulti ba to specify.
d. Direct Evidence – that proves
nimo tanan? DILI. Unsa ra man mong isulti the fact in dispute. If it pertains
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to testimonial meaning he is an
eye witness.
e. Circumstantial Evidence – the
existence of a particular fact in
dispute may be inferred as a
necessary or probable
consequence. Circumstantial
meaning the opposite of direct.
f. Cumulative Evidence – refers
to the same kind to prove the
same fact.
For example the accused would
say tha he was in Boracay as his
alibi. Ug mo present gani siya ug
friends nga didto sa Boracay then
that is considered as cumulative
because same form of evidence
(testimonial) to prove the same
fact – nga tua siya sa Boracay.
g. Corroborative Evidence – NO because the Constitution prohibits its
(later on, you will learn more
about this)
For example ang rape victim
aside from her testimony would
present a medical certificate, that
medical certificate is
corroborative because it is a
different form of evidence that
can prove the same fact.
h. Positive (Affirmative)
Evidence – when you say that he
was the one who stab the victim
then that is affirmative.
i. Negative Evidence – when you
say that he was not the one then
that is negative.
Section 3. Admissibility of evidence. —
Evidence is admissible when it is relevant
to the issue and is not excluded by the law
of these rules.
Two Requirements of the admissibility:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
1. Relevant – a piece of evidence is
considered relevant when it has LOGICAL
CONNECTION to any of the issues of the
case. Basta kay duna na siyay connetion
aw relevant na siya.
2. Competent – meaning a piece of
evidence is NOT EXCLUDED. The admition
of such evidence is not prohibited by the
law or the rules.
For example, while walking on your way
home you were stopped and search by a police
officer and a shabu was taken from your pocket.
You are now charged with violation of RA 9165. Is
the shabu taken from your possession relevant to
the case? YES because it has a logical connection
to the case.
Pananglitan ang nakita didto dili shabu
kundi pusil. Is it relevant? NO because the
prosecution is for RA 9165.
If the shabu is relevant, is it competent?
admissibility being a product of illegal search. So
that piece of evidence although very relevant on
that case is not admissible because it is
incompetent.
“Excluded by law” – meaning there is a
law excluding it or prohibiting its admission. So
you have to remember the Constitution.
You have to remember the
EXCLUSIONARY RULES OF THE CONSTITUTION
such as:
 rights against unreasonable searches and
seizure;
 right to privacy of communication –
remember RA 4200 the Anti Wire Tapping
Act;
 right of a person in custodial examination
– that any evidence obtained in violation
of the Miranda Doctrine even if that is a
gospel truth the same is inadmissible;
 right against self-incrimination.
Section 4. Relevancy; collateral matters.
— Evidence must have such a relation to
the fact in issue as to induce belief in its
existence or non-existence. Evidence on
collateral matters shall not be allowed,
except when it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue.
We have discussed this already.
Relevancy of Evidence:
Meaning evidence which must have such
relation to the fact in issue as to induce its
existence or non-existence.
For example gikiha siya ug violation sa
Anti Drugs. Ingon ang mga pulis “amo gyud ni
siyang nakuhaan ug shabu” is it relevant? YES
because that evidence tend to induce the belief
of its existence. Unya ug mo ingon ang accused
nga “dili na tinuod.” Admissible ba na? Relevant
ba na? YES because it tend to induce the non-
existence of the shabu.
Evidence of Collateral Matters:
Generally: the same is NOT ADMISSIBLE
Except: when it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue.
For example flight. Kanang mo layas inig
human ug dunay gipatay. Wala gud nakakita nga
siya ang nagpatay. Pero sa tanang mga tao sa
ilahang baranggay siya ra man ang nilayas.
Could it be admissible as evidence? YES, that can
be coz although that is a collateral matter but to
a certain degree it will establish the probability or
improbability of the fact in issue.
Motive is also a collateral matter.
Pananglitan walay nakakita kung kinsay nagpatay
ana niya. Pero ni dagan man na siya pagka
mayor. Unya wala man gyud laing kontra. Aw
then motive.
Dunay bana gipatay. Wala man gyud
siyay lain nga kontra. Pero nahibaw-an nga ang
iyang asawa adunay “kabs”. Kinsa may motive
pagpatay niya? Kanang evidence regarding
motive is it admissible as evidence to prove the
guilt of the accused? It could be although that is
a collateral matter but to a certain degree it will
establish the probability or improbability of the
fact in issue.
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Conditional Admissibility:
For example, nangutana na ang counsel.
Ni testify ang accuse. Ingon ang abogado “Mr.
Witness, could you tell the court what is your
highest educational attainment?” ingon pod ang
public prosecutor “objection your honor it is
immaterial and irrelevant. What has educational
attainment to do in the case of murder? The
issue here you honor is whether or not the
accused is the one who killed the victim.” The
counsel said “your honor, we will show the
materiality after a couple of questions.” Unya
ingon ang court “Ok. Objection overruled.
Witness may answer provided that the answer to
the first question should be connected to the
issues of the case.” And the counsel said “yes
your honor we will promise that and if we failed
your honor, I myself move that the answer of the
witness be deleted in the records of the case. “ok
proceed”.
Ingon dayon ang accused “I am a law
graduate.” The counsel asked “where did you
finish your bachelor of laws?” the prosecutor said
“objection your honor. That’s too much you honor
 we are wasting our time here. Same grounds
your honor”    the counsel of the accused
said “your honor same manifestation. We will
connect it later” “ok proceed” The accused
answered “at the Harvard University your honor”.
Nangutana na sad ang counsel “when did
you finish you bachelor of laws?” Prosecutor:
“same objection your honor” Counsel: “same
manefistation your honor” Court: “same rulling”
   accused: “I finished my bachelor of laws
last Aug. 25, 2011” Counsel: “so were you there
on Aug. 24, 2011 when this alleged murder
occurred?” Accused: “at that time I was in US coz
in the next day I would be graduating” Diba naa
nay connection? Ang kadtong mga previous you
call it Conditional Admisibility.
Meaning, the court will allow a piece
of evidence which seems to be of no
connection or not relevant in the case
provided that the party offering the same
could make a connection.
Multiple Admisibility:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A piece of evidence could be admitted to
serve two or more purposes.
Perhaps you remember Res Gestae and
Dying Declaration. Statement uttered by a
person like a victim of stabbing could be
considered as a dying declaration and the same
time as res gestae provided that all elements of
dying declaration and res gestae are present.
Curative Admissibility:
If the court will admit a piece of evidence
which is inadmissible in favor of a party, the
court should also allow the admission of that
inadmissible evidence as regards the other party.
For example a piece of evidence (a
document) is inadmissible but the same is
admitted by the court for that party, when the
adverse party will use the same document as
evidence for his case then the court should also
allow the same.
Basin naglibog mo. Pananglitan kaning
dokomentoha akoa ni, akoa ning i-presentar para
sa akong kaso dili buot pasabot nga dila ka
makagamit ani. You can use this. Inig basa nimo
ani unya aduna gani mga favorable statements
for you then you can use this as evidence. I can
mark this as my exhibit and you can also mark
this as your exhibit even if that is mine. So if this
is inadmissible but the court admitted it then the
other party could also use it. That is called
Curative Admissibility.
January 25, 2013
We discussed last meeting, among others
we discussed about search warrant, dibah..? Now
remember that search warrant can be served
anywhere in the Philippines. It can be served
anywhere in the Philippines. Do not confuse it
with what court should an application for
issuance for search be filed. So kung proper xa
pagka issue, it can be executed anywhere. Diha
sa comment sa libro ni regalado. Diha sa
annotation niya sa sec 14, Rule 126. Gi cite niya
ang kaso ni
Malaloan vs. CA
Gr. No.104879,
May 6, 1994
That case shows that an application for search
warrant can be applied in a court which is within
the judicial region and not necessarily in a court
that has territorial jurisdiction over the crime
committed. Diba ato man na nahibal-an nga first
rule, general rule, an application for a search
warrant must be filed before any court that has
territorial jurisdiction over the place where the
crime was committed. But for compelling reason
(diba mao man na ang term) for compelling
reason the application could be filed in any court
within the judicial region. So that is the case in
Malaloan vs. Court of Appeals.
Now from Rule 128 let us jump to Rule 130
Okay Rule 130, when we started our discussion
on Evidence, I made mention that in the study of
Evidence there are 3 most important areas in the
study of evidence.
1. Admissibility of Evidence
2. (wala ni ingon si JD kung unsa ang
ika duha )
So you should know the different rules on the
admissibility of evidence. And that these rules
are mentioned in Rule 130. Now nganong
importante maning Rule 130? Tungad kay
kinining maong rule mao ni siya nag sulti sa rules
sa admissibility. Sa ato pa ang piece of evidence ,
kung ang us aka ebidensiya, testimonial ba siya,
documentary or object, e offer na gani na siya
didto sa court, pwede na nimo objectan based on
Rule 130. Sa ato pa imo jud ning masterun.
Kay kung dili ni nimo masterun unsa-on man
nimo pag object sa ebidensiya nga tua didto sa
korte nga wala man ka kahibalo kung admissible
ban a siya or dili. Unya unsaon man sad nimo
pag kahibalo kung kanang ebidensiya admissible
bana or dili? Sagad, most of the Rules governing
the admissibility of evidence are stated in Rule
130. Unya inig maka hibalo naka nga admissible
na ang maong ebidensiya, kinahanglan maka
hibalo sab ka kung unsa-on na nimo pag present
didto sa court. So the other area is the
presentation of evidence. Kay mag-unsa man,
ikaw abogado, nakahibalo ka nga kanag imong
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ebidensiya admissible pero dili man ka kahibalo
unsaon pag present didto sa korte, dili man ka
kahibalo unsaon na. nya unsaon man na nimo
pagkahibalo nga ingon-ana-on nimo pag ka
presenter? Imo usa tan-awon ang Rule 132.
Tungod kay ang Rule 132 nag sulti nato
mahitungod sa pag present ug evidence. So
those are the 2 important areas in the study of
evidence, Rule 130 and Rule 132.
RULE 130
Rules of Admissibility
A. OBJECT (REAL) EVIDENCE
SECTION 1 . Object as evidence. — Objects
as evidence are those addressed to the
senses of the court. When an object is
relevant to the fact in issue, it may be
exhibited to, examined or viewed by the
court.
These are pieces of evidence that are addressed
to the sense of the court. Kay kaning court gud
aron ka makasabot, kung imong i-limit lang sa
building aw mu-ingon ka nga duna diay sense
ang court diay? So ang imong ibutang sa imong
huna huna ang JUDGE. Do you remember in your
elementary what are the senses do we have? So
the 5 senses. Sight, Hearing, touching, smelling,
tasting. Now everything which is addressed to
the senses of the court, that evidence is
considered an object evidence. And when an
object is relevant to a fact in issue, relevant
(when it has a logical connection to the case).
Duna bay labot didto sa kaso, it may be exhibited
to, what do you mean exhibited to? It can be
shown.
Example: firearm used in the shooting is
recovered by the police, is that relevant to the
case? Yes because that was used in the killing.
This will convince the judge that indeed, kana
man gud mu presenter kag kaso kanang judge
man gud wala na siya sa pagkahitabo. Pareho
ragud nakung ikaw nakakita ka nga dunay gi(wla
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
sad ni ingon si JD unsa) imo dayon na e narrate
pag uli nimo sa inyong balay e narrate dayon na
nimo sa imon bana, or sa imo mama, unya ang
imong mama mag imagine na siya unsay
nahitabo. “ay sus bu****a diay noh!” ngano man?
Kay imo man siayng gisulti-an. Mao pud na ang
judge. Mo na ma convince nimo ang judge nga
kanang maon incident nahitabo gyud, kay wala
man siya diha sa pagkahitabo. so the firearm was
recovered you have to present it in court. So
what kind of evidence is the firearm/ that is
object evidence bacause that is addressed to the
senses of the court. Sight, sense of seeing.
Pananglitan there was this patient , artista, ilado.
He went to the doctor because he wanted his
penis to be enlarged, gusto niya padak-on dili
siya kontento. The problem is that, tuod he
underwent surgery tuod ni dako pero his penis
but the problem is it was deformed. So he filed a
civil case for damages against the doctor who
conducted the surgery. And so when the case is
heard, and during the presentation of evidence ,
suppose the judge hearing the case would
require the plaintiff to show the deformed penis.
What kind of evidence is it? Object! Because that
is addressed to the senses of the court. So it can
be exhibited to the court. So the firearm. And for
example the pictures, after the killing the police
investigators took pictures of the victim, their
position the location of the wounds, that would
be presented in court. What kind of evidence?
Object. The pictures are object. Then it can also
be examined. Object evidence can also be
examined by the court. So for example in a
charge for falsification. You charge the accused
with falsification of public documents, the
accused can allege the falsified signature and
compare it to the standard signature, with the
usual signature of the victim. The court itself can
make a comparison. So what kind of evidence is
it? That document could be considered as an
object evidence.
Then also it can be viewed by the court. Meaning
the court can conduct ocular inspection. So for
example in a charge for frustrated homicide or
murder. You have learned in criminal law that
intent to kill, in this charges, intent to kill is an
element (comment: he meant only for murder).
Failure to prove intent to kill on the part of the
prosecution the accused cannot be convicted of
such crime. Perhaps the crime would only be
slight physical injuries.
Question: How are you going to prove intent to
kill? One way is to show to the court, that the
wounds that were inflicted are located in the vital
organs, such as in the head, stomach. So
pananglitan diri ka na-igo sa dughan, how are
you going to show to the court nga tinuod jud
nga diri ka na samdan sa dughan? Ipakita to
nimo sa korte. You show to the court the scars,
the location of the wounds inflicted. So what kind
of evidecen is it? That is object evidence that is
addressed to the senses of the court. Do you
follow? So to convince the court that had it not
been for the timely medical assistance of the
doctors, you could have died from your wound,
because a vital part of your body was hit. Ok? So
the court can view it.
Or the court can even make experiments.
There was one case involving a case for castle
rustling. The accused was charged with taking
away a baby cow. Unya ang depensa sa accused
kay “ kani siya, anak mani siya sa ako-ang baka”
mao na ang depensa kay naa man pud siyay
baka. Ingon ang private complainant nga “ no, he
is telling a liem ako nang baka.” So what did the
court do? The judge required the private
complainant and the accused to bring the two
“mama cows” near the court house, and let the
baby cow walk. Gibuhi-an ang katong baby cow,
unya kung asa siya mu-duol mao to ang tag-iya
sa baka. Nah didto man mi duol sa private
complainant nga baka. Question, sakto bato ang
gibuhat sa court? The answer is yes. The court
was experimenting to determine who between
the parties is telling the truth.
The court can require the accused to wear the
shoes. For example dunay shoes orslippers nga
na biyaan didto sa crime scene the court can
require the accused to fit the shoes or sleepers.
Mu ingon ang accused, “dili man na ako” the
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court can require hi to wear the shoes to help the
court determine whether the accused was the
one committing the crime. Tingali dili na ingon
nga kana rajud ang basihan sa korte, usa na siya,
makatabang na siya. It can corroborate the
conclusion that indeed the accused was present.
So object evidence.
Take note that being an object evidence or an
object evidence in order to be admissible must
have the requisites of admissibility. Remember
last time we discussed the 2 requisites of
admissibility. RELEVANCE and COMPETENCY.
Aside from that, in order for an object evidence
to be admissible it has to be:
1. Marked
2. Identified by the witness
3. Offered in evidence (it has to be
formally offered in evidence)
When are you going to do the marking? During
pre-trial. One of the matters to be taken up
during the pre-trial is marking of the exhibits.
The Prosecution shall use LETTERS of
the alphabet (PL)
The Defense shall use NUMBERS (DN)
Example:
Exhibit A, Exhibit B, ….Exhibit Z,
Exhibit AA, Exhibit BB,…..and so
on.
Exhibit AAA, etc.
Exhibit 1, Exhibit 2, etc.
This is to distinguish the markings of the
prosecution from that of the adverse party.
MARK:
Kinanghanglan markahan jud. Suppose, a scar is
being shown, a scar on the part of the body, are
you going to mark it? E deformed penis is
exhibited, are you going to mark it? Imong
markahan didto? DILI, imo rana siyang e
manifest didto sa court. imo ranang isulti
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
didto sa court, at this juncture, e record nimo.
Kay kanang imong isulti didto sa court, e record
mana, so imong e sulti didto, “ at this juncturethe
witness is showing his car which has the size of
unsay kadak-on, located asa na locate, so that
mu appealar gani, ang mubasa, Makita nga naa
didto nga in the course of the trial gipakita ang
scars. So ang mubasa didto, Makita kay naa man
didto sa transcript, so dili na kailangan nga pa
markahan nimo. Ok?
IDENTIFIED BY THE WITNESS:
Example kani siya this is a knife, ang
knife dili man mka istorya, dili man siya
makaingon nga “ako ang kutsilyo nga gigamit sa
pagdunggab” Dili man ni mustorya ang kutsilyo.
So unsa man ang imong buhaton. You need a
WIITNESS. Gitawag nag TESTIMONIAL
SPONSOR. Unya kina man ang witness? Ang
tawo nga nakakita ni ana, ang naka recover ana.
So for example, the police nga mi responde sa
alarm, mao to ang imong e presentar sa court. so
for example ignun nimo ing ani:
Attorney: In the evening of January 25, 2013 at or
about 7:00 o’clock in the evening, where were
you at that time, PO1 Juan Dela Cruz?
PO1 Juan Dela Cruz: I was on duty at our Police
Station.
Attorney: While on duty what unusual incident
occurred?
PO1 Juan Dela Cruz: While on duty I received a
report regarding a shooting alarm
Attorney: After receiving a report, what did you
do?
PO1 Juan Dela Cruz: We proceeded to the area as
reported
Attorney: Then upon reaching at the area what
did you see if any?
PO1 Juan Dela Cruz: I saw a dead person.
...“I saw a dead person”. Upon seeing that person
what did you do? “I and my companions
conducted an investigation and asked questions
to the people around who stabbed the victim”.
And what those persons tell you? “They told us
that the person who stabbed the victim run away
just before we arrived”. And what did you do
thereafter? “We made a hot pursuit, we chased
him”. Then in effect of chasing him what
happened? “We caught that person and we
arrested him”. Upon his arrest what, if any, did
you do? “We searched his body and we able to
recover a knife from his pocket which was still
blooded”. Then what did you do to the knife as
well as to the person whom you arrested? “We
brought that person as well as the knife to the
police station”. You mentioned a knife recovered
from that person... now, I have here a knife
please examine this knife and tell the court what
is the relation of this knife to what you made
mentioned that was recovered from the body of
that person arrested. (then iya dayon tanaw-
tanawon ang knife). “This is the one”. Why did
you say that that is the one? “Because I made
markings”. Magbuhat pud na siya ug markings
didto.
Nahinumdom mo sa ato discussion sa Republic
Act No. 9165 nga inig dakop jud imu tong
imbentaryuhon ang narecover, imong picturan,
imu pajud nang markahan... mao sad na sa bisag
unsay makuha, markahan na. Unsa mai i-marka?
Depende, ang ubang pulis ang i-marka kai ang
initial sa accused: ang ngalan sa accused or
initial sa nag-mark. Ok? That is identification by
the witness.
Q: Why is identification important?
A: To show to the court that that is the very knife
that was recovered from the crime scene or from
the accused and that there is no tampering...that
there is no switching.
Dili gani na nimu ma-identified, this can be
objected for being irrelevant. There is no
showing that that is the knife used.
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Q: Nganong Ma-obejekan man?
A: Tungod wa man ka ka-prove na mao na siya
nag nakuha. Mao nang nahinumdom mo sa
drugs, importante nang chain of custody.
Chain of custody: meaning every person who
has come in custody of this object should be
presented in court. Ngano man? To prove that
that is the very the same object recovered from
the crime scene. Labhi na kung drugs.
A: Nganong importante man ang chain of
custody sa drugs?
Q: Bug-at kaayo ug silot. Laliman ka 12 to 20
years. So the court have to be careful that the
dangerous drugs allegedly recovered from the
person of the accused shall be the same drugs
that are presented in court... mao nang gitawag
ug identification.
Unya gawas sa identification... pagkahuman ana
di pagud na mahitabo... okey before that kanus.a
to ang marking? Pre-trial. Now there are exhibits
or there are evidence that might not be marked
during pre-trial. Dunay mga higayon nag naay
mga ebidensiya nga di mamarkahan in pre-
trial...imu ba nang makalimtan or newly
discovered evidence: dri na nimu nadiskobrehan
in the course of trial. So you can mark that in the
course of the trial.
Kaning identification sa object by the
witness kanus-a man ni nimu buhaton?
Obviously you can have the identification of the
evidence in the course of the trial, in the course
of the testimony of a witness. Pero puede na
nimu ma-dispensed with if there is admission
during pre-trial. Pananglitan ako’y prosecutor
unya pre-trial ta, diba puede man ka mapa-
admit. Pananglitan mu-ingon ko, “will the
defendant admit that the police man were able to
recover a fire arm at the crime scene?” Muingon
dayon to, “yes, admitted and that this is the very
the same firearm that was recovered”. Then kung
admitted na then there is no need to present a
witness to identify this kai admitted naman. Pero
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ang problema kai tagsa ra nga defense counsel
na buhat ana. Ngano man? Because they always
give hard time to the prosecutor. Kai kung imu na
admitod then imu nang gi-pakasayon ang
trabaho sa prosecutor then gipakasayon pud
nimu ang pagkonbikto sa imu kliyente.
Pananglitan drugs: imu dipensa sa drugs kai
planted. Natural mu-admit jud ka na diay drugs
pero ang imu dipensa kai dili na iyaha, sa pulis
na.
Identification is done during the trial. When we
say trial automatic na presentation of evidence;
presentation of witnesses.
2. It must offer the evidence.
This is after the presentation of all the witnesses.
Inig mahuman na gani ang presentation of
witnesses: Mr. A, Mr. B, Mr. C, Mr. D., mao ning
imong mga witnesses. Mahuman na gani na sila
usa pa nimu i-offer ang imuhang mga exhibit nga
gipangmarkahan. Bisag napamarkahan na nimu
pero wa na nimu ma-offer, di gihapon na i-
consider sa korte.
Now, kaning identification mao ning gitawag nga
authentication. Meaning to say you are trying
to prove to the court that that is the very same
object that is referred to by the witness.
Q: Unya unsa mai evidentiary value aning object
evidence? Kanang mga pictures, unsa man na
kahibug-aton? Unsa mai gibug-aton ana sa
pagkonbensir nimu sa korte nga tinuod ang imu
mga pinanulti?
A: Matud pa an object is mute, di tawon siya
makaistorya, but speaks eloquently more
than a hundred witnesses. Di tuod siya
makatingog pero ang iyahang gibug-aton ana
mas bug-at pa sa hundred witnesses. Naa kai
pictures: it is most convincing and reliable. In fact
some object evidence are considered
corpus delicti. Ubang object evidence is itself
the body of the crime.
Q: Can a document be considered as object
evidence?
By the way laing pangalan sa object:
tawgon nila ug demonstrative, real,
ang ubang pulis tawgon nang physical.
Pero ang tawag jud ana kai object
evidence.
A: yes, if the purpose is to prove its
existence or its condition.
For example you are filing for damages against a
subdivision (dunay subdivision ditto sa bukid
unya ang imu balay dia dri sa ubos), unya tungod
sa wala man nila i-comply ang environmental
compliance certificate ug mga conditions;
gibahaan ang imu balay. Unya you are filing now
a case for damages against the subdivision. Usa
sa imu proweba nga nadamage jud ka kai ang
imong important documents and imu gipakita
didto sa korte nga kani nangadamage (nabasa).
So, unsa man ni siya, documentary or object?
These documents are use as object evidence
because you are showing to the court the
condition of these documents.
B. DOCUMENTARY EVIDENCE
Sec. 2 . Documentary evidence. —
Documents as evidence consist of writing or
any material containing letters, words,
numbers, figures, symbols or other modes
of written expression offered as proof of
their contents.
Q: What do you mean by documentary
evidence?
A: Documents as evidence consist of writing
or any material containing letters, words,
numbers, figures, symbols or other modes of
written expression offered as proof of their
contents.
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So, any material which consists in writings and
the writings are offered as proof of their
contents.
Q: Can a piece of stone be considered as
documentary evidence?
A: Yes, if the same is offered as proof of its
content. For example we have learned thru our
Religion that 10 Commandments are written on a
tablets or stones. If these tablets are offered in
evidence to prove its content, these tablets are
considered as documentary evidence.
Kanang lapida sa menteyo, is it an object or
documentary? (kanang lapida naay nakasuwat
diha: in loving memory of...from your beloved
wife/ beloved husband, your children and
grandchildren. You have gone but for us...). It
depends; if the tombstone is offered as proof of
its contents then it is considered as document
but if it is offered to prove that it is attached to
the tomb then it is an object.
1. BEST EVIDENCE RULE
Sec. 3 . Original document must be
produced; exceptions. — When the subject
of inquiry is the contents of a document, no
evidence shall be admissible other than the
original document itself, except in the
following cases:
(a)When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b)When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
notice;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(c)When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole; and
(d)When the original is a public record in
the custody of a public officer or is recorded
in a public office.
Now, section 3 is very important. It tells us what
is best evidence rule.
Q: What is Best Evidence Rule?
A: it simply says that when the contents of a
document are the subject of inquiry or subject of
the case then the original of that document must
be presented in court.
For example, in case of damages: alleged breach
contract, diba ang iyo gi-lalisan ana diha kai ang
contents sa dokumenta kai kunahay dunay
violation sa terms and conditions, so in that
situation the original of the contract must be
presented in court not just a machine or
photocopy of that document. The original of that
document must be presented in court because
the content is the subject of inquiry.
Then you might ask why the original must be
presented, why not just a copy? Now, the
purpose is to avoid fraud, aron makasiguro ka...
kai sayon raman nang iphotocopy ang original
unya kahuman i-xeox
taptapan...taptapan...taptapan unya butangan
niyo ug ngalan ang katong xero, diba? So, in
order to avoid fraud or mistake. So you call it
best evidence rule.
Q: Now, gipangutana ni sa bar: why is best
evidence rule is misnomer? Why is it misleading?
A: Diba there three forms of evidence: object,
documentary and testimonial. Mag-ingon gani
kag best evidence makaingon ka nga kani siya
nag pinakanindot; kani siya nag pinakamaayo.
Actually that is misleading. Why? Because best
evidence rule simply provides that the original of
the document must be presented in court, it does
not follow that that is really the best evidence; it
simply requires that the original of the document
must be presented in the court because the
subject of the case is the contents of that
document.
This is otherwise known as Original Writing
Rule.
Sec. 4 . Original of document. —
(a)The original of the document is one the
contents of which are the subject of inquiry.
(b)When a document is in two or more
copies executed at or about the same time,
with identical contents, all such copies are
equally regarded as originals.
(c)When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
transaction, all the entries are likewise
equally regarded as originals.
Q: When can you say that that is the original of
the document?
A: Sec.4 tells us what are original documents.
1. The original of the document is one the
contents of which are the subject of inquiry.
Q: Can a mere photocopy be considered as the
original of the document?
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A: Yes, if the contents of that machine copy is the
subject of inquiry. Pananglitan katong ako gi-
ingon ninyo nga paxerokan ninyo ang original,
pagkahuman niyo paxerox sa original ang katong
Xerox imu gibutangan ug white ink unya
pagkahuman butangan ug white ink imung gi-
super-imposan (imo gi-type-an). Unya mao to ang
imong gipresentar. For, example transcript of
record naa mai hagbong didto, nangaply man ka
ug trabaho...imong gi-paxerokan, gi-erase nimu
ang singko, gi-ilisan nimu ug tres (arong dili
halata). Nangaply ka for example ug trabaho sa
gobyerno later on it was discovered that you
falsified you transcript of records and you are
charged. Wa man to nimu gi-usab ang original,
ang imong giusab ang katong Xerox. So,
question: if you are charged with falsification of
document asa man ang best evidence diha? The
machine copy where you made the alteration
because that is the subject of inquiry. That is the
instance that even a photocopy would be
considered as best evidence
2. When a document is in two or more
copies executed at or about the same time,
with identical contents, all such copies are
equally regarded as originals.
So, for example mamalit ka didto sa tindahan
unya issue-han ka ug resibo unya didto sa resibo
dunay gi-insert nga carbon paper, unya gisuwat
didto unsai imu gipamalit, kung unsai gisuway sa
ibabaw mao nang mureflect sa ilalom. Kanang sa
ilalom original gihapon na siya, those copies are
considered as originals. So, when carbon sheets
are inserted between the sheets of paper such as
receipt are considered as originals. Ang uban ana
tawgon ug duplicate original (well, original
gihapon).
So, kung dunay kasu-kaso dili kinahanglan nga
ipresent ang katong first gyud, puede ra ang
katong sa ilalom because it is considered as
original.
Kanang magpa-xerox ka: pananaglitan dunay
deed of sale, usa ra ka-copya then imu
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
gipaxerokan. Katong xeox, is it considered as
original? NO! Why? Because LETTER B: When a
document is in two or more copies executed at or
about the same time, with identical contents, all
such copies are equally regarded as originals.
Imu man na gipaxerokan dili na maconsidered as
“executed at or about the same time”. Pero
pananglitan blank pa to siya unya ang katong
Xerox maoy gipermahan niyo including the
original then the Xerox copy is considered as
original.
Unya when a piece of document has several
originals, pananglitan sa usa ka deed of sale,
pananglitan ron nipalit ka ug awto, pila man ka-
copy sa imuhang i-produce na nga original?
… nya ang katong xerox maoy gpirmahan ninyo
including the original then the Xerox shall be
consider as original.
When a piece of document has a several
originals, pananglitan sa usa ka deed of sale, pila
mn ka original copy, pila mn ka copies…. Or
pananglitan ron palit ka ug auto pila mn ka
copies imung eproduce ana nga original? For
example there are 4, imuha, sa buyer, sa
abogado, ug sa LTO d ba para sa transfer sa
registration, CR. Now, kung duna moy kaso2,
nawagtang imung copy, hinumdumi nga naa pay
upat kabuok originals, all this originals must be
accounted for before you are allowed to present
a machine copy. All the original copies must be
accounted for, meaning to say, you must have to
prove in court that you exerted diligent efforts to
locate the other originals, but the other originals
could no longer be located. D gani ka
makaprowiba ana nga imung gpangita, for
example wa ka ni.adto sa notary public nga
nagnotario, wa ka mangutana ngadto ninya, wa
ka niadto sa LTO diin nimu gsubmit ang original
then that machine copy that you have will not be
admitted in court. Because a machine copy, or a
secondary copy will only be admissible if all the
originals are lost or cannot be accounted for.
Then another original is when an entry is
repeated in the regular course of business. Kato
sa una si Quezon before he became the
president, he work for a bank, nagtrabaho to cya
sa bangko unya one of his duty in the bank is to
copy the letters that is sent to the client or unsa
gani tong mga letters nga esent didto sa client
iyang copyahon kinamuton niya, iyang e.copy
didto sa duna cyay logbook, iyang copyhan mao
na daun to ilang office files. Now, katong iyang
copy gkan didto sa gpadala sa client, iyang copy
or katong iyang copy is also considered as
original because that is made in the regular
course of business.
Katong mga accountants do you familiar
with ledgers? You know ledgers; the entries from
the ledgers are copied from the journal. Ledgers
are considered as original because they are
copied from the journals. So in other words there
is no need for you to present the journals in order
to prove the contents of the journal, you need not
present the journals themselves, you may just
present the ledgers.
Now, what about if the original can no longer
be accounted? Or can no longer be located? How
are you going to prove the contents? Now,
section 3 tells us the instances wherein
secondary evidence could be presented.
 No.1 ) When the original has been lost or
destroyed, or cannot be produced in
court, without bad faith on the part of the
offeror;
o What do you mean by w/o bad
faith? Meaning they are not
intentionally destroyed so that
the same could not be presented
in court. kinahanglan kung
nadaut mn, kung nawagtang mn
wa tuyo.a
o So for example you have a
quarrel of your wife, and in the
course of your quarrel ingon ka
nganung nadugay mn ka ug uli
krn? Duna mn gud koy client
didto sa opisina akong gi.atiman.
Ah clinte, cge lng ka cliente2,
hangtud nag.away, gipang.gisi
tong imung mga document usa
sa mga gipang.gisi katong deed
of sale. QUESTION: can that be
supposed the other original
copies kai e.ccount mn nimu
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tanan original d b? pananglitan
nangutana ka sa holder sa ubn
original wa pd cla, wa na pd ilaha
pero naa kay machine copy
nahibilin didto sa imung opisina,
pwd ra ba to nimu nga
epresentar? Gigisi mn sa imung
asawa, imu mang asawa nag.gisi.
Will you be allowed to present
the machine copy because all the
originals now could no longer be
presented? The ANSWER is YES,
because the destruction is w/o
bad faith. Wa mn to tuyo.a, pro
kung pananglitan gituyo to nimu
ug gisi aron wa nay original, then
you are in bad faith and therefore
you are not allowed to present
the secondary evidence. TAKE
NOTE ha WITHOUT BAD FAITH.
 No. 2) and another instance is when the
original is in the custody of your
opponent.
o So pananglitan gikiha nimu ang…
ikw buyer and the… ni.file ka ug
damages or cancellation of the
contract kai katong imung pinalit
nga auto d mudagan. So gusto
nimu epa.cancel ang kontrata,
pro ang problema unsa.on nimu
pagprowiba nga there was a
sale? So you have to present the
original, but the problem is ang
imung copy nawagtang, ang
original nga usa tu.a sa seller,
unsa mn buhaton nimu ana? The
seller must be given the chance
to produce the same. You ask the
court to require the seller
produce the original in court
before you will be allowed… if the
seller despite the order of the
court fails to produce the original
then that would be the time that
you can present your machine
copy. Take note ha, the original is
in custody or control of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
adverse party and the latter fails
to produce it after reasonable
notice. He must be informed.
 No 3.) then another when the original
consists of numerous accounts or other
documents which cannot be examined in
court without great loss of time and the
fact sought to be established from them
is only the general result of the whole.
o So for example dghan kau ka ug
mga documento, usa ka sako gyd
unya ang gikinahanglan nimu
ang general result ra, pwd ra
nimu ma state didto sa kanang
murag chart. Now, in that
situation there is no need for you
to present all the originals na
balig usa ka sako nga
dokumento. You can only present
the general result of the whole.
But of course the adverse party
must be given a chance to
examined if the adverse party
wants to examine this numerous
accounts, then he should be
allowed to examine.
 No. 4) then another is when the original
is a public record in the custody of a
public officer or is recorded in a public
office.
o Kung public record gani na you
may present in court just the
certified true copy. Machine copy
but certified, to be faithful
reproduction of the original.
Because usually public records
are not allowed to be brought
outside. Nganung d mn pwd
ipadala ang public record? For
example title sa yuta, unya taga
naay kaso dad.on sa korte. Just
imagine, kung pananglitan ako
ray litigante d mn na pwd nga
ako ra mudala ana, there must be
a personnel from that office.
Dunay personnel anang maong
opisina nga maoy muadto sa
korte. Unya just imagine upat ra
cla kabuok unya dghn mga
dukomento gikinahanglan, wa
nay mabilin sa opisina. And take
note the fact that kanang cgehan
ug dala didto outside sa office,
the risk of being lost is there. So
that is the reason why a public
document… if evidence is a
public document, or the original
is a public document the original
may not presented in court but
merely a machine copy.
So these are the exceptions to the
general rule. (Judge referring to the above
enumeration). These are the exceptions to the
best evidence rule. Unya hinumdumi ang
definition sa best evidence rule. The best
evidence rule will apply if the contents of the
document are the subject of the inquiry.
Now, in one case that reach in the SC, a
case involving a violation of BP 22. You’re familiar
with the violation of BP 22. Now, the accused ask
for the dismissal of the case because the
prosecution failed to produce the original copy of
the check. What was the presented in court was
only a machine copy. And there was no
explanation why is it that the original was not
presented. And so he asks that the case be
dismiss for failure of the prosecution to prove and
to present the original. And he invoked the Best
Evidence Rule. What did the Supreme Court say?
According to the Supreme Court Best Evidence
Rule is only applicable when the contents of the
document are the subject of the inquiry.
According to the Supreme Court in a case
involving the violation of BP 22 the issue there is
whether or not the accused had issued a check.
The issue there is merely the execution of the
existence of the document. And so therefore the
best evidence rule does not apply, and if the best
evidence rule does not apply the original
document need not be presented, a machine
copy will suffice. That’s the ruling of the Supreme
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Court in the case of PEOPLE vs. ARCEO JR. (July
17, 2006).
In another case decided by the SC
involves the violation of anti-drugs act. The
accused was charged for selling of illegal drugs.
Now, in the course of the trial the prosecution
just presented the machine copy of the buy bust
money. For failure of the prosecution to present
the original bill that was used in the buy bust the
accuse move for the dismissal of the case
invoking the best evidence rule. QUESTION: is the
accuse correct? The ANSWER: is NO because best
evidence rule will only apply if the subject of the
inquiry is the contents of the document itself. In
that case the subject of the inquiry is not the
contents of a 500 peso bill or that bill, but the
issue is whether or not the accused sold illegal
drugs. That’s the ruling of the Supreme Court in
the case of Pp. vs. Tandoy 192 SCRA 28.
In other words, in those cases the… in
the case of BP 22 the case there is merely
considered as object evidence and not as a
document so with the bill in that violation of
dangerous drugs act or that money use in the
buy bust.
Section 3. Original document must be
produced; exceptions. — When the subject
of inquiry is the contents of a document, no
evidence shall be admissible other than the
original document itself, except in the
following cases:
(a) When the original has been lost
or destroyed, or cannot be produced
in court, without bad faith on the
part of the offeror;
(b) When the original is in the
custody or under the control of the
party against whom the evidence is
offered, and the latter fails to
produce it after reasonable notice;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(c) When the original consists of
numerous accounts or other
documents which cannot be
examined in court without great loss
of time and the fact sought to be
established from them is only the
general result of the whole; and
(d) When the original is a public
record in the custody of a public
officer or is recorded in a public
office. (2a)
Now, Section 5 we discuss this already.
When the original document is unavailable, I
have discuss this already. — When the original
document has been lost or destroyed, take note
ha original document all the copies must be
presented in court or must be accounted for, or
cannot be produced in court, the offeror, upon
proof of its execution or existence and the cause
of its unavailability without bad faith on his part
may prove its contents… Unsaon mn nimu
pagprove kung wa na ang original, unsaon mn
nimu pagprove sa iyahang contents? First, by a
copy maybe a machine copy. Then another kung
wa ka kapaxerox by a recital of its contents in
some authentic document. Unsay bo.ot ipasabot
aneng by a recital of its contents? Are you
familiar with deed of sale d ba? Kanang sa yuta
unya imung nang erihistro didto sa register of
deeds, kanang iyahang… didto sa luyo sa title sa
iyang yuta ibutang na didto dunay gamay nga
summary didto anang maong dokumento.
E.recite didto kung unsa na cya, Deed of Sale.
Nya kung knsay nag.execute, knsay parties.
Now, kanang naa dha luyo sa title mao nay
example sa recital. Kung d na to available ang
deed of sale, katong nasulat didto sa title pwd 2
e.presentar to prove the content of the document
the deed of sale. Kung pananglitan wlay recital,
wla pd machine copy, wlay by a recital in some
authentic document unsa mn imung laing pa.agi
sa pagprove sa contents anang maong kontrata?
By the testimony of witnesses.
Now, take note these are the 3 kinds of
secondary evidence. COPY, RECITAL OF ITS
CONTENTS IN SOME AUTHENTIC DOCUMENT,
TESTIMONY OF WITNESSES. And you have to
present this in the absence of the original in the
order stated. What do you mean in the order
stated? Kinahanglan nga unahon sa nimu ang
copy, kung naa kai copy d ka kapresent ug
witness, regarding the contents. Kung wa kay
copy then pangitag recital of the contents in
some authentic documents, kung wa gyd then
that would be the time that you have to present
witnesses. Then you might ask why is it that the
testimony of the witness is placed in the last?
Because testimonies of the witnesses are the
most unreliable.
Pero kung dunay balaod nga nagspecify
gyd nga dli kinahanglan efollow kaning maong
order, kaning maong balaod specific provision of
law maoy followhon. Example, sa inyohang wills
and succession, nahibw.an ninyo nga kanang
notarial will mawagtang gani na ang iyang
original now ang iyang existence, ang iyang
contents can be proven by testimonies of the
witnesses not the copy. Kana exception to the
rule nah. So before you are going to allowed to
present the secondary evidence you have to
prove the due execution, the existence of the
original of the document.
Section 5. When original document is
unavailable. — When the original document
has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof
of its execution or existence and the cause
of its unavailability without bad faith on his
part, may prove its contents by a copy, or
by a recital of its contents in some
authentic document, or by the testimony of
witnesses in the order stated. (4a)
Then Section 6, we have discussed this
already. When the original is in the custody of the
adverse party, you give him a chance to produce.
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How are you going to give him a chance? You
may ask the court to issue an order requiring the
adverse party to produce the original. Despite
the courts order if the adverse party fails to
produce in court the original then you can now
present your machine copy.
Section 6. When original document is in
adverse party's custody or control. — If the
document is in the custody or under the
control of adverse party, he must have
reasonable notice to produce it. If after
such notice and after satisfactory proof of
its existence, he fails to produce the
document, secondary evidence may be
presented as in the case of its loss. (5a)
Now, pananglitan imung gpaproduce ang
original, are you bound to… once it is produced
are you bound to make it as an evidence? The
answer is No; you are not obliged to offer it as
evidence. Tan.awa diri, atong gihisgutan ganina
nga ang usa ka object kinahanglan markahan
unya identify, unya offer in evidence. Kung d gani
nah nimu e.offer in evidence the court will not
consider it. The same is true with the
documentary evidence. Documentary evidence
has to be marked, identified and formally offered
in evidence. For example Deed of Sale, it must be
marked during the pre-trial, it must be identified
by a party to that transaction or by an
instrumental witness during the trial, and after
that it must be offered in evidence.
So pananglitan, imu nang napamarkahan,
imu nang gpa.identify but later on nkarealize ka
nga d nlng e.offer are obliged to make an offer
pagkahuman nimu ug marka? DILI. you’re not
obliged, pareho ra pd nah sa situation when you
ask the production of the original which is in the
custody of the adverse party you are not obliged
to introduce it in evidence.
Then another, we have discuss this
Section 7, when an original is in the custody of
the public officer. You need not produced the
original but rather just secure a certified true
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
copy and the rules of court also states that the
original need not be presented in court. Why? In
order to avoid the risk of being lost.
1. January 25, 2013, 4th part
Religious or political belief, interest in the
outcome of the case, or conviction of a
crime unless otherwise provided by law,
shall not be ground for disqualification.
1. Religious belief – Iyang tinuohan raba kay
katong kahoy. Pwede bana siya? Iyang Ginoo kay
kahoy. Pwede bana siya mu testigo?
So religious belief or political belief.
2. Interest in the outcome of the case
3. Conviction of a crime.
For example, a person has already been
convicted of a crime. Can he testify? YES, he can
testify, unless disqualified by law. In criminal
procedure we have learned that in order to be
discharged as a state witness you should not
have been convicted of a crime of moral
turpitude. So if you are an accused and you want
to be discharged because you want yourself to be
a state witness, you want to testify against your
co-accused. But you’re problem is you have been
convicted of a crime of moral turpitude. Then you
are disqualified to be a state witness.
But suppose even if you are disqualified.
“Okay ra nako dili ko ma discharged or ma
acquitted. Pero mu testigos gyud ko if this is the
only way that I can pay off the crime that I
committed.” Pwede ba siya mu testigos? YES, he
can testify but not as a state witness. Because
conviction of a crime will not disqualify a person
from testifying in a case.
Another, hinumdom mo sa inyong wills
and succession. A person who has been
convicted of falsification of a document, perjury
or false testimony cannot be a witness of a
probate of a will.
Okay, so those are some of the instances
wherein conviction of a crime disqualifies a
person from testifying. But general rule,
conviction of a crime will not disqualify a person
from testifying. But to the question of whether or
not the court should give weight to his testimony,
that is another story. Because admissibility is
different from credibility.
In jurisprudence, kung ang isa ka
paryente gani mu testify in favor sa victim.
Example, rape. Unya ang mama mu testigos
pabor sa victim. Ingon dayon ang Supreme Court
na ahhh… katuhuan gyud na siya. Murder victim.
Naay gipatay. Unya ang paryente mu testigos
batok sa accused. Mu ingon dayon ang accused
na dili mana tinuod, tumo tumo rana. Muingon
dayon ang Supreme Court na ahhh.. dili na
katuhuan. Kay kung mag tumo tumo na sila they
could not get justice forever. Just imagine
namatyan gyud na sila. So kay nisulti sila na ikaw
ang nagpatay aw tinuod gyud na. Kana kung
paryente mu testigos pabor sa biktima. Pero
kanang pabor gani sa accused… diba admitted
ramana sa court. Pero muingon ka na, ahhh…
natural ramana ang mama mu laban sa anak. So
ingon ana ang mga decision sa Supreme Court.
Can an accused testify for himself?
YES, he is allowed to testify although he
may refuse. But if he wants to testify for himself
then he can be allowed to testify.
Section 21. Disqualification by reason of mental
incapacity or immaturity. — The following
persons cannot be witnesses:
(a) Those whose mental condition, at the
time of their production for examination,
is such that they are incapable of
intelligently making known their
perception to others;
(b) Children whose mental maturity is
such as to render them incapable of
perceiving the facts respecting which
they are examined and of relating them
truthfully.
These are instances a witness cannot
testify. Section 21 gives us 2 grounds:
1. Mental Incapacity
A person whose mental condition at the
time that he is presented in court for examination
or for his testimony is incapable of intelligently
making known his perception to others cannot
testify.
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Unsa to ang qualifications sa usa ka
witness?
1. Ability to observe or perceive
2. Ability to remember
3. Ability to relay
4. Ability to recognize a duty to tell the
truth
Can a child testify?
Regardless of the age of the child, as
long as a child can perceive, and perceiving, can
make their known perception to others, a child
can testify.
2. Mental Immaturity
However, under letter (b) Children whose
mental maturity is such as to render them
incapable of perceiving the facts respecting
which they are examined and of relating them
truthfully.
For example, sa pagkahitabo ana ang
bata dili pa gani maka perceive, then you will not
be allowed to testify.
Can a blind testify? YES. Kana sila mas
sensitive ilang senses kaysa nato. Identification
by the sound of the voice of the person that the
blind is sufficiently familiar with.
Can deaf-mutes testify? YES. But testimonies
of deaf-mutes requires interpreter.
People vs. Hayag, November 17, 1980
Kani siya nag involve ug rape case. Ang problema
sa victim kay deaf-mute. Unya deaf-mute who is
unschooled. Unya kay unschooled man siya, ang
iyahang sign language kay unconventional.
Meaning katong expert sa signa language dili
makahibalo. Ang makahibalo ra gyud kay iyang
tiya or auntie. So what did the court do? Although
ang court wala sad ni suway ug kuha ug expert.
Due to lack of interpreter, the court just
appointed the aunt of the victim. Eventually, the
accused was convicted. The accused questioned
the decision of the court because the accused
reasoned out that there is no way of the defense
to verify whether or not the identification of the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
aunt is really a faithful interpretation. So the
Supreme Court nullified the decision and
remanded the case to the trial court for further
proceedings. Meaning, for Re-trial because there
were irregularities.
Section 22. Disqualification by reason of
marriage. — During their marriage, neither the
husband nor the wife may testify for or against
the other without the consent of the affected
spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed
by one against the other or the latter's direct
descendants or ascendants.
Under Section 22, the husband or the
wife cannot testify either for or against the other,
during the marriage, without the consent of
the affected spouse, that is the general rule.
You call this the Marital
Disqualification Rule. Meaning the spouse
cannot testify against the other spouse during
their marriage.
But there are exceptions: when the case
involves themselves. “except in a civil case by
one against the other, or in a criminal case
for a crime committed by one against the
other or the latter's direct descendants or
ascendants”
For example, H is accused of murder. The
witness, W, is the only eye witness of the
prosecution. Before W testified in court, nagka
uyab si H and W kay dunay amiga si W na amiga
pud ni H. Nagka textmate2x sila. Gi unsa kaha na
na priso mana si H. Nagka minyo ang duha
before W was presented in court. During the
trial, can the prosecution still present W
against H? Naminyo man silang duha. Unya W is
the only eye witness to the crime.
NO. As long as during marriage, a spouse
cannot testify for or against the other spouse.
You notice that here justice is sacrificed in favor
of family unity.
So the requisites are:
1. There must be a valid marriage.
So common-law spouse, this will not apply.
What about if the marriage is already
annulled? This prohibition will no longer apply.
Take note duna ni siyay paryente. Katong
gi tawag ug Marital Privilege Rule (Sec 24
(a)). Unsa mansad na? That a spouse is
disqualified to testify regarding privilege
communication which he required during
marriage and he or she is disqualified to testify
during and after marriage. But Sec. 24 (a) is
limited only to privilege or confidential
information.
Kaning Marital Disqualification Rule
(Sec 22) this is applicable to all information as
long as the testimony is given during marriage,
the spouse is disqualified from testifying for or
against the other spouse. Meaning one of the
requisites is that….
2. The other spouse must be a party
to the case. If he is not a party, this will not
apply.
3. The case is not against the other.
Meaning, the case is not between themselves.
Because if the case is between themselves, this
rule will not apply.
For example, the wife will file a case of
VAW-C against the husband. The wife can testify
because the case is between themselves.
Suppose the wife filed a case against the
husband for violation of the Child Abuse Act,
because the child of the wife during her first
marriage was abused by the husband. The wife
can testify because this disqualification will not
apply “in a criminal case for a crime
committed by one against the other or the
latter's direct descendants or ascendants”
Alvarez v. Ramirez, October 14, 2005
Husband and wife nag-away. Wife ni
layas sa ilaha, didto nag puyo sa balay sa iyang
igsuon. The wife stayed in the house of her sister.
Ang husband gi attempt ug sunog ang house sa
sister-in-law. So the sister-in-law charged him
with Arson. During the trial, the wife of the
accused was presented to testify against him.
The accused objected.
Question: Should the wife of the accused be
allowed to testify? Read the case to find the
answer.
Case Digest
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ALVAREZ vs. RAMIREZ GR No.143439 October
14, 2005
FACTS:
Respondent Susan Ramirez was the complaining
witness in a criminal case or arson pending
before the RTC. The accused was petitioner
Maximo Alvarez, stranged husband of Esperanza
Alvarez, sister of respondent. On June 21, 1999,
Esperanza Alvarez was called to the witness
stand as the first witness against petitioner, her
husband. Petitioner filed a motion to disqualify
Esperanza from testifying against him pursuant
to Rule 130 of the Revised Rules of Court on
marital disqualification.
Respondent filed an opposition to the motion.
Pending resolution of the motion, the trial court
directed the prosecution to proceed with the
presentation of the other witnesses. On
September 2, 1999, the trial court issued the
questioned Order disqualifying Esperanza Alvarez
from further testifying and deleting her testimony
from the records. The prosecution filed a motion
for reconsideration but was denied in the other
assailed Order dated October 19, 1999. This
prompted respondent to file with the Court of
Appeals a petition for certiorari with application
for preliminary injunction and temporary
restraining order. On May 31, 2000, the Appellate
Court rendered a Decision nullifying and setting
aside the assailed Orders issued by the trial
court. Hence, this petition for review on
certiorari.
ISSUE: Whether or not Esperanza can testify
over the objection of her estranged husband on
the ground of marital privilege.
HELD:
Yes, Esperanza may testify over the objection of
her husband. The disqualification of a witness by
reason of marriage under Sec. 22, Rule 130 of the
Revised Rules of Court has its exceptions as
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
where the marital relations are so strained that
there is no more harmony to be preserved. The
acts of the petitioner stamp out all major aspects
of marital life. On the other hand, the State has
an interest in punishing the guilty and
exonerating the innocent, and must have the
right to offer the testimony of Esperanza over the
objection of her husband.
Section 23. Disqualification by reason of death
or insanity of adverse party. — Parties or
assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor
or administrator or other representative of a
deceased person, or against a person of unsound
mind, upon a claim or demand against the estate
of such deceased person or against such person
of unsound mind, cannot testify as to any matter
of fact occurring before the death of such
deceased person or before such person became
of unsound mind.
This is what is called the Deadman’s
Statute.
For example, X and Y are close friends.
Unya kay close friends lage sila mura na sila ug
igsuon, nag share sila sa ilang problema. One
time, X confided with Y na iyang negosyo hagba
na and he needs money to para sa iyang
negosyo. So ni parayg siya ug ni hong hong ni
Y…………………..
For example X and Y are close friends
unya kay close friends lagi sila mura na silag
manag igsoon murag mag share sila including sa
ilang mga problema and so one time X confided
to Y nga ang iyang negosyo hagba na and he
needs money para sa iyang negosyo and so
neparayg siya ngadto ni Y. Ingun siya Y pwede ko
makahuwam nimu ug 100,000 bayran lang gud
nako bisag within a year. Ingun si Y no problem
what are friends for. Ingun si X unya mupirma
lang ko ug atong kasulatan. Ana si Y unsa man
ka mura man kag dili, migo gud ta, labaw pa ta
sa manag igsoon, way problema, issuehan tka ug
check 100,000. Gidawat ni X pasalamat. But the
problem is before the year ends namatay ma na
si X kay gipusil didto sa Palace of Justice. Y now
has a problem but since X kay duna may
kabugatangan, gi file-an ug kaso ni Y si X against
the estate of X kay patay na man si X. the
problem is at the time that X borrowed from him
the 100,000 wa may lain nakadungog sira ra man
duha, kay intimate moments gud. And wa pud
siyay pinirmahan. Unsaun man niya run pag
prueba didto sa Court nga indeed si X naka utang
niya. Necessarily Y has to testify.
Is the testimony of Y admissible? Mao
may gi hisgutan nato sa Rule 130, admissibility
ma ni. Is the testimony admissible in evidence to
prove that indeed X had obtained a loan from
him during his lifetime? The answer is NO.
Under Sec. 23.
SEC. 23. Disqualification by reason of death
or insanity of adverse party. – Parties or
assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against
an executor or administrator or other
representative of a deceased person, or
against a person of unsound mind, upon a
claim or demand against the estate of such
deceased person or against a person of
unsound mind, cannot testify as to any
matter of fact occurring before the death of
such deceased person or before such
person became of unsound mind.
So sa ato kaso nga gihisgutan dli pwede.
His testimony is inadmissible. Ang pangutana
ana unsaun na man lang to iyang utang nga dili
man siya ka testigos? Then it shall be charged to
experience.
Suppose dili si Y ang ni file. Take note
that the defendant in this case is the estate or
the administrator of the estate or the executor or
any representative of the deceased. So
pananglitan dili si Y ang mukiha kay iyang e
transfer or iyang e assign, si A iyang pa file-on.
Pwede na ba siya ka testigos? The answer is still
NO. Assignor of party to a case or in his behalf a
case is filed cannot testify.
Atong usbon gamay, ni abot ug isa ka
tuig unya na ningil na run si Y ngadto ni X.
Hangtod ang ilang panag amigo nag binuybuyay
na sila. So nagkinihaay sila. Si Y ni file ug kaso
ngadto ni X, file siya ug collection of money.
Unya kay guol man kaau si X hangtod nga gi
atake siya sa heart attack, namatay before the
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trial. Na file na ang kaso sa Korte, question, can
Y testify? NO. As long as during the testimony of
the party and the other party is already dead, he
is disqualified under the DEAD MAN’S STATUTE.
Now, this is applicable not only when the
other party dies but also when the other party
becomes insane, the same rule will apply.
Let us suppose that at the time X
obtained the loan there was a third person, shall
we say common friend nila si W happened to be
there and witnessed when X obtained the loan.
Can W testify in court in favor of Y? YES.
Because this qualification is only against the
party it DOES NOT APPLY TO A MERE WITNESS.
But of course you have to state the legal basis.
Ug imu ra gibutang gibutang didto 5 points unya
isa ra ka witness, example, no because W is a
mere witness, dili na nako tagaan ug point bisag
isa ka point kay there is no legal basis. You may
say no because W is a mere witness under the
rules of court a party or assignor of party is
disqualified, etc. in the given case W is not a
party therefore he cannot testify. Ana ang
pagtubag.
Another, this rule DOES NOT APPLY where
the DEFENDANT INTERPOSED COUNTER-CLAIM.
For example the estate interposed counter-claim,
this rule will not apply because the plaintiff has to
testify on the counterclaim.
For example the executor or
administrator is sued in his personal capacity, not
as a representative. Then this rule will NOT
APPLY because the defendant here in this case
necessarily, the executor or administrator is sued
as a representative of the estate.
Let’s go now to Sec. 24. These are the
different privileged communications.
Duna na moy daghang grounds sa inyo
objections. Duna gani machine copy unya the
contents of the instrument is the subject of
inquiry. What is your objection on that violation?
We object your honor it is a violation of the best
evidence rule. Duna gani witness gi present
unya ang iyang gi contrata patay na, we object
your honor because that is a violation of the dead
man’s statute. Mao na ang ako gi ingun ninyu
nga mga grounds for your objection. Unya take
note d gani ka mu object waived.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
SEC. 24. Disqualification by reason of
privileged communication. – The following
persons cannot testify as to matters
learned in confidence in the following
cases:
(a) The husband or the wife, during or after
the marriage, cannot be examined without
the consent of the other as to any
communication received in confidence by
one from the other during the marriage
except in a civil case by one against the
other, or in a criminal case for a crime
committed by one against the other or the
latter’s direct descendants or ascendants;
We call this marital privilege rule.
Under this rule the spouse is disqualified or
prohibited from testifying without the consent of
the affected spouse pertaining to an information
obtained by him in confidence. You know kanang
mga husband and wife daghan na nag
confidential information.
For example during marriage ang bana
mi ingun nga “kanang day, kahibaw ka before ta
nag minyo nakapatay biya ko, katong nay nakit-
an nga gilabay didto sa may SRP ako may
nagbira ato.” Now, panahon to sa ilang good
times. For example nag away sila, unya ang
ilang panag-away naresulta sa pagbuwag jud,
now the wife now wants to get back with the
husband. So a murder case is filed against the
husband and the basis of the police in filing the
murder case is the testimony of the wife that in
one of their intimate moments the husband
confided to her that he was the author of the
killing. Question, is the testimony of the wife
admissible? NO. If the husband will object.
Pero annulled na man ilang kasal? Even
after marriage as long as the confidential
information is or was obtained during marriage.
To summarize, DURING marriage ang
husband ug ang wife pwede maka invoke sa
marital privilege or marital disqualification. Pero
AFTER marriage has been dissolved only the
marital privilege rule can be invoked. And
remember that marital privilege rule is applicable
only to confidential information.
And of course there are exceptions. (1) In
civil cases wherein the case is between
themselves or; (2) in a criminal case between
themselves or; (3) the latter’s direct ascendants
or descendants.
In this disqualification the spouse could
be a party or not. But in marital disqualification
rule the spouse is necessarily a party to a case.
(b) An attorney cannot, without the consent
of his client, be examined as to any
communication made by the client to him,
or his advice given thereon in the course of,
or with a view to, professional employment,
nor can an attorney’s secretary,
stenographer, or clerk be examined,
without the consent of the client and his
employer, concerning any fact the
knowledge of which has been acquired in
such capacity;
Lawyer-client privilege communication.
Any information or communication relayed by the
client to his lawyer, the latter cannot testify
against his client regarding that communication.
Kinsa na may musalig sa abogado kung e allow
ang abogado nga mu testigos against nya. So
dili gyud na pwede. Without the consent of the
client, the lawyer cannot testify against his client.
In fact if you remember your legal ethics the
lawyer can be disbarred if he would testify
against his own client without the consent of the
latter.
Any communication made by the client to
him or even advice given in the course of
communication or with a view to professional
employment. Unsa ma nang “with a view to
professional employment”? Sa ato pa it could be
that there is no client-lawyer relationship
between them but the person affected may have
narrated to the lawyer because he wanted to
seek the services of the lawyer.
For example, gud nang mga abogado ang
uban labi na ang private practitioner mamili ma
na ug kaso. Mu ana ang abogado, unsa ma ang
kaso nimu. Unya istoryaan dayun ka. Mu ana
dayun ang abogado aw gi charge d i kag rape
unya kaning nag charge nimu kaila ka ani? U,
amo na silingan. Sultie sa tinuod, tinuod gyud
nang gibuhat nimu? “Bitaw torney, tinuod na
torney.” Mu ana dayun ka, “aw pangitag lain kay
lisud na bug-at kay ning kasoha. Pangita lang ug
Page | 374

lain.” Unya d i nikuha ug lain, mu testigos ka
batok niya. Will this rule apply? Yes. Although
there was no lawyer-client relationship between
you and him but you communicated to him with a
view to or purpose of securing his services.
What about the clerk of the lawyer? Now
when it is the clerk who would testify that
requires the consent of the client as well as the
lawyer himself.
Another is physician-patient or doctor-
patient relationship.
(c) A person authorized to practice
medicine, surgery or obstetrics cannot in a
civil case, without the consent of the
patient, be examined as to any advice or
treatment given by him or any information
which he may have acquired in attending
such patient in a professional capacity,
which information was necessary to enable
him to act in that capacity, and which would
blacken the reputation of the patient;
But this is only applicable in a CIVIL
CASE.
For example dunay doctor nagpa sex
transplant ka, so dili na siya makatestigos nga
kana d i imung gi dala dala dli d i na imuha. Gi
operahan d i ka.
EXCEPT when ordered by the court. For
example in a special proceedings for
guardianship, nga masakitun siya then the doctor
nga nag examine atong pasente pwede to siya
maka testify. That is an exception to the rule.
ANOTHER EXCEPTION katong doctor nga
nag autopsy. Katong doctor nga nag autopsy
pwede to maka testigos.
ANOTHER kanang sa INSURANCE. When
you secure an insurance you have to sign a
waiver nga you have to be examined by a doctor.
Unya katong doctor kung dunay kaso atong kay
namakak ka, dunay misrepresentation on your
part.
Again take note this is only applicable in
a civil case. Dili mu apply si criminal. Bisag civil
case, katong atong mga gi mention ganina dli
pud to mu apply.
Another is minister or priest – penitent
communication rule.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(d) A minister or priest cannot, without the issue such damages
consent of the person making the were admitted
confession, be examined as to any  issue left is
confession made to or any advice given by only regarding  Do not require
him in his professional character in the the amount of the
course of discipline enjoined by the church damages attachments of
to which the minister or priest belongs; affidavits and
The priest cannot testify as to matters of  Damages must other
confession or advice given by him to the be liquidated. documents
penitent. Take note that the person must have
engaged the priest in his professional character.  Affidavits and  Court decide
Pero kung misulti siya sa maong information dili other based on the
as a priest but as a friend, then this rule will NOT documents pleadings of
apply. should be the parties
Another is, attached on
(e) A public officer cannot be examined the complaint.
during his term of office or afterwards, as
to communications made to him in official
confidence, when the court finds that the Under Summary Judgment, there is no
public interest would suffer by the genuine issue because the issue left is only
disclosure. regarding the amount of damages and the
Nahinumdum mo sa Criminal Law Article damages must be liquidated – meaning it can be
229 or 230 or even under the Anti-graft and determined already. So, there is no genuine issue
corrupt practices act, a public officer who in view of the admission in the answer of the
acquired confidential information, example defendant. Ang iyang gi deny mao ra gyud ang
military secrets, they are not allowed to divulge amount sa damages. Kung mahitabo na siya, the
this information. They are disqualified to divulge case is good for Summary Judgment. Why? Coz
this information. there is no genuine issue.
January 27, 2013 Unya mangutana mo. Ang gilalisan
REVIEW!!!! nalang nila ang amount sa damages. For
Summary Judgment vs. Judgment on the example in a case of quasi-delict. Nakaligis. Unya
Pleadings mo ingon siya “aw bitaw sad-an ko ato pero daku
Mag-review usa ta. Daghan gihapon ra sad kaayo nang imong gipangayo oi.” So there
ninyo wala gihapon nakasabot sa Summary is no issue as to who is at fault. The defendant
Judgment. You confuse it with Judgment on the admitted it. The issue is only on the damages. So
Pleadings. Be sure to distinguish one from the the case now is good for Summary Judgment.
other. Kadaghan na na nigawas sa BAR. The Unya mangutana mo. Naa pa may issue nahibilin.
examinees are asked to distinguish Summary Unsaon man pag resolve sa court ana? So mao
Judgment from Judgment on the Pleadings. Unya na nga sa Summary Judgment, the movant is
ug dili gihapon mo maka distinguish ana basic na required to attach to his motion depositions,
siya. affidavits and other documents that will support
Unsa may kalainan sa Summary his claim.
Dunay i-attach ninyo nga affidavit. Unsa
Judgment ug sa Judgment on the Pleadings? man nang affidavit? Diba under oath man na?
Summary Judgment Judgment on the ikaw plaintiff so i-attach nimo ang imong affidavit
Pleadings unya ang imohang receipts and based on those
 No genuine  Damages and documents, the court now will rule on the issue
the amount of
Page | 375

left and that is regarding the damages. Mao ra
na.
Unya mo adto ta sa unahan. Pananglitan
gi-admit ang damages ug hasta ang amount.
Unsa pa may affidavit nga imong i-submit ana?
Eh di wala na. The case now is good for Judgment
on the Pleadings. Wala na kay gi admit man
tanan. So the court now will decide the case
based on the pleadings of the parties…based on
the complaint of the plaintiff and based on the
answer of the defendant or any admissions. Unsa
pa may hearingon nimo ana? Ug nganu mo
require pa man ka nga pa submiton nimo ug mga
dokumento or mga resebo? Wala na na kay gi
admit na man.
So can you distinguish now one from the
other? Naa pay daghan ana. You go over (your
book). Pero mao nay basic nga distinction.
So if the issues is only regarding to the
amount of damages, unya kining maong mga
damages liquidated (meaning definite)…pero
mung ang issue mahitungod anang moral
damages aw dili na na coz that requires now
testimony.
Petition for Certiorari vs. Petition for
Review on Certiorari.
Unya lain sad nga inyong kalibgan.
Daghan ninyo ang mag libog. Petition for
Certiorari ug Petition for Review on Certiorari.
Daku kaayo ko ug time gi-gahin ana. Be sure to
distinguish one from the other.
Petition for Review on Certiorari is a
mode of review. It is otherwise known as “Appeal
by Certiorari and what is raised is only question
of law.
Petition for Certiorari on the other hand is
not a mode of review. What is raised is without or
in excess of its jurisdiction, or with grave abuse
of discretion amounting to lack or excess of
jurisdiction. Daghan pa na ug mga distinction.
Nay distinctions diha sa libre ni Regalado naa sa
Rule 45 sa annotation niya. Daghan kaayo. Pero
mao nay basic…kadtong akong gi sulti basic to
siya.
Petition for Review on Certiorari is a
mode of review if you question the decision of
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the CA, or Sandigan bayan, or Court of Tax Petition for Review on Certiorari adto sa
SC while ang Petition of Review adto sa CA. That
Appeals, or even that of the RTC on pure is also a mode of appeal kanang sa decisions
question of law. rendered by quasi-judicial bodies unya imong e-
Petition for Review Petition for raise didto sa CA Petition for Review under Rules
on Certiorari Certiorari 43. Ayaw mo ug cite2x ug rules or section nga dili
 a mode of  Not a mode of mo segurado.
review review Unya kana siya….ang mode of appeal
niya dili notice of appeal ha! Unsa may mode of
 “Appeal by  Grounds: appeal ana? Ordinary appeal…gitawag kana ug
Certiorari” without or in ordinary appeal.
excess of its How do you perfect it?
 Questions of jurisdiction, or Ordinary appeal mao nay gamiton gikan
Law is raised with grave sa MTC adto sa RTC. Ang tawag ana ordinary
abuse of appeal by mere filing of notice of appeal.
discretion Where are you going to file your notice of
amounting to appeal?
lack or excess With the court that renders the decision.
of jurisdiction. Masteron na ninyo ang notice of appeal. Unya
mao pod na siyay mode of appeal/review over
the decision rendered by the RTC in its exercise
Petition for Review vs. Petition for Review of its original jurisdiction and you want to appeal
on Certiorari it in the CA. original jurisdiction….notice of
Then lain pa ninyong kalibgan ang appeal…adto ka mo file didto sa RTC.
So the mode of appeal is ordinary appeal.
Petion for Review ug Petition for Review on Unya pangutana: how are you going to perfect it?
Certiorari. Answer: you are going to file a notice of appeal
Petition for Review Petition for Review with the Trial Court. Aside from that, you are
on Certiorari going to furnish you notice of appeal to the
 RTC (appellate  To the SC adverse party. Dili pa na kompleto. Kulang pa
jurisdiction) to na…dili pa na perfect. You pay the required
the CA docket fees. Mao na siyay tubag sa how are you
going to perfect an appeal by ordinary appeal.
 Quasi-judicial Unya sa Petition for Review on Certiorari,
bodies to CA unsaon man na nimo pag perfect sa imong
under Rule 43 appeal? You file your verified petition with the SC.
Furnish the adverse party the copy of your
petition then payment of the required docket
Unsa man nang Petition for Review? Sa fees. That is how you are going to perfect your
CA na. Sa CA mao nay mode of review kung ang appeal.
RTC ni render ug decision in the exercise of its Unya ang uban ninyo naglibog sa period
appellate jurisdiction. So pananglitan adunay of appeal. Automatic gyud na…walay exception
decision diri sa MTC unya imong giapilar diri sa 15 days. Ordinary appeal -15 days, Petition for
RTC unya wala gihapon ka makontento gusto pa Review – 15 days, Petition for Review on
nimo dalhon sa taas pa. mo adto ka sa CA unya Certiorari – 15 days. Although sa Petition for
unsa may mode of appeal ana? Dili na man ka Review ug sa Petition for Review on Certiorari
maka file ug notive of appeal. You file a petition pwede ka makapangayo ug extension. Pwede ka
maka file ug motion, bayaran nimo ang docket
for review
Page | 376

fees unya mo file ka ug Motion for Extension to
file petition unya usually 30 days. Pero ang kuan
jud ana 15 days.
Dili na ninyo kalimtan. Daghan raba
kaayo nang mga period2x within which you are
going to file ana daghan kaayo na last year.
Kadtong BAR Exam (2012) daghan kaayo. You try
to read. Makita man seguro na sa internet ang
mga questions. Tan-awa. Daghan kaayo. Ayaw
jud mo ug kumpyansa ana labi na mga ing-ana.
Within what time? Within what period? Daghan
kaayo.
On Writ of Execution
Unya naa pay lain. Daghan pod nasayop
sa Writ of Execution. Writ of Execution especially
kanang sa Ejectment. If the defendant refuses to
vacate despite the issuance of the Writ of
Execution, he cannot be cited for indirect
contempt. What’s the reason of the SC?
Nakabasa nab a mo ug Writ of Execution? Wala
pa. Kanang Writ of Execution is an order directed
to the sheriff or addressed to the sheriff.
Considering the order is directed to the sheriff, if
the defendant will not obey then the defendant
cannot be cited for indirect contempt because
the order was directed to the sheriff.
Sa atong examination question, ang
problem ato dihay decision sa ejectment. Unya
kay lagi final na and executor, upon motion ni
issue ug writ of Execution ang court. Pag adto
didto sa sheriff dili mo pahawa. Kay wala man mo
pahawa ang defendant, ni file dayon ang plaintiff
ug motion to cite the defendant for indirect
contempt. If you were the judge, will you grant
the motion? NO.
Now, there are two reasons for NOT
GRANTING the motion.
First, the manner of filling. Kanang
indirect contempt, duha ra gyud ka paagi na nga
ma file.
1. Moto proprio sa court through the
issuance of a Show Cause Order.
2. Separate Petition for Indirect Contempt.
Kung parties gani mo file ug indirect
contempt kay gusto niyang ipa indirect
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
contempt, that can be initiated through a
separate case by filing a separate petition for
indirect contempt. Dili ka pwede mo file ug
motion to cite indirect contempt. You have to file
a Petition. Unya the etition shall comply with all
the requirements of an initiatory pleading –
dunay certification against non forum shopping,
verification, payment of docket fees. Separate
jud siya. Unya e-raffle. Unya ug gusto ka maipon
sa ejectment nga main case, then you ask for
consolidation. The point is, you cannot file it
through a motion or you cannot initiate it through
a motion. That’s one ground.
Second, the Writ of Execution is directed
to the sheriff and not to the defendant. Mao nay
second ground.
Orders that cannot be a subject of appeal
Another, mastera pod na ninyo…markahi
na ug star kanag Section 1 Rule 41. Unsa man
nang naa sa Sec. 1 rule 41? Those are the orders
that cannot be a subject of appeal.
Among those which cannot be subject of
appeal is interlocutory order. So pangutan-on
gani mo kung sakto ba iyang gibuhat? Tan-awa
usa kung interlocutory ba. So this time, you
should be able to distinguish interlocutory order
from final order.
Unsa pa? kanang dismissal without
prejudice. Unsa man nang dismissal without
prejudice? Meaning you can re-file the case. Kung
dismissal without prejudice gani, dili pod na siya
ma subject ug appeal. So dismissal without
prejudice for example dismissal for lack of
jurisdiction. If an action is dismissed because of
lack of jurisdiction then what are you going to do
is to re-file it.
Pero kung mi-disagree ka sa court kay mo
insist jud ka nga duna siyay jurisdiction then unsa
may remedy nimo? Dili man apil kay ni ingon
man ang rules nga that cannot be a subject of
appeal. Now, unsa man say sulti sa lain nga
provision sa rules if there is no appeal aw petition
for certiorari or even if there is an appeal but the
appeal cannot be considered as speedy.
Kinahanglan ha nga makat-on jud mo ug
analyze. Ayaw jud nang mubo rakaayo ang
analyses. For example, amendment as a matter
of right. Pag tan-aw nga ah “wala pay responsive
pleading pwede ni…” idiscuss gyun nako to nga
adunay exception ana. Usahay nag examiner mo
adto man na sa exception. Lagi general rule,
pwede na e-admit nimo as a matter of right if
there is no responsive pleading. Pero kung ang
complaint gani wala jud cause of action because
for example the loan is not yet due unsa may
cause of action nimo ana nga wala pa man ma
due? Aw dili na nimo pwede nga e-amend in
order to…(wala niya gi tiwas).
Lack of Cause of action vs. Jurisdiction
Naa pa diay lain. Lahi nang lack of cause
of action ug jurisdiction oi! Nay uban ang butang
didto, “there is no cause of action and the
plaintiff cannot amend in order to give
jurisdiction to the court.” Lahi ra ang lack of
cause of action sa jurisdiction. Lahi jud kaayo.
Gani sa grounds for motion to dismiss lahi man
sa sila.
Ok? Timan-I tong atong mga questions
kay basin mabalik to sa quiz nati, or sa mid term
nato, sa quiz before mock bar, or mabalik sa
mock bar, OR mabalik sa BAR  kadaghan na na.
kadaghna na ko kadungog ug mga feedback sa
mga bar examinees. Ingon nga, “Sir, ang sagad
ni gawas nga questions sa bar kadtong mga
gipang questions nato sa atong exams.” So take
note ana.
CONTINUATION ON EVIDENCE:
RULE 130
2. Testimonial Privilege
Section 25. Parental and filial privilege. —
No person may be compelled to testify
against his parents, other direct
ascendants, children or other direct
descendants.
We have learned last meeting that during
marriage, the husband or the wife cannot testify
for or against the other without the consent of
the other.
Unya lahi na sad ni…dili ninyo kalimtan
ang distinctions. Niadtong ni aging bar daghan
kunong ni gawas nga mga distinctions. Mao nang
malmalon mo daan karon aron dili na mo
Page | 377
 REMEDIAL LAW REVIEW 2012 TRANSCRIPTION

makuryentehan sa first questions sa distinctions. 2. TESTIMONIAL PRIVILEGE admission you made in another court is
Like for example, distinguish Marital called extra judicial admission. Same
Disqualification from Marital Privilege (ako na na SEC. 25. Parental and filial privilege.—No
person may be compelled to testify against rangawalaka mi admit inside the court.
gihatag last meeting. Kapoy na balik.)
his parents, other direct ascendants, That admission can be admissible against
Under Section 25, a descendant or
ascendant cannot be compelled to testify against children or other direct descendants. him.
the other. So a son cannot be compelled to testify
against his parent and a parent cannot be An admission is the act, declaration or omission.
Then under Sec 25 the descendant or a parent Omission such as silence, ex ikaw ray
compelled to testify against his own son or ascendant cannot be compelled to testify against
daughter (diba descendant man na siya?) akusadoimunggiadtoangkihanti and
the other. So a son cannot be compelled to testify giofferannmungabayaran. That act is considered
Take note of the word COMPEL. So if the against his son or vice versa. Take note the word
son or daughter really wants to testify against as an admission. Declaration ex bombing sa bar
compel. If the son or daughter is willing to testify usasa evidence against the bomber is his extra
his/her father, then he/she can be allowed to against his father he is allowed to testify. There is
testify. judicial admission, 2 weeks after the bombing
a lil conflict on Sec 25 and Art 15 of FC. Under Art katong bomber judug yang barakda nag inum in
Unya nay gamay conflict ang Section 215 there is no exception meaning in all cases a the course of their drinking spree
25, Rule 130 ug ang Article 215, Family Code. child cannot testify against his parents or naghambogxangaxaynaglabaysa bomb. Naa may
Section 25, Rule Article 215, Family grandparents, vice versa. Under Art 215, there is mipyaet. Miadtoxasa police. Mao to xa admission.
130 Code an exception given except that testimony is Declaration as an admission cannot be
 Under Sec. 25,  There is an indispensable in the crime against one parent to considered as hearsay. How can u prove
there is NO EXCEPTION the other. If the testimony of the descendant is admission if the person making the declaration
EXCEPTION. given by that indispensable, his testimony is required to will deny? Ex naa crime
Meaning, in all law. convict who is that parent of that child. What will kagihimuunyaakonggisultininyounyaakonggianko
cases a child prevail? Take note that Rules of Court is only a n, unyaakonggi deny napud, is the declaration
procedural law while the Family Code is made by the other hearsay? No it’s not hearsay.
cannot testify  “except when substantive law. The provision of the FC will
against his You heard it from ur own ears It’s not hearsay. To
such testimony prevail.
own parents prove admission/ testimony is not hearsay.
is indispensable SEC. 26. Admissions of a party.—The act,
or Omission for ex you just kept silent that can be
in a crime declaration or omission of a party as to a
grandparents considered as admission. For ex a case before
against the relevant fact may be given in evidence
and vise police investigator after the suspect was arrested
descendant or against him.
versa. (rape) in front of the alleged victim the suspect
one parent There are 2 kinds of admission: denies having rape the victim and he said that it
against the  Judicial admission is an admission made was done with the consent of the victim. The
other.
by the party on the same case. For ex victim did not make any protest saying it’s not
imbesnga answer that would admit the true. The SC said that the silence made by the
So, if the testimony of the descendant is
allegation. That is considered as a judicial party complainant is considered as an implied
indispensable – meaning his testimony is
admission. During pre- trial, the plaintiff admission. Silence may be given evidence
required to convict accused who is the parent of
against him. It is applicable to any party
that child then he can be compelled to testify. made a proposal to the defendant/
(referring to ADO). TAKE NOTE THAT admission to
Unya mangutana mo: unsa may mo accused and accused admitted the be admissible here must be against his interest.
prevail ana? Remember that the Rules of Court is proposal, the admission made by Not self- serving. Ex u are charged of murder and
only a procedural law while the Family code is a
accused during pre- trial is considered filed a case. Nagtalkmosaimung friend, nag ask
substantive law. So the provision of the Family
judicial admission. During trial a party nmu, tinuodbajud tong gifilengabatoknmu?
Code shall prevail.
made an admission. Accused: nah
Distinguish marital disqualification from Marital
 Extra judicial admission is an admission saksiangGinoobaiwalajudkoanagabuhat.
Privilege
Can that admission be admissible in favor of him?
made by a party outside the court or
No, pagpaborganenmu di judpwede.Pero against
even inside the court but in another case. mu pwede.
Duhakakaso, usadiriugdidto. The
Page | 378

As far as admission is considered, remember
custodial investigation (political law) if admission
is made during custodial investigation the
Miranda doctrine must be complied with (before
investigation he must be informed of his rights:
right to counsel, right to remain silent) and his
admissions must be reduced in writing and
signed by the accused. By the way unsay
kalainansa suspect ug accused? Suspect naa pa
sa police level. Filannakagkasosa court accused.
Admission is the highest form of evidence. No
person on his right mind and sense who would
make an admission unless it is true.
SEC. 27. Offer of compromise not
admissible.—In civil cases, an offer of
compromise is not an admission of any
liability, and is not admissible in evidence
against the offeror.
In criminal cases, except those
involving quasi-offenses (criminal
negligence) or those allowed by law to be
compromised, an offer of compromise by
the accused may be received in evidence as
an implied admission of guilt.
A plea of guilty later withdrawn, or an
unaccepted offer of a plea of guilty to a
lesser offense, is not admissible in evidence
against the accused who made the plea or
offer.
An offer to pay or the payment of
medical, hospital or other expenses
occasioned by an injury is not admissible in
evidence as proof of civil or criminal
liability for the injury.
You remember that during pre- trial of the case
compromise is considered. As far as civil cases is
not considered as an admission. But if criminal
case gale, because if you offer to settle that can
be considered as an implied admission of guilt.
Ex in rape case, moingunkangagwapo man sad
kobati man kagnawongpakaslannlngtka. That
offer is considered as an implied admission of
gulit.
I am sorry… implied admission of guilt in criminal
cases. However there are exceptions.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
GR: Offer for compromise in criminal cases is an
implied admission of guilt.
EXC:
Criminal Negligence, reckless imprudence in
Art 35. While you were driving your car you ran
into a pedestrian because you were drunk or
texting while driving. You offered to pay medical
expenses that cannot be considered as an
admission of guilt.
Another improvident plea of guilty if the
accused enters a plea of guilt without knowing he
can withdraw it before the entry becomes final. C
Plea bargaining, for ex the accused offered to
plea bargain and he offered to plead guilty to
homicide but private complainant refused, is the
act of accused can be considered an implied
admission of guilt? No, it cannot be considered as
an implied admission of guilt.
When compromise is allowed by
law( criminal cases), ex in taxation, kanang di
mobayadugbuwispwedemakig compromise sa
BIR sa tax liabilities. Paying is not considered as
an implied admission bec it is allowed by NIRC.
We also discussed the
KatarungangPambaranggay, there are
criminal cases wherei prior to filing in court they
are referred to barangay to compromise. If you
offer there a compromise cannot be considered
as implied admission of guilt.
Another is what we called mediatable cases,
such as Philippine Relation Center, theft of small
value, pwedena i- mediate regarding the civil
aspect, estafa where you offered
ngaimunalngbayran. Pwedena but not admissible
as an admission of guilt. Viol of BP22 you issued
bouncing check and sapagfileugkaso against nmu
u offered to pay check. That cannot be
considered as an implied admission of guilt.
Jurisprudence: Accused offered to compromise.
If the purpose is merely to avoid the
inconvenience of imprisonment to buy* peace
(exception rather than the rule ni ha) then that
cannot be considered as an exception.
 PP v Galvez March 30, 07
 PP v Gudoy Dec 6, 95
SEC. 28. Admission by third party.—The
rights of a party cannot be prejudiced by an
act, declaration, or omission of another,
except as hereinafter provided.
This is what we called RES INTER ALIUS ACTA.
What is RIAC?
Rights of the party cannot be prejudiced by act,
declaration or omission (ADO) of another except
as herein provided.
Sec. 29- Admission by a co-partner or agent
Requisites:
1. The partnership or agency must be shown by
evidence other than the admission of the partner
[or agent]
2. That the declaration or act must be within the
scope of partnership, agency or joint interest
3. It must be made during the existence of
agency or partnership.
For example during pre-trial or sa trial, ang mag-
sigeg tabi ana ang counsel man, di ba? Ang
motingog didto sa korte ang counsel man. Unya
pananglitan ron ang counsel makahimo ug
admission, is that admission binding upon the
client? YES. Admission by the counsel is
binding upon the client. By reason of
Section 29.
Nahinumdum mo adtong Estrada, the case of
Estrada vs. Desierto? Kadtong pagbiya ni Estrada
didto sa Malacanang. Biya siya’s Malacanang,
nagsakay siya’g speedboat agi diha sa Pasig
River. Pasig River ba ng kilid sa Malacanang,
Pasig ba na? Pasig or Pasil? Unya sa diha nga
migawas na si Estrada gikan sa Malacanang, wa
man gud to siya pud magsirado didto’s iyang
opisina, migawas man. Misakay’g speedboat. Aw
pag gawas niya, nanumpa dayon si Arroyo pagka-
presidente kay kunohay mi-resign siya. Unya
pagkahuman, taud-taod, gi-question man ng
Estrada. Ingong Estrada, “wa ko mu-resign oi!”
Iyang gi-question ang legitimacy sa presidency ni
Arroyo. Now, that question of course reached the
Supreme Court. Unya usa sa mga ebidensya nga
gi-basehan why is it that the Supreme Court
ruled against Estrada is the so-called “the Angara
Diary”. You know Angara at the time of Estrada
was the Executive Secretary. You know kanang
Executive Secretary ka, you’re the little
president. So, Angara diary. Unsa ma’y nasuwat
didto sa diary ni Angara? Gisuwat man sad diay
didto ni Estrada nga sa dayon ng larga/lakaw ni
Page | 379

Estrada, gisuwat didto’s iyang diary nga ang
gipanulti ni Estrada. Matud pa, usa sa iyang
gisuwat didto, iyang nadunggan ni Estrada gi
ingon nga “Pagod na pagod ako!” Maypa kung
dia to diri sa ato kay kung pagod na balihon ra
man. Tua man sa Manila, layo ra man kaayo. So
katong iyang statement nga nga kapoy na kuno
siya, that was one indication that he had really
the intention to resign.
Nya mangutana ka, si Angara ma’y nagsuwat
ato, di man si Estrada? Aw naa dayon ang
Section 29, gi apply dayon ang Section 29.
Because Angara is considered as an AGENT of
Estrada. You read that case of Estrada vs.
Desierto 356 SCRA 108.
Then, another instance is admission by
conspirator.
Sec. 30- Admission by conspirator. The act or
admission of a conspirator relating to the
conspiracy and and during its existence, may be
given in evidence against the co-conspirator
after the conspiracy is shown by evidence other
than such act or declaration.
Pareho ra pud ni, the same story with conspiracy.
An admission by a conspirator is admissible in
evidence against his co-conspirator provided
that:
1. there should be evidence presented to
establish conspiracy other than the
admission of the conspirator
2. and that the delaration is made during
the existence of the conspiracy
3. and that the admission relates to the
conpiracy itself.
Okay we will have an illustration aron masabtan
ninyo.
For example, X, Y and Z. They conspired to kill
Mr. A. Nagsabot sila karon. Diha sud sa kwarto
nagsabot nga patyon nila si Mr. A. Sabot pa man,
so the killing would be carried out on a future
date. So for example karun, Sunday, so ingun
siya ugma atong atangan. Ugma gyud sa hearing
atong adtuon didto.
Ok now, si Mr. Z pagka gabi-i na miadto ni,
before Monday/before the killing, after the
planning but before the killing, si Z miadto didto
ni W. Ingun siya “kining Mr. W, bai kining
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pahulma ko adtong imung pinuti bi. Nganu man
oi, naa kai kontra? Nagsabot man gud mi ni X
ug ni Y nga patyon namu si A ugma. Ingon si W,
bai amigo man jud ta noh, kanang hangyo lang
ug unsang butanga, ayaw lang jud na kay di ko
gusto maapil sa kanang kaso-kaso.” Wa lang pud
mi-insist si Z. Then later on, napatay gyud si A.
Later on, a case was filed against the three (3).
Gi file’lan sila ug kaso nga murder. One of the
witnesses of the policemen or of the prosecution
is W. Unsa ma’y isulti ni W? Nganung apil man si
W nga wa man siya kakita sa pagpatay? Wa man
siya nakakita, unsa man diay isulti ni W beh?
Regarding sa declaration ni Z nga niadto si Z kay
ilang patyon, nagplano sila nga mupatay ni A.
That declaration of Z is considered an
admission of his guilt, of his involvement in
the killing.
Now, remember that when Z told W regarding the
killing, he also mentioned the name(s) of X and Y
as his co-conspirators. So, the question now is
“Is this declaration of Z to W binding upon X and
Y? Mahimo ba ni siyang admitihon? Ok no
problem, kaning admission ni Z binding jud ni.
So, kaning testimony ni W, this is admissible
against Z. That he went to W and told W that
they are going to kill Mr. A.
So, is the declaration of Z to W binding against X
and Y? Now, the answer is YES. Why? Nganu
man nga ma binding man nga ang general rule
ang admission sa usa ka party dili man mu-bound
against his co-conspirators or agains other
persons? Now, in this case, that is binding
because [number one] the delaration was made
during the existence of the conspiracy.
O balik na sad ta ngadto sa question, kanus-a
man diay mutapos ang conspiracy? Conspiracy
ends when a conspirator leaves the conspiracy.
So, conspiracy ends as to him. So, pananglitan
nagsabot ta ron nga atong patyon, unya padung
ta didto nibiya ko, aw as far as I’m concerned,
conspiracy ends when I left.
Here, wa man siya mu left. Kanus-a man sad diay
mu end ang conspiracy, wa man siya mu left, wa
man siya mubiya? Now, kung wa siya mubiya
then conpiracy ends upon indictment, upon the
filing of a case. It could be also, conspiracy ends
upon the arrest of the conspirators. Then, or
upon confession.
And also upon showing, another requisite sa
admission, that the declaration is made during
the existence of the conspiracy, and the
conspiracy is shown by evidence other than the
declaration itself and that the admission relates
to the conspiracy itself.
Pero pananglitan, so tan-awa ha. Existing pa ang
conspiracy sa pag-angkon ni Z ngadto ni W. So,
admissible. Pero ibutang nato wala siya muadto
ni W. Gipatay nila si A. Unya diri na misulti si Z sa
dihang nadakpan siya sa mga pulis. Diri na siya
nipya-it, nga “ako bitaw’ng mga kauban sila si X
ug si Y.” Now, kanang admission ni Z, dili na na
siya binding against his co-conspirators because
conspiracy ends upon the arrest. So kung
mobuhat na siya’g admission, that is only binding
against himself but not against his co-
conspirators.
Ok, another point nga inyuhang hibaw-an, inyong
hinumduman. Unsa to, usbon nato, unsa tong
mga requisites para ang admission sa cospirator
mahimung admissible in evidence against his co-
conspirators? (1) there must be evidence other
than the declaration of the conspirator; (2) and
that the delaration is made during the existence
of the conspiracy; (3) and that the declaration
relates to the conspiracy itself.
Now, these requisites, these are for confession
made outside the court. These are the requisites
for admission made oustide the court or extra-
judicial confession.
When a co-conspirator would testify in court
narrating his participation and that of his co-
conspirators, the same would be admissible in
evidence already. Ok, atong nahibaw-an kaniha
nga kari pagdakop, nibuhat ug admission si Z
[dili?] didto sa pulis, aw binding ra na against
niya. That would be binding against him. Unya
kay pulis man ni, aw hinumdumi ang requisites
sa custodial investigation pud. So, against niya
ra.
Pananglitan karun kung na file-lan na’g kaso unya
himuon siyang state witness, unya mu narrate
siya sa iyang participation at the same time the
participation of his co-accused. Would his
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testimony be admissible in evidence against his
co-accused?
YES. Unya kay wa na ma’y conspiracy? Wala
man ma follow ning mga requisites, wala na man
kay wala na man ang conspiracy, mi end na man.
Aw lahi na sad ang rule ana, lahi na sad. Dili
nasad mu apply ri. Ang mu apply, jurisprudence
na sad. Nag-ingon ang Supreme Court nga a
testimony given by a conspirator given during
the trial is admissible in evidence against his co-
accused. Then the reason why, unsa ma’y
rationale ana? The reason is the other co-
accused, his co-conspirators are given the
chance to CROSS-EXAMINE him. Dili pareho
diri sa extra-judicial admission nga wa’y cross
examination. So mao to nga binding ra gyud
niya. “Ni-angkon man ka, imuha ra na.” Pero
kung mu desidir gyud siya nga iyahang
sustinihan katong iyang mga gipangsulti ngadto
sa pulis, then this time it would be bindng against
his co-conspirators. [Do you get the point?]
Mao na siya, labi na kung himuon siya nga “state
witness”. Unsa’y katarungan sa Supreme Court
nganu man nga admissible in evidence man na
siya? Because the other co-accused, his co
conspirators are now given the chance to cross-
examine. His testimony would not anymore be
considered hearsay. His admission would not
anymore be considered as within the so-called
res inter alios acta.
Sec. 31. Admission by privies- Where one
derives title to property from another, the act,
declaration, or omission of the latter, while
holding the title, in relation to the property, is
evidence against the former.
Let’s go now to Sec. 31. Another exception to the
res inter alios acta is admission by privies.
Now, this relates to or has something to do with
ownership of property.
So for example, si S, baligya siya’g yuta ngadto
ni B. Installment. Unya kay amigo man sila, way
papelis. Unya, sa dihang hapit na mahuman ug
bayad, guol na kaayo si S, iya dayong gisulti-an
ang iyang amigo nga ginganla’g si W. Naa man
siya’y laing amigo. Ingun si S, “kabalo ka Mr. W,
bai kabalo ka bai, kining”, ingun si W “wa ko
kahibawo!” kining pa-it man kaayo ron akong
kinabuhi, akong kabtangan hapit na mahurot,
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naa koi yuta dihaa duol sa Colon, hapit na na siya
mahurot ug bayad ni B.” Ingun si W, ”aw ing-ana
man ng kinabuhi usahay. Usahay hunasan,
usahay ta-ob. Aw inom lang na, ako la’y bangka
nimu.” Now later on, nahibaw-an nato nga ang
kaning yutaa, the same lot, gibaligya ug lain ni S
kay nakat-on man siya sa elementary nga I have
two hands. Gibaligya ni niya ngadto ni C. Unya si
C, sigurista pud si C, iyaha dayon ning gipa-koral.
Unya dayon lagi, occupy. Pagkahibawo ni B, siya
ma’y first buyer, although wala siya mo-occupy.
Aw iyahang gi file’lan dayon ug kaso si C. There is
now a case between B and C over this lot. There
is now a question as to who is the owner. Now,
ang problema ron kung pananglitan during the
trial, i-presentar ni B si W to prove nga una
siya’ng nakapalit. Iyang gi-presentar si W
regarding the declaration of S that the lot has
been sold to B by installment. Would the
declaration of S be binding against C?
Now, mao na siya sa Section 31. The declaration
of the latter, meaning the previous owner, while
holding the title, in relation to the property is
admissible in evidence against the former.
Meaning, the declaration of S is binding against
C.
Sec. 32. Admission by silence- An act or
declaration made in the presence and within the
hearing or observation of a party who does or
says nothing when the act or declaration is such
as naturally to call for action or comment if not
true, and when proper and possible for him to do
so, may be given in evidence against him.
Let’s go now to Sec. 32, admission by silence.
Ako na ning gi discuss ganiha.
Kini gong Pilipino, wa ta’y dag-anan. Kung
sawayon gani ka unya mu reklamo ka, ingnon ka
“ah tinuod tingali, nganung masuko man?
nganung nahangan man?” Kung di pud ka mu
reklamo, “tinuod tingali, nganung di man
motingog beh? Nganung di man mu ingon nga di
na tinuod, aw tinuod kay silence means yes.”
So unsa man gyu’y buhaton nimu ana kung
duna’y pasangil nimu? Unsa man gyu’y buhaton
nimu ana? Are you going to protest, raise your
objection or just keep silent?
Section 32 tells us what to do. An act or
declaration made in the presence and within the
hearing or observation of a party who does or
says nothing when the act or declaration is such
as naturally to call for action or comment if not
true, and when proper and possible for him to do
so, may be given in evidence against him.
What do you mean by “may be given in evidence
against him”? Meaning, can be admissible as
evidence against him.
So mao tong kaso ganiha. Diha’y complainant. Mi
reklamo siya didto sa pulis kay gi rape siya.
Matud pa, bag-o pa gyud siya gi rape. Gidakop
dayon sa pulis ang suspect. Didto sa police
station, atubangan jud sa complainant ug sa
police investigator, mi ingon ang suspect “dili na
tinuod, Senyor Pulis! Kay amoang sinabutan
kadtong among gibuhat. That was a consensual
sexual intercourse. Ug kaming duha nalipay jud.
Satisfied. Amu mang gituman jud ang RH Bill,
ang RH Law nga “satisfying sexual intercourse”.
Ang problema kay ang victim wa jud siya
motingog, nagpakahilom lang. Now, eventually
the case was file in court. The court convicted the
accused and the case reached the Supreme
Court. And one of the errors pointed to by the
accused kadtong pagpakahilom sa victim didto
sa pulis. Wa man sad na gi rebut. Meaning wala
pud na niya gi deny nga nagpakahilom lang siya
didto sa police station. So, mao to mi ingon ang
Supreme Court, “ah ang imung pagpakahilom...”
[Judge D cites again Sec. 32.]
So that’s why the Supreme Court said that “her
silence, her failure to make any comment as to
what the suspect at that time said in her
presence/in her face, wa man siya mosulti, that
was considered as an admission on her part that
what the accused said at that time was true.
[Tinuod tingali. So, silence means yes.]
Sec. 32 . Admission by silence. — An act or
declaration made in the presence and
within the hearing or observation of a party
who does or says nothing when the act or
declaration is such as naturally to call for
action or comment if not true, and when
proper and possible for him to do so, may
be given in evidence against him.
...Unsa man gud imu buhaton ana? Sec 32 tells
us what to do. Sec. 32 ,an act or declaration
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made in the presence and within the
hearing or observation of a party who does
or says nothing when the act or declaration
is such as naturally to call for action or
comment if not true, and when proper and
possible for him to do so, may be given in
evidence against him.
Q: what do you mean by “may be given in
evidence against him?
A: Meaning can be admissible in evidence
against him.
So mao tong kaso ganiha: Dihay
complainant nireklamo siya didto sa pulis
kai gi-rape siya, matod pa bag-o ra siya gi-
rape. Gidakop dayon siya sa pulis ang
suspect, didto sa puils station ingon man
atubangon jud sa pulis ug private
investigator ang suspect, “dili na tinuod
senior pulis kai amu tong gisabutan ang
among gibuhat, that was a consensual
sexual intercourse ug kaming duha nalipay
jud. Amu jud gituman ang RH Bill: nga
satisfying sexual intercourse.” Problema
kai ang victim kai wa jud siya mutingog,
nagpakahilom lang. Now, eventually the
case was filed in court, the court then
convicted the accused and the case reached
the SC eventually and one of the errors
pointed to by the accused kai kayong
pagpahilom sa victim didto sa pulis, wa
man sad na niya gi-rebut: meaning wa man
pud niya gi- deny na nagpakahilom ra siya
didto sa pulis station.
So mao tong ni-ingon ang SC, “ah ang
imong pagpakahilom admissible na: an act
or declaration made in the presence and
within the hearing or observation of a party
who does or says nothing when the act or
declaration is such as naturally to call for
action or comment if not true, and when
proper and possible for him to do so, may
be given in evidence against him”. So,
that’s why the SC said that her silence, her
failure to make any comment as to what the
suspect/accused of the crime said: in her
presence wa man siya nisulti, that was
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considered an admission on her part. So,
silence means yes.
But TAKE NOTE: this is not applicable to an
accused because an accused has the right
to remain silence during the entire
proceedings of a criminal case. So,
exception to the rule na siya. This is not
applicable to a suspect who is under
custodial investigation, because a person
who is under custodial investigation has the
right to remain silence and his silence
cannot be taken as admission of his guilt.
Q: unsa man pasabot anang “when proper
or possible dof him to do so”?
A: Sa ato pa naa jud siya opportunity jud
kai nakadungog siya, unless bungol
siya...so it is impossible for her to comment
kai bungol ma siya.
Then let’s go now to another...SEC.33
Sec. 33 . Confession. — The declaration of
an accused acknowledging his guilt of the
offense charged, or of any offense
necessarily included therein, may be given
in evidence against him.
Section 33 tells us the definition of
confession: CONFESSION is an express
acknowledgment of guilt.
Q: How it differ from admission?
(bantayanan ni)
A:
1. Confession is an express
acknowledgment of guilt, express jud! Sa
ato pa ni sulti ka, “akong sala, akong jud
dakong sala”. Nitangdo jud ka! “Tinuod
jud ikaw ka patay?” “Oo, ako jud, anu
reklamo ka?! While admission could be
express or implied. Nahinumdum mo sa
silence? So, that can be implied. Kanang
asking for forgiveness that is an implied
admission of guilt. Kanang mu-offer ka
nga pakaslan nimu, that is an implied
admission of guilt sa rape...pero
hinumdumi ang criminal law nga kung
musugot gani>> i-raise even the
decision has become final and executory.
2. Then another, Confession involves a
statement which expressly acknowledges
his guilt, while admission is a statement
of facts which does not expressly
acknowledges his guilt. To make it
simpler: confession is acknowledgment
of guilt while admission these are facts
which may prove guilt (indirect ba).
Kaning confession diretso gyud.
3. Another, admission is applicable to
civil and criminal cases, while confession
is generally applicable only to criminal
cases. Pero hinumdumi sa civil duna toy
confession of judgement.
4. An admission can be made by other
person, such as katong partner,
conspirator, agent...whereas confession
must be made by the accused himself.
5. Generally confession is binding
against the confessant alone.
The same with admission there two kinds of
admission...by the way katong gihisgutan
noto sa Sec. 26, kato ganing bahin sa
admission, that refers to extrajudicial
admission.
Kaning section 33, dunay duha ka-klase ang
confession: EXTRAJUDICIAL ug JUDICIAL.
Kaning Sec. 33 this refers to extrajudicial
confession.
Q: Unsay example sa judicial confession?
(Kanina naghatag man ta ug example sa
judicial admission: for example during pre-
trial, during pre-trial.)
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executed their confession separately 4. PREVIOUS CONDUCT AS EVIDENCE

A: Kanang mu-plead guilty siya during and independent from the others.
arraignment that is an example of judicial Sec. 34 . Similar acts as evidence. —
confession. In this case when there is Evidence that one did or did not do a
interlocking confessions, the certain thing at one time is not admissible
Unya as far as extrajudicial confession is extrajudicial confession of one can to prove that he did or did not do the same
concerned, the REQUIREMENTS are: be admitted in evidence against the or similar thing at another time; but it may
other confessant. be received to prove a specific intent or
knowledge; identity, plan, system, scheme,
1. It must be express, habit, custom or usage, and the like.
2. When the confession of an accused is
used as circumstantial evidence regarding
2. It must be voluntary and the participation of his co-conspirators.
This is what we called RES INTER ALIOS
3. It must be intelligently made 3. When a confessant testifies against his ACTA (PART 2), duna naman PART 1 katong
co-accused in an open court. (So, pareho ra sa section 28. Karon duna napud part 2
4. And if the extrajudicial confession is jud sa admission) ( Ako ako ra na basin mao nang isuwat nimu
made during a custodial investigation then sa exam). Seriously this is another form or
the addition requirements are those other kind of res inter alios acta, under sec
You read this case PEOPLE vs. RAQUEL, 265 34.
mentioned under the MIRANDA DOCTRINE: SCRA 248, regarding a confession is
that he must be informed of his right before admissible in evidence against the
the investigation started, that he is confessant alone. Under sec. 28 we learned that a party
assisted by counsel, and that the cannot be prejudiced by the act, omission
confession be made in writing signed by the or declaration of another party. Another
accused/ accused and his counsel. Okey, do you understand now confession; kind of res inter alios acta is mentioned in
how it is differ from admission? Kanang mu- sec. 34. Sa sec 28: other person’s act man
ingon nga, “ako siya gi-patay, tinuod nga to or declaration, karon sa sec. 34: previous
Okey repeat: Generally COFESSION is ako siya gipatay”, that would be considered
binding against the confessant alone or acts of the same accused.
as an admission kung mu raise siya ug self
against the person who made the defense. Pero kung mu-ingon siya nga, “
confession. However, there are exceptions, ako siya gipatay sa diha nga naglalis mi”, Pananglitan kaning si X nasakpan na
among the exceptions are: that would be considered as a confession nangawat, imu gi-filan ug kaso. Unya
because he admitted his guilt. Tan-awon kanunay man ka mawagtanagan; kadaghan
1. The so called interlocking confession. rana niyo kung ni-admit ba na siya sa iya naman ka nawagtangan; niadtong buwan
Have you heard this one? Kadungog mo guilt or wa; kung wa siya niadmit sa iya nawagtangan na ka ug lapton, kaniadtong
ani? Wa pa mo kadungog? Ako ka-dungog guilt that would be an admission, that niagi nga buwan nawagtangan man sad ka
na. admission will also be considered cell phone... ah karon nsakpan nimu si X.
admissible to prove his guilt but indirectly. Question: puede ban a si X naman nman
So, admission is a fact that can be use to lang imu pasanginlan?
Q: what do you mean by interlocking
confession? prove hi guilt.
Lahi-on nato pagkaistorya: pananglitan
So, for example “ako siya gipatay in self nangawat karon si X>>> nasakpan nimu,
A: when two or more accused
defense”, then that is an admission and gifile-an nimu ug kaso. Unya dunay kai
voluntarily and independently
that can be used to prove his guilt later on. amigo nisulti, “ah mao ra ning tawhana,
executed identical confession
mao ning nangawat didto sa SM.
without collusion. They made
confession separately without
collusion and yet there confessions
are identical, although they
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Q: Admissible ba in evidence ang katong
pangawat sa SM para maka-prove sa imu
case batok niya?
A: Now look at sec 34, evidence that one
did or did not do a certain thing at one time
is not admissible to prove that he did or did
not do the same or similar thing at another
time. Dili diay! So, even it is true that mr. X is
the same person who stole items from SM
months before he took your laptop, that cannot
be admitted in evidence against him. So, ang iya
mga previous acts cannot be admitted in
evidence against him. So, i-prove na nimu...
ibaliwala rana nimu ang katong iyang mga
previous acts.
Matod pa sa SC, a person may be notorious
criminal and he had committed many crimes but
still innocent of the crime charged on trial.
Possible nga kawatan jud na siya pero naa
gihapon posibilidad na innocent jud siya maong
charged. So, evidence must be presented nga
siya jud ang maong nangawat dili lang katong
iyahang mga previous acts.
Evidence that one did or did not do a
certain thing at one time is not admissible
to prove that he did or did not do the same
or similar thing at another time.
Q: is there any exception?
A: yes there is exception: “but it may be
received to prove a specific intent or
knowledge; identity, plan, system, scheme,
habit, custom or usage, and the like”.
SPECIFIC INTENT. For example, intent to kill;
asawa gipatay. Unya ang problima ron kai ang
accused ang bana then wala mai nakakita sa
pagpatay jud. Pero dunay mga silingan nga
makasulti nga mga months before or gikan pajud
na sila ga-ipon kadaghan ng kung mag-away jud
na sila i-attempt ug patay ang kanang asawa.
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Q: can those testimonies of the neighbours
regarding the attempts of the life of the wife,
before she died, by the husband can be
considered admissible in evidence? Those are the
previous acts by the accused: can this be
considered admissible in evidence?
A: that can be admitted in evidence to establish
his specific intent and that is intent to kill.
Another example: pananglitan balay gisunog, na
man mag-away na magtiayo...“ah buysit ni,
sunogon nako ni!!”. Pananglitan nasunog jud,
unya gi-charge-an ug arson. Pero wala mai
nakakita na siya ang gasunog. So naay mga
testimonies sa mga silingan na makawitness jud
nga if everytime na mag-away sila mao jud na
ang iyo bisyo nga i-attempt ug sunog ang balay.
Q: Can these testimonies be admissible in
evidence to prove that he could be probably ang
author sa crime?
A: the answer is yes, to prove specific intent.
Then another: knowledge, identity... unsa man
nang IDENTITY? For example dunay gi-muder
unya matod pa sa mga witness ang nagpatay
nisakay ug motor, nag helmet unya riding...
… unya using caliber 25. Can it be
consider in evidence? YES to prove the identity,
or pananglitan nka bonnet, ang killer ane matud
pa sa mag witnesses nag bonnet, unya ang mga
accusado duna ni silay mga charges nga mga
cases of murder nga nag bonnet, pwd ba nga
ma.admitted in evidence nga nag bonnet to
prove the identity? The answer is YES. If there is
a question of the identity as to the killer or
accused. Plan, system, scheme, habit ,kani pd
pareha pd ni sa intent ang habit, pananglitan ron
dunay sunog unya d muangkon ang husband nga
cyay gasunog ug wa pd nakakita kung knsay
gasunog. Pero ingon ang mga silingan ah
nag.away mn nah cla taga.away jd ana nila
mu.attempt mn jd nah cya ug sunog. Can this
testimonies be admitted in evidence against the
husband who is now accuse of the arson? YES, to
prove habit.
Then custom or usage, and the like. Unsa
mn nang and the like? Another circumstances
such as motive. Then similar acts as evidence.
Then another unaccepted offer. Now, an
offer here is made in writing to pay a
particular sum of money or to deliver a
written instrument or specific personal
property but the offer made in writing here
rejected without valid cause. What do you
mean by w/o a valid cause? So for example duna
koy utang nimu unya nagpdala ko nimu ug suwat
nga ako nang bayran. Pro imung gbalibaran,
ingon ka nga dko mudawat anang imung
ikabayad kai wala nimu g.apil ug kwenta ang
interest. Is your refusal to accept an offer to pay
valid? YES. Because when pay a loan you should
include the payment of the interest.
Or pananglitan ni.ingon ko nimu nga
mubayad lng ko sa akong utang checke, ingon ka
dili ko musugot ana gusto jd ko ug cash? Is you
refusal valid? YES, because payment must be
given in a legal tender, a check is not considered
as a legal tender.
So who pay in writing or to deliver a
written instrument or specific personal
property is, if rejected without valid cause,
equivalent to the actual production and
tender of the money, instrument, or
property.
Gani gud gamit ni cya kung duna nay
kaso2 unya. So for example ikiha ko nimu ug
collection of sum of money kai wa ko mubayad
then you can prove nga ni.offer ko nimu in
writing but you refuse without valid cause. In
WRITING, kanang writing pwd mn nah cya text?
So you connect it with electronic evidence. Pwd
ba email? YES. You connect it to the rule on
electronic evidence. Under the Rule on Electronic
Evidence the provisions on the Rules of Court
regarding writing are applicable to electronic
document. So email, ako gi.emailan nga
mubayad ko nimu nya mubalos ka ug email nko
nga d ka musugot nya w/o justifiable cause that
is admissible in writing.
Section 35. Unaccepted offer. — An offer in
writing to pay a particular sum of money or
to deliver a written instrument or specific
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personal property is, if rejected without
valid cause, equivalent to the actual
production and tender of the money,
instrument, or property. (49a)
TESTIMONIAL EVIDENCE
Now, under Section 36 or Section 36
states that a witness can testify only to those
facts which he knows of his personal knowledge,
meaning those facts which are derived from his
own perception, except as otherwise provided in
these rules.
Those facts which do not derived from his
own perception or he did not acquire in his own
perception are in admissible in evidence. And it
will be hearsay.
Pananglitan ron rape, gifilan ka ug rape.
We have learn that if the complainant files a rape
case before the prosecutor’s office she has to
execute an affidavit nya e.attach niya nah sa
iyang letter complaint address to the city
prosecutor. Let us suppose that when the case is
filed in court, sad hang gfile na sa court ang
complainant ni.adto ug abroad kai nurse mn cya
and nobody knows of her whereabouts, now the
prosecutor for example kai wa mn cyay lain na
witness kai rape lage when the turn of the
prosecutor to present has come he was not able
to present any witness aside from the doctor of
course instead he just mark and immediately
offer in evidence the affidavit of the private
complainant. So QUESTION: is the affidavit of the
complainant admissible? If you were the counsel
for the accused what will be your comment or
objection to the said affidavit? The objection is
HEARSAY. You object, your honor we object the
offer or the admission of the affidavit on the
ground that it is hearsay.
Okay, so you are only allowed to testify
to those facts which are based on is personal
knowledge. By saying personal knowledge,
meaning those facts which are derived from his
own perception.
Now, what is the reason why is it the
witness is only allowed to testify to those facts
which are derived from his own knowledge or
personal perception? That is in relation to the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
right of the accused specially in the criminal case
to the right of the accused to confront or cross
examine the person who is the source of the
information.
Now, there are 3 kinds out of court
statements:
1. Hearsay
 If the purpose of presenting the
out of court statement is to prove
the facts ascertain therein.
2. Then another is Non-hearsay
 If the purpose is to prove that
such statement was made and
not to prove the facts ascertain
therein. They called this
independently relevant facts or
statements.
 What do you mean by
independently relevant facts or
statements? Meaning your
purpose was really to prove that
there was such statement and
not really to prove the truth in
the statement. For example si A
ni.ngalan ato ni B ug kawatan in
the presence of C. Ni.ingon si A
ikw B kawatan jd kang dako in
the presence of C. Suppose Mr. B
will file a case for oral defamation
against A, unsa.on mn pagprove
ni B nga si A ni utter o ni hingan
niya ug buang (kawatan cguro
gimean ni jugde), now naturally
Mr. B aside from his own
statement or testimony, will have
to present the testimony of C.
what is the purpose…. Unsa gani
tong gi.ingon ni A “kawatan ka”.
So how should B prove that there
is that statement? So B has to
present Mr. C. What is the
purpose? To prove that there was
really such statement. To prove
that indeed Mr. A utter that
statement. The purpose in not
to prove nga cya kawatan but to
prove that there was really such
statement. You called that
INDEPENDENTLY RELEVANT
STATEMENT, to prove that there
was really such statement and
not to prove the truth asserted in
the statemnt. So mao nay
gitawag nga INDEPENDENTLY
RELEVANT STATEMENT or
INDEPENDENTLY RELEVANT
FACTS. Now, that would be
admissible. That kind of
statement is admissible to prove
that there was such kind of
statement. That is not hearsay.
Nganu mn? Nkabalo mn si C. That
statement has heard by C. He
has personal knowledge because
he acquired it from his own
personal perception not from
others.
3. And the 3rd kind of out of court
statements is so called EXCEPTIONS TO
THE HEARSAY RULE.
Now, if you read the ruling of the Supreme
Court in the case of Estrada vs. Desierto katong
akong g.mention ganina, the Supreme Court
mention reasons from the excluded hearsay
evidence. As what we have said earlier, also that
among the reason why hearsay evidence is
excluded is that absence of the cross
examination. Because the source of the
information cannot be examine. Mi.ingon ra
matud niya, so kanang ni.ingon anang maong
statement d na cya ang maong source kai iya
nmn g.qoute. “Matud niya” or “Miingon cya”, that
is hearsay. Then another is absence of demeanor
evidence. You know when a witness testifies in
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court the judge will not only consider what he is
going to say, but the court will also how he say it.
So for example a rape victim, the court will not
only take into consideration on what allegedly
happen but the court will have to take into
consideration how she would narrate. So kung
pananglitan samtang cya g.examine dha, subject
to direct and cross examination dili cya serious
nagcge ngisi or dugay cya mkatubag sa
pangutana iyang answer dili spontaneous then
most likely mu.ingon ka demeanor most likely the
court will not believe her.
So absence of cross examination, absence of
demeanor and absence of oath. Now, remember
that kanang nagsulti ang source sa dhang
nagsulti nah cya was not under oath. So dili ta
makacguro kung unsa bay iyang gsulti.
Now, there are exceptions to the hearsay
rule. Exceptions in the sense that although it
would seem that the statements are hearsay but
they admissible for being an exception to the
hearsay rule.
Among the important exceptions, there are
11; among the important exceptions are the so
called dying declarations or ante-mortem
declaration.
Section 37. Dying declaration. — The
declaration of a dying person, made under
the consciousness of an impending death,
may be received in any case wherein his
death is the subject of inquiry, as evidence
of the cause and surrounding
circumstances of such death. (31a)
So what do mean by a dying declaration? The
declaration under Section 37 the declaration of a
dying person, made under the consciousness of
an impending death, may be received in any
case wherein his death is the subject of inquiry.
That statement that dying declaration can be
received in evidence as evidence or proof of the
surrounding circumstances of such death. For
example, pananglitan imuhanga papa,
himalatyon ug cancer, ug sa dhang himalatyon
na cya mi.ingon cya dong ayaw kbalaka anang
pag.ekwela nimu naay wa mn jd ko kasulti nimu
naay naka.utang nko, utangan na cya ug 1
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
million kobraha naa ana atong silingan, patay
daun cya. So QUESTION: filan nimu ug collection
case katong silingan nga gi.ingon sa imung papa
anga imung ebidencya katong iyang gsulti daun
niyang kamatay. Can that be admissible in
evidence? The answer is NO. Can it not be
considered as a dying declaration? The answer is
NO. Why? What are the requisites of the dying
declaration?
 1. That the declarant is conscious of the
facts that he is dying
 In other words the declarant here
is dying and he is aware that he
is dying.
 2. And another is that the subject of the
case must be his death.
 Now in the problem given the
subject is not the death of your
father but the collection of the
loan. Not all the requisites are
present. And also the
declaration is not about the
cause and surrounding
circumstances of his death
but his declaration is about
the loan. So that statement
cannot be consider as the dying
declaration.
But suppose your father is a being shot
by your neighbor and you were not present you
were just surprise sad hang naay silingan ninyo
niadto sa inyo nagdagan, naghangak, nag ingon
imung papa ingon si kuan gipusil nya dagan daun
mu didto, unya imung papa didto naghigda unya
gisakay daun sa taxi unya samtang sa taxi
gi.ingnan nimu pa kinsa mn ang nagpusil nimu?
Ni.ingon imung papa is Juan dela Cruz ang atong
silingan daun patay daun cya. Can that
declaration of your father, suppose you will file
now a case of murder or homicide against your
neighbor, can that declaration of your father be
admissible in evidence against Juan Dela Cruz?
The answer is YES. Unya kani ra pd imung tubag
unya, ana raka …Yes because it is a dying
declaration…YOU GIVE THE REQUISITES. What
are the requisites of the dying declaration, that
the declaration is given by a dying person, unya
he must be aware of his impending death.
Unsa.on mn nimu pagkahibalo nga cya aware sa
iyang impending death? So kinahanglan nga dili
na jd ka… kinahanglan nga pangutan.on nimu…
nga kung pangutan.on jd ka sa pulis unsa mn
Noy sa imung paminaw o pamati nimu musurvive
pa ka? Ni.ingon daun ka skong tan.aw murag d
na jd. Ni.ingon sa iyang asawa dai____ ( d nko
madunggan kusog kau katawa ang class). Kana
iyang pagpanugon or kana iyang gi.ingon nga oo
nag.tuo ko nga mamatay ko or bisan wa cya
mi.ingon nga mamatay ko mi.ingon cya sa iyang
asawa dai atimana j dang atong mga anak, that
is a declaration that he is aware of his impending
death.
DYING DECLARATION [cont…]
Manoy,sir sa imong paminaw mu-survive pakaha
ka sa imong samad? Muingon dayun ang biktima,
sa akong tan.aw murag din a jud. Dayun
manugon dayun,muingon dayun,day atimana
atong mga anak. Kanang iyang pag ingon “o
nagtoo ko na mamatay ko” o kahit wala siya
muingon na mamatay ko,niingon siya sa iyang
asawa, day atimana jud atong mga anak, that is
an indication that he is aware of his impending
death, nga naa na siya sa pre-departure area.
Or in one case, wa tuod siya niingon na mamatay
na siya pero niingon siya palihug kuhai kog pari,
kay mukumpisal ko. The SC ruled that it is an
indication that he was aware of his impending
death by requesting to have a priest for his
confession. Hinumdumi ninyo ni, bec being aware
of his impending death is one of the requisites of
a dying declaration. If the declarant is not aware
of his near death that declaration cannot be
admitted as dying declaration. So kung
muingon,” sa imong paminaw sir mabuhi pa
kaha ka aning imong samad,muingon dayun, o
mabuhi jud ko”. That cannot be considered as
dying declaration,bisag gimention pa niya ang
nagpusil niya, why bec, he is not aware of his
impending death.Nganu reqt man jud ng aware
ka sa impending death, ang victim? Bec
remember that he is not under oath, his
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statement is not under oath and his being aware
of his impending death would take the place of
oath bec accdg to SC aperson who is dying will
not have anymore inclination to tell a lie. So it is
one of the requisites, when you answer, unya
gipangutana gani ka ug bahin sa dying
declaration, hinumdumi jd na na he must be
aware of his impending death.
And another, the declaration is made to prove
the cause and circumstances of his death.So for
ex., the case is murder /homicide and here
comes the declaration of the victim offered that
the accused is the killer, is it not that the
declaration is offered to prove the cause and
circumstance of his death? The answer is YES.
[There was a question propounded by a
classmate…not so clear]
Judge said: Just take note of the requisites of a
dying declaration:
 There was a statement made by a dying
person
 That person is aware of his impending
death
 That later on he died.
 That his statement/declaration if offered
in evidence to prove the circumstances
surrounding his death
Kay kung wa mamatay bisaga muingon pa siya
na oo mamatay na jud ko but bec of the timely
assistance of the doctors he survived,can his
declaration be considered a dying declaration?
The answer is NO, bec one of the reqs., of a dying
declaration is that the person making a
declaration is dying, is aware of his impending
death and he died. That his
statement/declaration if offered in evidence to
prove the circumstances surrounding his death.
So take note of all this reqs.
Now,is it necessary that the death of the victim
will immediately follow? The answer is NO. Accdg.
to SC in a case wherein the victim died 14 days
later,so the accused questioned the ruling of the
court on the dying declaration of the victim. The
SC sustained the trial court saying that it would
be enough that the declarant was dying and that
he was aware of his impending death and he
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
later on died. It is not required that death would
immediately follow. That’s the ruling of SC in the
case of “PP vs. Jacinto” Nov. 29, 1984 [not clear
the citation].
Repeat, one of the reqs, is that the victim is
aware of his impending death, either expressly
said that he would die or can be implied from his
words or acts.So sa usa ka kaso niingon ang
victim na “ day atima ang atong mga anak” the
SC took it as an indication that the victim was
aware of his impending death bec of his wounds.
How would you testify in court, considering that
the declarant is already dead. The persons who
were listening>>> the police, or any
person,relative who was able to communicate
with him just before he died . So for ex., the
police will have to testify in court the declaration
of the deceased. Now, what is the evidentiary
value? Pila may gibug-aton, unsa man jud kabug-
at ang dying declaration? Dying declaration is so
convincing that it would be sufficient to convict
the accused. It would be so convincing that
conviction of the accused maybe based only on
that declaration. SO you might ask, does it mean
that conviction of the accused would necessarily
follow if there would be a dying declaration? Wan
a ba gyuy dag-anan ang akusado kung dunay
dying declaration? Unya unsaon mana pag cross
examine,wa naman diha ang declarant? Examine
the person who allegedly heard. You may
question his motive or the competency sa
declarant. Pananglitan katong declarant buta
unya niingon siya na kato siya ang nag patay, gi
unsa man nimo pagka hibaw nga siya ang
nagpatay nga buta man siya? So it does not
follow na wala na kay chansa.
So for ex., naa koy kaso na handle na ingon ana,
dying declaration didto to sa taxi niya gi-
interbyu, silingan, gipusil ang silingan unya diha
man kuno siya sa duol siyay nagkarga didto sa
taxi padng sa Vicente Sotto, the incident happen
somewhere in Calamba unya, iya jd gi-interbyu
ang biktima diha sa sulod sa taxi kinsay ga dung-
gab niya, unya gisulti dayun ang ngan sa accuse.
Then, cross examination,didto the death
certificate gibutang man didto dead on arrival,
kung dead arrival at what point in time, if the
distance is just about 5 minutes, at one point in
time? Nga gisulti na niya na mao na siya ang
nagpatay.Then another is, ang problema ato
gud,kay kato kunuhay naka dungog sa victim,
duna man silay misunderstanding sa accused,
bec ang accused gipa-angkan ang iyang anak
lagot kayo siya kay wala angkuna .So there is
motive for that witness to lie. Im just trying to
show to you how you are going to attack a dying
declaration.
However if the declaration of a dying person will
not qualify as a dying declaration, it could still be
admissible as part of res gestae, it is also an
exception to the hearsay rule. For ex., a dying
person victim of a homicidal attack, a statement
although he did not die but at the time he was
interviewed by the police he said he would die
but due to the immediate medical attention he
did not die so his statement cannot be admitted
as a dying declaration. Although it can still be
admitted as part of res gestae. It has more or
less similar effect as that of dying declaration.
Kung pananglitan mamatay pud siya,dying
declaration. Question ang iyang statement can
be part of res gestae? Yes if all the reqs are
present, nahinumdum mo when we discuss
multiple admissibility of evidence. A piece of
evidence could be used to establish 2/more
purposes.
Lets go now to Sec 38. Declaration Against
Interest.
SEC. 38. Declaration against interest.—
The declaration made by a person
deceased, or unable to testify, against the
interest of the declarant, if the fact
asserted in the declaration was at the time
it was made so far contrary to declarant's
own interest, that a reasonable man in his
position would not have made the
declaration unless he believed it to be true,
may be received in evidence against
himself or his successors in interest and
against third persons.(32a)
The declaration here is made by a dead person/
unable to testify. Unsa manang unable to testify?
Unsa may kalainan ana sa deceased, kay kanang
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deceased unable to testify man pud na.Buhi siya
pero for ex., dili na siya makatingog or dili na
makalihok or toa siya sa gawas and his
whereabouts are unknown so he is unable to
testify. Pero kung nagbuhat siya ug declaration
against his interest, ok we will have an
illustration . OK so for ex., si X gikihaan ug
kasong murder, PP vs X tungod kay siyay
gipasanginlan ni Y nga maoy nagpatay sa iyang
anak na ginganlan ug, S. So it is now X who is
charged w/ murder in connection w/ the death of
S, maoy gi-filean ug kaso ni Y. Si Mr. A , wa ni
siyay labot sa kaso niingon ngadto ni W, nga W
kunsensiya kayo kay nakapatay ko pero laing
tawo ang nasakripisyo. Ingon si W, ha asa man
adto, kahinumdum ka atong patay nga nakit.an
didto sa may SRP, si X may napriso ato per
actually akomay author ato. Ingon si W, mao bah,
unya later on it so happen nga kani si A naghikog
wa ka.agwanta sa iyang kunsensiya . Remember
that the admission of A is against his interest
diba. Now for ex., karun si X iya ng turno pag
testigos pwede ba nga iyang ipresinta si W didto
sa korte to convince the court nga dili siya ang
nagpatay ug nga it was A who was the author of
the crime? Bec A has made a declaration when
he was still alive. Now the answer is YES. Dili
bana siya hearsay? Hearsay na siya pero matud
pa sa rules, exception to the hearsay rule pareho
ra sa dying declration. Mao na siya gitawag na
ang testigos ni W declaration against interest.
Unsa may kalainan sa declaration against
interest nga naa sa Sec 38 sa admission against
interest? Usa sa mga distinctions mao sa Sec 38,
the person making the declaration against his
interest is already dead / unable testify. Whereas
in Sec 26, the person making the declaration is
still alive . IN sec 38, the person making the
declaration is not a party to the case whereas in
sec 26 the person making the declaration is a
party to the case and he made a declaration w/c
is against his interest. So mao na ang sa sec 38
declaration against interest unya kadtong sa sec
26, admission against interest.
Lets go now to pedigree.What do you mean by
pedigree? Accdg to Sec 39 The word "pedigree"
includes relationship, family genealogy, birth,
marriage, death, the dates when and the places
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
where these facts occurred, and the names of
the relatives. It embraces also facts of family
history intimately connected with pedigree.(33a)
Pedigre meaning kaliwat. Pareho gud anang mga
hybrid nga mga iro imo jud isubay kinsay papa
para kung mahalin na, sayon sa pag ingon sa
buyer [di klaro???]kanang inyong iro di kay
mestiso ra pure jd,champion like [sad aw???!!!]
Now, unsaon man nimo pag prove sa imong
pedigree? Sa birth,sa death,marriage, unsaon
mana pag prove? Sa FC daghan pa.agi sa pag
prove sa atong birth, sa Family Code no. 1 na
proof ana mao ang atong birth certificate
problema ana kung wa kay birth certificate.
Pananglitan wa ka ma bunyagi kay di ka Katolika
kay Katoliko ramay magbunyag ug bata karun
ang uban relihiyon dili mana sila pabunyag ari
naman sa dako na esp kanang Muslim di mana
sila pabunyag. Unsaon mani pag prove na mao
na imong ngalan? Then mga public docs., school
records, >>pananglitan wa kay skuyla, unsaon
mana nimo pag prove? So mao na ang rules of
court, rules of evidence nay gihatag na manner
of proving pedigree, dunay mga ebidensiya na
pwede nimo mapakita. Now. Unahon nato ang
Sec 40 para sayon ra ninyo pag sabot.
Under Sec 40, there are 2 kinds of evidence na
pwede nato ma present sa court.
1. Testimonial Evidence
2. Object Evidence
Now, Under Sec 40 SEC. 40. Family
reputation or tradition regarding pedigree.
— The reputation or tradition existing in a
family previous to the controversy, in
respect to the pedigree of any one of its
members, may be received in evidence if
the witness testifying thereon be also a
member of the family, either by
consanguinity or affinity. Entries in family
bibles or other family books or charts,
engraving on rings, family portraits and the
like, may be received as evidence of
pedigree.(34a)
2. January 27, 2013, 7th part
So tan-awa lang, daghan ng mga kuan ha,
daghang mga jurisprudence. Naa’y mga recent
jurisprudence pero basically ang jurisprudence
ingun ra gyud ana. “Immediately before, during
or immediately after.”
Another case. Aw kani grabe na gyud ni kay
one(1) day after the mauling of her father, the
daughter of the victim said that the day after the
mauling of her father, her father went to her
house telling that he was beaten by the three(3)
accused. So usa ka adlaw kuno human gikulata
ang iyang papa miadto didto’s iyang balay. He
was in pain and felt weak. So question, kadtong
gisulti’s iyang papa ngadto niya nga gikulata siya
sa mga accused tulo(3) kabuok, can that be
considered as part of res gestae? Ingon ang
Supreme Court, “ah di na, layo ra sad kaayo na.
Dili na masud sa immediately thereafter.” But the
Supreme Court admitted it as independently
relevant statements.
Unsa tong independently relevant
statement(s)?
-The purpose is not to prove the truth
asserted in the statement but merely to
prove that there was such statement.
Then, ah naa pa gani dinha’s inyong libro diay
oh. Ah, nine(9) hours after the killing. If the
statement was made under the influence of
startling event, and the declarant did not have
the opportunity to concoct or contrive a story
even if made nine(9) hours after the killing, it is
still considered as part of res gestae.
But remember what we have said earlier, if a
statement or declaration does not qualify to be
considered as dying declaration, the same could
be considered as part of res gestae.
Unya, naghisgot man sad ta ug confession ug
admission, puede sad nato na i-connect didto. For
example, naka-dunggab ka, “pak!” Human
nimo’g dunggab, dagan dayon kas police station.
Unya surrender ka’s imuhang kutsilyo. “Sir,
kining naka-dunggab ko sir. Ang akong gika-inom
akong nadunggaban, namatay.” Kanang imong
statement pwede na magamit as part of res
gestae because that is uttered immediately after
the incident and at the same time that could be
considered as an admission or confession. So,
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mao na’y gitawag ug multiple admissibility of
evidence.
So, ang imong testimony is admissible as part of
res gestae and at the same time to establish
admission or confession.
Unya hinumdumi nga kung ang admission o
confession, if an admission or confession is made
during a custodial investigation, the rights under
the MIRANDA DOCTRINE must be complied with,
or must be given to the accused or to the
confessant.
But if not, [if an accused], if a person is not under
custodial investigation then compliance of the
Miranda Doctrine is not required. So, kung dili na
siya matawag nga custodial investigation, then
compliance of the Miranda Doctrine is not
required. Kung dili required, then there is no need
for the accused to be assisted by a counsel, there
is no need for his confession or admission to be
in writing signed by the confessant or the
admittant.
Let’s go now to Section 43. Another exception to
the hearsay rule, entries in the course of
business.
Section 43. Entries in the course of
business. — Entries made at, or near the time of
transactions to which they refer, by a person
deceased, or unable to testify, who was in a
position to know the facts therein stated, may be
received as prima facie evidence, if such person
made the entries in his professional capacity or in
the performance of duty and in the ordinary or
regular course of business or duty.
Now, these are entries made in the course of
business, but the person who made is already
dead, unable to testify.
Now, those entries made by that person could
still be received in evidence as prima facie
evidence of the facts stated therein.
Ok, for example. Adto ka’g bangko. Didto ka’s
bangko ni Charo. Mi-deposit ka. Unya imong gi-
present imong passbook. Di ba ibutang man na
didto unsa’y imong transaction, either deposit or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
withdrawal. Suppose duna’y kaso nga mi-occur,
unya na-involve ang mga entries diha sa imong
passbook. You are now going to prove kung pila
jud for example imung balance. Pero ang
problema kay ang nag-entra, ang kadtong teller
mismo nga nag-entra sa maong passbook, patay
na. Kinsa man ro’y pa-testigoson nimu?
Admissible in evidence pa ba kanang entries
dinha sa imuhang passbook?
The answer is YES, because that is an exception
to the hearsay rule. Entries made in the course of
business. Those entries are made in the course of
business. Now, kinsa ma’y mu-identify? Ato man
ng na-discuss last meeting nga kanang passbook
wala man na’y baba, so kinsa ma’y mu-
testify/mu-identify niadtong maong mga entries?
It could be the custodian or it could be the
supervisor nga familiar niadtong iyahang initial or
familiar niadtong iyahang signature.
Another. Kanang mga nurse. Kanang naa’y
nagtrabaho sa hospital, di ba kanang nurse they
are required to prepare a patient chart. Kanang
patient chart, adto mo sa hospital, nakaadto na
mo sa hospital, na-ospital na mo? “Bawal
magkasakit.” Kanang masakit ka, naa ma’y nurse
nimo mu-atiman, di ba? Kanang tanang tambal
gi-administer nimo, ilista na didto sa chart. Tanan
jud na. For example, simbako, ikiha nimo’g
malpractice ang doctor kay sayop ang iyahang
mga tambal nga gihatag ngadto nimo ug gusto
nimong i-present as evidence kadtong patient’s
chart. Kinsa man, ang kadtong nurse nga
nagabuhat sa entries, wa na diha sa hospital. Tua
na’s abroad kay nagtrabaho na didto. Unya wa na
kahibawo ug asa. Question, pwede ba to i-
present ang kadtong patient chart? Wa na man,
di na man ma-identify adtong nurse.
YES, because entries in the patient chart are
considered as entries in the course of business.
Now, kinahanglan, aron ma-admissible in
evidence, kinahanglang regular gyud ang
pagbuhat sa maong entries. These entries must
be regularly made.
Another. Kanang logbook sa guard. Di ba duna’y
mga guardiya nga i-login jud kinsa’y nisud,
kinsa’y nigawas, especially didto kanang magda
ka’g sakyanan didto sa mga hotel, mga motel. Di
ba? Karon gikiha ba ka ron sa imong bana, unya
usa sa mga pruweba nga didto ka, ang kadtong
logbook sa guard diin tua didto ang plate number
sa imong sakyanan. Wa man sad nimo taptapi.
Can that be admissible in evidence? Wa na mang
guard.
YES. Unsa ma’y basehan nimo? Section 43. Those
are considered as entries in the regular course of
business because the guards are making those
entries in the regular course of business.
So, the entries must be made in the regular
course of business. Unya unsa ma’y basehanan,
reasons/basis for the admission? Necessity and
trustworthiness. Necessary in the sense that
these are needed to prove the case and
trustworthiness because, kasaligan because the
person who made the entries has no interest in
the outcome of the case. Unya wa pa man sad ng
kasoha nahitabo when those entries are made.
So, the degree of reliability is high.
So, hinumdumi ha. Ang kaning sa Sec. 43, the
person who made the entries is already dead,
unable to testify. Unsa to ng unable to testify? He
could be very sick. He could not anymore come
to court. He cannot anymore talk or his
whereabouts are unknown.
Sec. 43 Because the guards are making
those entries in the regular course of business.
The entries must be made in the regular course
of business. Ang basis kay necessity and
trustworthiness. Necessary in the sense that
these are needed to prove the case and
trustworthiness because the person who made
the entries has no interest in the outcome of the
case and wa pa man sad nig kasuha nahitabu
where those entries are made. So the degree of
reliability is high.
Hinumdumi ha ang kaning sa Sec. 43 the
person who made the entries is already dead or
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unable to testify. Unsa to nang unable to testify?
He would be very sick, could not anymore
brought to court or his whereabouts are
unknown.
SEC. 44. Entries in official records. – Entries
in official records made in the performance
of his duty by a public officer of the
Philippines, or by a person in the
performance of a duty specially enjoined by
law, are prima facie evidence of the facts
therein stated.
Unsa may kalainan sa official records ug
sa entries in the regular course of business.
Official records, these are records required by
law. Are there records that are required by law?
Yes. Example police blotter. Policemen are
required in the performance of their duties to
record everything, every report that they would
receive.
Entries that are required by law or
required by their duties or made by them in the
performance of their duties as public officers. So
dunay duha ka clase sa official records. Entries
in official records made in the performance of
duty by public officer or by a person (kaning
person – private person) in the performance of a
duty enjoined by law.
Pananglitan “police blotter,” ang katong
police nga nag record, pananglitan gikinahanglan
na nimu ang maong record pero ang police wa na
diha kay napatay in action, kinsa man run ang
mu testigo sa police blotter? Pwede laing police.
Exception to the hearsay rule.
Another is record made by a person in
the performance of a duty. Required sa balaud,
gipabuhat ug private person. Example.
Passenger Manifest kanang sa barko. Required
gyud na sila nga tanang pasahero nila isuwat sa
passenger manifest. For example e present ra
tong passenger manifest. Unya kay na apil man
ug kalunod ang gasuwat, admissible in evidence?
YES. Because those are entries in official
records.
Unsa may value or kabug-atun ni ining
mga entries? Look at, prima facie evidence.
Meaning this facts if not controverted will be
deemed conclusive. Pananglitan gibutang didto
sa passenger manifest nga tua jud ka didto, there
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
is a presumption that you are a passenger and it
is up to the shipowner to disprove that you are
not a passenger. Pananglitan ni ask ka run ug
damages kay nalunod ang MV Lutaw-Lutaw, unya
pag kobra (collect) nimu gi disown ka kay
kunuhay dili tinuod nga pasahero ka sa barko.
Naa man didto ang imung ngan sa passenger
manifest so the presumption is you are really a
passenger. Unya pwede sila mu present ug
evidence nga wa ka mudaun ug sakay? Yes.
Because that is only prima facie.
Mao pud na siya sa police blotter.
Kanang entries diha sa police blotter dili na
conclusive. You can controvert or you can
explain nga ingun ka nga gitulis ka pero way
ngan kay wa man ka kaila ato nya kay first pa
nimu nakit-an to siya pero imu gibutangan didto
nga ug makakita ka usab makaila ka. Pag
hearing, imu nang gi tudlo ang accused, gi
confront dayun ka didto sa imuhang gi report sa
police, “Nakaila man kaha sa accused, nganung
wala man nimu na gisuwat pag report nimu?”.
Ingnun nimu “Nakaila ko nya pero wa ko kaila sa
iyang ngan because that was the first time I saw
him.” Are you allowed to explain the entries in
the police blotter? Yes because entries in the
police blotter are merely prima facie evidence.
Unsa may basihan sa admission? Mao
gihapon. Necessity and trustworthiness.
Necessity in the sense that the same is to be
admitted in order to avoid inconvenience and
dichotomy in requiring attendance for the
disrupation of government function.
Trustworthiness because there is presumption of
regularity in the performance of official duties.
Unsa may kalianan sa Sec. 43 ug sa
Sec. 44?
SEC. 43 SEC. 44
The person who made The person who made
the entry is already the entry is still alive.
dead. But although he is still
alive the document
would be identified by
another person.
The entries are made The entries if made by
pursuant to a duty a private person is
either legal, moral, made pursuant to a
religious, or contractual. specific legal duty only.
Meaning required by
law.
SEC. 45. Commercial lists and the like. –
Evidence of statements of matters of
interest to persons engaged in an
occupation contained in a list, register,
periodical, or other published compilation is
admissible as tending to prove the truth of
any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally
used and relied upon by them therein.
Unsa ma nang commercial lists? Kana
btaw naa diha sa mga newspaper nga dihay mga
business section sa newspaper naay mga suwat
exchange rate sa piso, unya naa muy lalis ug pila
gyud ang sabot ninyu sa ibayad ka yang inyu
sabot equivalent sa dollar exchange on that day
nga nagsabot mu. Unya kay gilalisan man ninyu
pila jud, aw pwede na e present didto sa Court
kanang maong newspaper containing the dollar
exchange.
Another kanang sa telephone directories,
for example unincorporated incorporation, you
can sue a group or association of persons
portraying themselves as a corporation, can be
sued as a corporation although they are not. So
usa sa imu prueba nga nagpamatuod nga
corporation kunuhay sila, example dunay
directory didto gibutang nila ang ilang ngan as
corporation.
Another improper venue. Example mu
ingun ang defendant aw wa man ko magpuyo
dinha, this case should be dismissed on the
ground of improper venue, the plaintiff is not
residing here, I am not also a resident of Cebu
City pero kay na man sa telephone directory na
man didto ang imung ngan, resident of V. Rama
St., Cebu City, can that be admissible in
evidence? Yes. Commercial lists and the like.
SEC. 46. Learned treatises. – A published
treatise, periodical or pamphlet on a
subject of history, law, science, or art is
admissible as tending to prove the truth of
a matter stated therein if the court takes
judicial notice, or a witness expert in the
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subject testifies, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject.
Kani mahitungod ni sa mga writings sa
mga experts in the field of history, law, science
and art. For example in the field of law kinsa
man ang mga experts? Remedial law? Regalado
there is no question he is an expert, Dean Riano
or Herrera. Or constitution we have Bernas, for
Civil Law we have Paras, Criminal Law we have
Reyes. So ang ilang mga treatise or writing ana
could be admitted in evidence in a particular
field.
Pwede sad nga dili expert but there will
be an expert that will vouch the expertise, for
example dunay ngan Juan dela Cruz unya ingun
si Regalado, ah kana siya expert. The worth of
that person vouched by Regalado as an expert
could also be admitted in evidence.
SEC. 47. Testimony or deposition at a
former proceeding. – 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, may be given in evidence against
the adverse party who had the opportunity
to cross-examine him.
This is important, the same with dying
declaration and res gestae.
For example a policeman (P) while
arresting a person iyang napatay ang maong taw
(A). Now he is charged with murder. You know
when a government employee commits a crime
duna nay duha ka kaso nga iyang atubangun. If
he commits a crime in the performance of his
duty he could be charged with criminally or
administratively. So gi charge siya ug “murder”,
gi charge pud siya ug administrative let just say
“grave misconduct” didto sa NAPOLCOM. Kaning
duha manginahanglan jud ni ug hearing, di ba?
Asa ma ni pa ingun (murder)? Sa RTC. Kani
(grave misconduct)? Usa ni ana Ombudsman or
NAPOLCOM. Ibutang lang nato sa NAPOLCOM gi
file-an ug kaso. Now, witness si (W). Naka
witness siya didto sa NAPOLCOM, una man gi
hearing ang NAPOLCOM kay dali ra man didto.
So naka testify siya (W) didto, he was subjected
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
to cross-examination by the lawyer of P. The
problem is samtang siya nagapaabot sa hearing
sa RTC namatay ma na siya (W) before the trial of
the murder case started. Wa na may laing
witness sa maong kaso, pwede ba nga katong
iyahang testimony didto sa NAPOLCOM mao na
lay e produce diri sa RTC? Yes. Under Sec. 47.
The testimony of a person given in ad
administrative or judicial body or tribunal could
be admitted in evidence provided that the
adverse party has been given an opportunity to
cross-examine. Take note of OPPORTUNITY TO
CROSS-EXAMINE. Take note deceased or unable
to testify. Take note also INVOLVING THE SAME
PARTIES and SUBJECT MATTER. Meaning the
issues are the same. The cases could be
different but the issues are the same.
Unya unsaun pagkahibalu sa judge sa
RTC nga mao toy gipanulti sa witness? The
transcript of the stenographic notes, the records
of the hearing shall be offered in evidence didto
sa Court.
Pananglitan ang witness buhi pero dili
lang gyud siay mu testigos would that fall under
the phrase unable to testify? You answer that
question.
What about the testimony of a witness
during preliminary investigation? Kahbaw na
man ka nga kanang preliminary investigation
Fiscal ma na so administrative. Suppose the
witness was only able to testify during the
preliminary investigation, during the trial he was
not able to make it because he already died.
Katong iyahang testimony didto sa prosecutor’s
office, admissible in evidence ba to sa court?
Ang imung tan-awun ana kung duna ba sila
opportunity to cross examine.
7. Opinion Rule
Is the opinion of a witness admissible in
evidence?
SEC. 48. General rule. – The opinion of a
witness is not admissible, except as
indicated in the following sections.
Opinion is different from facts. Only facts
are admissible in evidence, opinion of a witness
is not. Pananglitan reckless imprudence mu
ingun ang witness, “I saw the driver driving
recklessly.” That is an opinion. That is not for
him to say whether the driver was reckless or
not. That’s for the court. Only the court is
allowed to make a conclusion of fact. Kani mu
ingun ang witness, “I saw the driver travelling the
opposite lane, encroaching the opposite lane,
crossing the solid line.” That is a fact. That is
not an opinion. Or I saw the driver running the
red light. That is a fact kay nakita ma na nimu.
Pero ug mu ingun ka the driver was reckless then
that is an opinion.
Pananglitan mu ingun ang witness nga
police, “I confiscate from the accused one-kilo of
shabu.” That is an opinion, that is not for you to
say nga shabu or not. Unsa may facts ni ana? “I
confiscated from the accused one-kilo of white
crystalline substance suspected to be shabu.”
Facts na na siya.
Generally a mere witness is not allowed
to give his opinion and so if a witness is asked of
his opinion you can object. “Objection your
honor, the question is asking for an opinion.”
Daghana na natog basehan sa objection
ani noh, “Objection your honor, hearsay.”
“Objection your honor, violation of the
deadman’s statute.” “Objection your honor,
violation of the res inter alios acta rule.”
What are the exceptions to the general
rule that an opinion of a witness is not
admissible?
I. A witness is allowed to give his opinion if he is
an expert witness.
SEC. 49. Opinion of expert witness. – The
opinion of a witness on a matter requiring
special knowledge, skill, experience or
training which he is shown to possess, may
be received in evidence.
There are requisites:
1. There must be a matter or issue that requires
expert opinion.
2. The witness must indeed be an expert, must
be qualified to be an expert witness.
Unsa man pananglitan sa matter or issue
that requires expert opinion? Did he commit
suicide or was he killed? That requires expert
opinion. Labi na ug way nakakita. Another, was
she raped before she was killed? That requires an
expert opinion. Is it a shabu or not? That
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requires expert opinion. Kinsa may mu testify
ana? Kana gitawag nga mga “forensic chemist.”
Timan-e ha when you present the witness
dili na kay pangutan-un na nimu sa iya edad
iyang ngan,
January 28, 2013
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of
proof is the duty of a party to present
evidence on the facts in issue necessary to
establish his claim or defense by the
amount of evidence required by law.
Burden of Proof – that refers to the
duty of a party (whether plaintiff or accused) to
present evidence on the facts in issue necessary
to establish his claim or defense by the amount
of evidence required by law.
I have discussed with you the amount of
evidence required in every kind of cases
(criminal, civil, or administrative).
What do you mean by Factum Probandum?
Factum Probandum – refers to the
ultimate facts. Ultimate facts refers to the facts
alleged in the complaint.
Ato na nang gihisgutan nga magbuhat ka
ug complaint, ang imong e-alleged didto ang
ultimate facts ra. We mean that those facts which
are necessary or only those facts which
constitutes the cause of action. Evidentiary facts
need not be alleged.
What do you mean by Factum Probans?
Factum Probans – this is now the
evidentiary facts or the evidence that will support
or will establish the ultimate facts. Kay ultimate
fatcs ra man imong e-alleged didto sa complaint
or information (kadto ra man gyud elements sa
cause of action), during the presentation of
evidence you are now going to present the
factum probans meaning the evidentiary fatcs.
So mao ni. Naa na ni mga buwak2x. taas na ang
istorya. Pero kadtong sa complaint mubo ra.
Burden do Proof vs. Burden of Evidence:
Burden do Proof Burden of Evidence
 Does NOT  Transfers or
transfer or shift from one
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
does NOT shift. party to Now, pananglitan the defendant did not
It remains another raise an affirmative defense but denial. Wala siya
throughout the depending mi ingon nga nibayad pero ni-ingon siya nga
trial between upon the “wala jud ko ka utang.” Now, who has the burden
the parties exigencies or of proof? The burden of proof is upon the plaintiff
upon whom it development of to establish that indeed that the defendant has
is imposed. the case during obtained a loan kay ni deny man ang defendant.
the trial. That is to show to you that burden of
 So, whichever proof especially in civil cases depends upon the
of the parties pleadings of the parties. And who ever between
has the burden the parties has the burden of proof, that burden
of proof then of proof remains to that party throughout the
that burden of entire proceedings.
proof remains Unya e-compare na nimo diri sa burden
throughout the of evidence, kanang burden of evidence pareho
trial. ran a sa order of trial. Mo una ang plaintiff. Mo
balos ang defendant. Human sa defendant mo
 Generally  Generally balik na sad diri sa plaintiff para sa rebuttal kay
determined by determined by iyang e-refute tong evidence sa defendant. Unya
the pleadings the human sa rebuttal, sur-rebuttal. Mao na siyay
of the party. developments burden of evidence.
of the trial. Sa criminal cases, kinsa may nay
burden of proof? It is always the prosecution.
Why? Because of the presumption of innocence
So sa civil case for example kinsa may on the part of the accused. The accused is
nay burden of proof? Now, depende na sa presumed innocent. As what we have said in our
pleadings. Kay kung ang defendant mo alleged previous meetings, the accused is not required to
ug affirmative defense, for example mo ingon present evidence to establish his innocence. The
siya nga payment. So for example collection of same is presumed. Pero kanang presumption
sum of money unya sa iyang answer sa niya of innocence, dili pod na buot pasabot nga
defendant ingon siya nga “nabayran na na.” that dili pod na siya ma konbikto. Ma konbikto
is an affirmative defense. Hinumdumi unsay gihapon siya if that presumption is controverted
definition sa affirmative defense ha? That is an or overthrown by strong evidence of guilt. So the
allegation of new matters by way of avoidance. burden of proof is always upon the prosecution.
Meaning, allegation of new matters in order to In other words regardless of the defense of the
escape liability. So, mo ingon siya bayad na man accused, the burden of proof is always upon the
na. that is an affirmative defense. And since that prosecution.
is an affirmative defense, he is in a way What about in administrative case? In
admitting the allegations in the complaint but administrative cases, the burden of proof is
ingon siya nga “aw tinuod naka utang ko pero always upon the complainant. Well anyway, the
bayad na na.” Now, in this situation, the burden burden of proof required is only substantial
of proof is now on the part of the defendant. He evidence. Basta aduna kay gamay nga
is now has the duty to prove or present evidence ebidensya.
to establish his defense. The burden of proof is
now on the part of the defendant. Gi unsa pag Facts which need not be proved:
determine? Pina-agi sa allegations sa pleadings Ato man nang nahibaw-an nga kaning
(sa answer). ebidensya facts man na siya diba? In order to
establish the facts of the case, the parties are
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requires to present evidence. There are facts that
need not be proved. There are facts that do not
require the presentation of evidence.
1. Facts that are presumed.
Dunay mga fatcs nga gi presumed. Kung
gi-presumed na siya dili na na magkinahanglan
ug ebidensya.
2. Facts which are of Judicial Notice
There are facts which do not require
presentation of evidence because the Court is
mandated by law or has the discretion to take
judicial notice. Kana bang mo ingon nga “ah
kahibalo na ko ana. Ayaw nalang ko ug sultihi ana
kay kahibalo na ko ana.” Judicial Notice. We will
discuss it later kung unsa nang mga facts nga
Judicial Notice. Sa ato pa kaning maong mga
fatcs ilado na tanan. Hapit tanang mga tao
nakahibalo na so maong ang court dili nalang
manginahanglan ug ebidensya kay hapit tanang
mga tao nakabalo na unya ang korte impossible
nga maoy nalang ang wala kabalo.
For example, history of our country. Dili
na ka manistil mo ingon nga or mo present ug
evidence nga naa na sila si Rizal or nga naa na
sila si Andres Bonifacio or Katipunan. These are
the history of our county and can be taken as
judicial notice.
Another, kanang acts of the different
branches of our Government, the laws passed by
the Congress dili na kinahanglan mo presentar ug
evidence nga “aduna na ron bag-ong balaon sa
RH Law or sa balaod sa Kasambahay. The courts
are required to take judicial notice.
3. Facts which are Judicially Admitted
During pre-trial, facts that are admitted
or stipulated upon by the parties do not anymore
require presentation of evidence. Facts admitted
or stipulated by the parties during the trial don
not require presentation of evidence because
these are judicial admissions. Facts that are
admitted in the answer or allegations in the
complaint that are admitted by the defendant in
his answer these are admissions and therefore
the plaintiff is not required to present evidence
coz that would be a waste of time.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
TAKE NOTE: Ang abogado or plaintiff matngon
sa iyang allegations sa iyang complaint kay kung
unsay iyang gipang alleged diha dili na na siya ka
deny. Admission na na siya. Ang abogado pod
nga magbuhat sa answer sa defendant, mag
careful pod kay whatever facts or allegations that
are admitted in the answer are considered
judicial admission. Bisan pa ug dili tinuod gud…
nasayop lang siya. Bisan bakak or dili tinuod
unya gi admit na established facts na na siya.
Mao nay gitawag ug facts of the case. Gitawag na
na siya ug facts of the case. Wala na na siyay
lalis.
PRESUMPTIONS:
Now, we discussed about presumption.
There are two kinds of presumption: Conclusive
Presumption and Rebuttable Presumption.
1. Conclusive Presumption -Wala na. Dili
na madala pa ug ebidensya. It cannot
anymore be controveted.
2. Rebuttable Presumption – that can
still be contoverted but however, if this
presumption would remain as it is…
meaning if these facts which are
presumed if they remain uncontroverted
then they will become conclusive.
Section 2. Conclusive presumptions. —
The following are instances of conclusive
presumptions:
(a) Whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately led to another to believe a
particular thing true, and to act upon such
belief, he cannot, in any litigation arising
out of such declaration, act or omission, be
permitted to falsify it:
(b) The tenant is not permitted to deny
the title of his landlord at the time of
commencement of the relation of landlord
and tenant between them.
Under Section 2 of Rule 131, these are
the conclusive presumptions.
One conclusive presumption is when a
party has, by his own declaration, act, or
omission, intentionally and deliberately led to
another to believe a particular thing to be true,
and the other party acted out based on his belief
or based on the representation of that party, that
party making the representation is not anymore
allowed to deny what he has declared if there is
any litigation over it.
And the other party acted on such belief based
on such belief based on the presentation of that
party. That party making the representationis not
anymore allowed to deny what he said in case
there is any litigation over it. For ex, a group of
persons pretending themselves to be a
corporation when in fact they are not and the
person whom believed that they are a
corporation in case of ay litigation this group of
person cannot deny that they are unregistered
and not a corporation. So, estoppel by deed. This
is an example of estoppel. The presumption is
conclusive u are not allowed to deny it.
Another ex, a law professor in Manila during his
bday invited his fellow prof to a dinner. He treat
them in a restaurant where it post in the door
“we accept major credit cards
angusadidtokaybanc card”
kaylageiyauntanggamitoniyang bank card. After
the dinner iyanggitawagang waiter to pay the bill
abd give his credit card. To his surprise the
restaurant refused to accept his credit card
kaylage expire na.but the credit card expiration
date is still in Dec nangaonclaug Oct layo pa ang
expiration date. Now, tunognauwawanxa,
gikataw-an, gisungodxangaunsa man
manghugasnlng mi anigplato? Gipaagira tog
komedyaperohilabihanjudniyangkauwaw. Bec of
that iyang cash nlngiyanggbayad and after that
he filed a case with the restaurant. One of the
defenses of the restaurant is that “we are not
obliged to accept credit cards”. Kay matud pa
kuno under OBLIGCON, in should be in cash. SC
said you are estopped by u row act by posting in
your door that you accept credit card, you are
estopped from denying that you are not
accepting credit card. Take note the presumption
is conclusive. Mandarin Villa INC. vs. CA 257
SCRA 538.
ANOTHER CONCLUSIVE PRESUMPTION is:
(b) The tenant is not permitted to deny the
title of his landlord at the time of the
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commencement of the relation of landlord
and tenant between them.
So, for ex the tenant is renting a house and lot
then after few months he failed to pay his rentals
when the lessor, owner, landlord demanded him
to vacate, he said that he is not obliged to vacate
bec the land is owned by the government. Sa
government maningyuta-a nganumangayo man
kagabang? Bi taga-e kog reimbursement nuon,
said the tenant. Is he allowed/ permitted to deny
the ownership of the landlord? No, by paying
rentals he is now acknowledging the ownership of
his landlord. By such admission, he is not allowed
to deny. Even though it’s true that the landlord is
not the owner, he is estopped and take note that
is conclusive.
Let’s go now to:
SEC. 3. Disputable presumptions.—The
following presumptions are satisfactory if
uncontradicted, but may be contradicted
and overcome by other evidence:
(ubay-ubayning Disputable presumption,
unyalagekaymo take man mog bar, pag
memorize lang mob sag napulo. Kay
gpangutanani in one
instacengagipasuwatangmga examinees to give
at least 10 presumptions.)
(a) That a person is innocent of crime or
wrong;
We have learned this already, it is stated in
the Constitution. Person accused of the crime
is presumed innocent even in civil cases.
There is a case that reached SC remember
the provision of Malversation under RPC,
there is a provision in Art 217 that an
accountable public officer fails to produce the
amount under his custody after demand
there is a presumption of Malversation. He is
presumed guilty of the crime of Malversation.
Does is not ran counter on the presumption
of innocent? Is it Constitutional? the SC said
that is Constitutional because it is within the
powers of Constitution to create a prima facie
evidence of guilt. It is within the power of
Congress to enact a law providing for prima
facie evidence of guilt provided that there is
a rational connection of the fact proved and
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
the fact presumed. This presumption is
rebuttable kay prima facie ra man na if di
kaka explain nganungwalakaka produce ah
convictojudka.Bakasnot vs.
Sandiganbayan Nov 5, 1987.
There are still other cases:
 PP vsMingwa 92 Phil 856
 Vallarta vs CA May 29, 1987
(b) That an unlawful act was done with an
unlawful intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person take ordinary care of his
concerns;
(e) That evidence willfully suppressed
would be adverse if produced;
Requirements in order for this rule to apply:
 Evidence must be material. Meaning
it is not merely corroborative or
cumulative. Material means when it
directly proves a fact in issue that a
party has an opportunity to produce
the same and;
 Such evidence is appealable only to
said party. Meaning it is only that
party has an access to said evidence.
This evidence could be a witness,
testimonial evidence. For ex, the
prosecution has a vital witness, an
eye witness, the only eye witness of
the crime. But for an unknown reason
the prosecution did not produce that
witness and the presumption is the
prosecution suppress or purposely
did not present that witness because
if the testimony of that witness such
testimony would be adverse to the
prosecution. Take note of the word
willful because if the suppression of
the witness is not willful because the
prosecution fails to produce that
witness bec the witness suffers so
much trauma in a rape case, the
testimony of the victim I the rape
case is very vital. The prosecution
failure is due to trauma, nervous
breakdown. Is the on presentation of
the witness willful? No, so since it is
not willful the presumption that if
that W is produced would be adverse
if produced will not apply.
I think kinikay where (e) will not apply:
 When such evidence is merely
corroborative. If the piece of
evidence merely supports would
merely strengthen the evidence
presented. If presented would not
create presumption that the same
would be adverse if presented.
 When that evidence is at disposal of
both parties. Meaning both parties
has the access to that piece of
evidence. Kung dilimaka present and
usaka party, angusaka party mo
present kayparehas man sila nay
copy.
 Suppression is in the exercise of
privilege communications. So if that
witness is not produced invoking his
privilege, filial privilege, a parent
cannot be compelled to testify
against his descendant and vice
versa.
(f) That money paid by one to another was
due to the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the
debtor has been paid;
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(i) That prior rents or installments had been
paid when a receipt for the later ones is
produced;
You have learned it in your Civil Law, for example
naakay 5 mosnga arrears
unyagibayarannimuangika 5 ang presumption
ana all prior monthly rents are paid. The
presumption is only rebuttable.
We have learned this in our criminal law. A
person who is found in possession of stolen item
is presumed to be the author of the crime if there
is no explanation as to how come he has
possession of that stolen item. Otherwise, kung
dili na siya stolen, then you are presumed to be
the owner.
O, kanang imung libro, kinahanglan pa ba ka mo
ingon sa imong silingan nga, “Psst! Bai, ako baya
ning libro ha.” Kanang imong cellphone,
kinahanglan pa ba ka mo ingon sa imong silingan
nga, “Psst! Ako ning cellphone ha. Ayaw angkona
ha.” Ngano man? Because you are presumed to
be the owner. Because that is not stolen. Pero
kung kinawat gani na, proceeds gani na from a
wrongful act, the presumption ana nga di ka tag-
iya. Nga ikaw ang author sa maong
pagpangawat.
(m) That duty or official duty has been
regularly performed.
So policemen, daghan jud ni, sagad. Unsa mai
sagad/kasagaran i-raise nga defense anang
masakpan for example ug drugs? Planted. Frame-
up. So, the policemen are presumed to have
performed their duties regularly. Now, this
applies to public officers. This presumption
applies to public officers. Government doctor.
Presumed to have performed their/his duties
regularly. Pero kung duna gani mga bolilyaso,
duna gani klaro nga mga lapses ang mga police;
for example Sec. 21 sa RA 9165, wa gani gituman
ang requirements sa RA 9165, Sec. 21, way
inventory, unsa to? Way inventory, way picture-
taking [in the presence of the accused or
suspect] ug way marking. Kanang 3. Mag-unsa
man ng inventory kung way marking. Dili na mu-
prevail, dili na mu-ingon nga oi admissible among
ebidensya kay presumed mi to have performed
our duties regularly. No, that will not apply. Kay
matud pa pud sa Supreme Court, between
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
presumption of innocence and presumption of
regularity in the performance of duty, ah
presumption of innocence shall prevail IF there
are irregularities. [Kung duna joi klarong
irregularities, himuon jud nimung regular, ha? Ok.
] Now, dunay presumption nga tua ni didto sa tort.
(v) That a letter duly directed and mailed
was received in the regular course of
business.
Gamit ni. Nahinumdum mo sa pag-furnish sa mga
pleadings ug mga motions? Di ba ang first
choice/first option ninyo is personal service. But if
there is justifiable reason not to effect personal
service, you can do it thru registered mail. Mao ni
letter (v).
Mu ingon gani tong pikas, “wa man ko kadawat!”
ah, presumed na. That a letter duly directed and
mailed was duly received in the regular course of
the mail. O, mga documents, orders, decisions
gikan sa court, puede man na i-mail. “Wa man ko
kadawat!” Ah presumed nga nakadawat ka.
(w) Presumtion of Death
Ah inyo na ning gi-master sa inyong civil, di na
lang ta ani.
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage.
We have discussed this when we discussed
pedigree. This is another. So, a man and a
woman, pananglitan, naa man na, pananglitan
wa ma-record didto sa LCR. Open Court. Kay
nakalimot ang judge nga nagkasal kay dili man
pud na siya maoy personal nga magpa-rehistro
didto, ang clerk man. Nakalimot ang pari nga
maoy nagkasal kay di man pud na siya maoy
personal nga mohatod didto, ang kadto ra man
pong BSP, tong BOY SA PARI. Mao ra man pud
nay moadto didto. So pananglitan kung ma-
rehistro didto, does it mean nga wa ka makasal?
NO. The presumtion is “a man and a woman
deporting themselves as husband and wife are
presumed to have entered into a lawful contract
of marriage. And he who alleges that the couple
are not married, kay naa may presumption in
their favor, ah ikaw nga mi-question maoy dunay
burden. Kung dili ka mu-present ug evidence
then mahimo ning conclusive. Ok?
Ah kanang sa legitimacy, ah master na ninyo sa
Family Code, di ba?
Succession ug kung kinsai mu-survive, kanang sa
(jj), just a matter of reading, di na na
magkinahangla’g taas nga explanation.
Tua ni didto sa Art. 2176. This is what we call res
ipsa loquitor. What do you mean by res ipsa
loquitor? The thing speaks for itself. Pero kana ra
gani inyong itubag, zero’han ko gyud na.
Question: What do you mean by the doctrine
of res ipsa loquitor?
Ans. This is a presumption of negligence on the
part of the person who is in control of the object
or thing that caused the unjury. Kanus-a man sad
ning maong presumption mu-apply? Now.
According to the Supreme Court, where the
thing which caused the injury, without fault
of the injured person, is under the
exclusive control of the defendant, and the
injury is such as in the ordinary course of
things does not occur if he having such
control used proper care, it affords
reasonable evidence, in the absence of
explanation, that the injury arose from the
defendant’s want of care.
So kanus-a man ni siya mu raise ang
presumption of negligence on the part of the
person who is in control of the thing that caused
the injury.
1. Where there is no fault on the part of the
injured party
2. When the thing which caused the injury is
under the exclusive control of the
defendant
3. There is absence of explanation as to
what caused the injury
So, wa gyu’y nakakita ug nganung nahitabo tong
maong hitabo, nganung nahitabo to siya. Ah, the
presumption is he who is in control of the thing
which caused the injury is presumed to be
negligent. That’s the ruling of the Supreme Court
in that old case of Africa vs. Caltex, 16 SCRA
446.
So kai siyang presumtion of neligence, usbon
nato, this can only occur where there is no direct
evidence as to why the incident occured.
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For, example, dihay kausa diha sa may sinehan
sauna nga gitawag ug Vision Theater, kanang wa
na man na ron. Karaan kaau na, usa na’s mga
landmark diha’s Colon. Ang taxi didto misud.
Nganung misud to siya. So, kung wa toi
explanation nganung nasud to siya, so the
person who is in control is presumed to be
negligent. Unsa may sah/sayop sa building. Unsa
may sayop sa mga tawong naa didto. Di ba? So
way negligence. So, the presumption is the
person who is in control of the taxi is the one
negligent.
Sec. 4 – Presumption as to legitimacy or
illegitimacy.
Aw wa na, master na ninyo ni sa Family Code.
Matter of reading ra na.
Ok, let’s go now to Rule 129.
Rule 129
We discussed earlier facts which do not require
presentation of evidence kay general rule man
gud, mo ingon gani tag facts, magkinahanglan
jud nag evidence, magkinahanglag witnessess,
magkinhanglag documents, magkinahanglag
objects to prove the existence nianang maong
facts.
Ok now, among the facts that do not require
presentation of evidence are facts of judicial
notice.
Question: What do you mean by judicial notice?
Ans. Judicial Notice- this is the cognizance of
certain facts which judges may properly take and
act on [or upon] without proof because they
already know them.
This is for convenience and expediency. Kana
man gong mo present kag evidence,
magkinahanglan nag oras. Unya whereas kung
mu take kag judicial notice, there is no need to
present evidence. So, the court can save time.
Now, remember that judicial notice is
different from personal knowledge of the
judge.
Question: So for example, can the court take
judicial notice that Laoag is in Ilocos? Puede ba
siya mu take ug judicial notice nga ang Laoag
City is in Ilocos? But the problem is, the judge has
not been there. How could the court take judicial
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
notice when in fact the presiding judge has not
been there?
Ans. Judicial notice is different from the personal
knowledge of the judge. Even if the presiding
judge has not been there in his lifetime, the court
should take judicial notice.
Another example. For example, the court is
handling a murder case or is trying a case for
homicide. Unya it so happens that the accused is
a neighbor of the judge. Silingan. Duol ras ilang
balay ang akusado. Unya the accused died.
Nakahibawo ang judge kay agianan man ang
iyang balay. Ma-agian man niya ang balay sa
akusado padung sa korte. Can the court take
judicial notice that the accused died? Puede ba
nga mu take na lang siya’g judicial notice, di na
lang siya mu require ug presentation sa death
certificate? Kay ang judge nakahibalo man nga
patay na ang akusado kay iya mang silingan?
Personal knowledge of the judge is different form
judicial notice. The court cannot take judicial
notice even if the judge personally knows
that the accused is already dead. And what
should the court do in order to dismiss the case?
The court should require the presentation of
death certificate.
Unsay hinungdan nganung gitugot ang judicial
notice? For convenience and expediency.
There are two (2) kinds of judicial notice:
1. Mandatory- meaning there is no way for
the court not to take judicial notice.
2. Discretionary
Now, what are these facts which courts are
mandated or should take judicial notice?
1. The existence and territorial extent of the
states
2. Political history
3. Forms of government and symbols of
nationality
4. Law of nations –lahi ni siya sa foreign law ha.
5. Admiralty and maritime courts of the world
and their seals
6. The political constitution and history of the
Philippines
7. The official acts of the three branches of the
government—legislative, executive and
judicial departments of the Philippines
-Unsa may mga official acts for example sa
legislative? Kanang mga laws nga ilang na
enact.
-Executive? For example, the amnesty
extended by the president. That is an
executive act.
-Unsa may example sa official acts sa judicial
department of the government? For
example, the decisions of the Supreme
Court.
-So, mao na nga ang judge kinahanglan jud
nga updated sa mga decisions sa Supreme
Court. Just as the lawyers must also be
updated regarding the decisions of the
Supreme Court.
8. The laws of nature
9. The measure of time
10. The geographical divisions
So those are the facts that the courts should take
judicial notice.
Now, dunay poi facts wherein the court has
the discretion not to take judicial notice.
1. Matters which are of public knowledge
2. Or capable of unquestionable
demonstration
3. Or ought to be known by judges because
of their judicial functions.
So, kung common na gani kaau ng maong... kung
public knowledge na gani na, the court has the
discretion to take judicial notice.
Example: Existence of habal-habal
Wala pa may balaod... di pa man na gi recognize
ang kanang motor nga gamiton nga murag taxi.
Pero pananglitan kung dunay kaso nga nahiabot
sa korte nga mag-involve ug disgrasya sa motor.
Unya remember in your transportation, the law
on transportation, nga the degree of diligence
required of a common carrier is different from
that of a private carrier. A common carrier is
presumed to be negligent. So, will this apply to
motorcycle used as habal-habal? So the court
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could take judicial notice that there are private
motorcycles used as common carrier. Ok?
Another. Supreme Court. Akusado gi charge ug
pushing. Ingon ang akusado, “ah di katuho-an ng
gisulti sa mga pulis oi nga namaligya ko dinha sa
daplin sa karsada. Di na katuho-an,” matud pa sa
accused. “Bakakon ng mga pulisa. Imposible nga
anha ko mamaligya anang daghang tawo nga
illegal man ng akong gibuhat, gawas lang kung
buang ko,” matud pa sa akusado. Ingon ang
Supreme Court, “ah the court could take judicial
notice that prohibited drugs ar sometimes sold
just like ordinary commodity. Usab pa ka?,”
Supreme Court. That is a public knowledge. Do
you agree? Nga ang kanang mga adis-adis dinha
sa inyo di gyud mahadlok, mag-injectionanay pa
dinha sa... magpasalipod lang gamay dinha sa
poste sa suga. Do you agree? Mga nursing!
Magpasalipod lag gamay. Kanang maayo kayo
magpasalipod, mu diretso lag hatag anang shabu
murag ampao!
Naay lugar dinha sa Carcar. Kinsay taga-Carcar
diha? Naay Sitio dinha, unsai ngan ana, Lomboy
ba na? Unsai ngan anang lugara dinha..? Nga
kanang mga mga motor dinha mu drop-by lang
mamalit ug shabu naa daplin sa karsada, mura
rag namalit ug ampao..!
Matod pas court, the court could take judicial
notice that prohibited drugs are sometimes sold
just like ordinary commodity. So kanang imung
pangatarungan nga “di ko buang nga mamaligya
nga daghang tawo.” Ah di na! That’s a shallow
excuse.
RULE 129
What Need Not Be Proved
SECTION 1 . Judicial notice, when
mandatory. — A court shall take judicial
notice, without the introduction of
evidence, of the existence and territorial
extent of states, their political history,
forms of government and symbols of
nationality, the law of nations, the
admiralty and maritime courts of the world
and their seals, the political constitution
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
and history of the Philippines, the official
acts of legislative, executive and judicial
departments of the Philippines, the laws of
nature, the measure of time, and the
geographical divisions.
...lahi ni sa foreign law.
3. Then admiralty and maritime courts of
the world,
4. the political constitution and history of
the Philippines,
5. the official acts of legislative, executive
and judicial departments of the Philippines.
Q: So, unsa mai mga official acts?
A: Example kanang sa Legislative: kanang
laws na ila gi-enact. Sa executive: example is
amnesty extended by the president.
Q: How about sa Judicial department, unsa
mai example sa official act?
A: The decisions of the SC. So, mao nang nga
ang judge gyud kinahanglan jud nga updated
sa decision sa SC. Just as the lawyers must
also be updated regarding the decisions of
then SC.
6. Laws of nature.
7. Measure of time
8. Geographical Divisions
So, those are the facts that courts should take
judicial notice.
Sec. 2 . Judicial notice, when discretionary.
— A court may take judicial notice of
matters which are of public knowledge, or
are capable to unquestionable
demonstration, or ought to be known to
judges because of their judicial functions.
Now, duna pud facts that the court has the
discretion not to take judicial notice. These are:
1. matters which are of public knowledge,
or
2. are capable to unquestionable
demonstration,
3. or ought to be known to judges because
of their judicial functions.
So, kung common ra gani nang
maong...kung public knowledge na gani na
the court has the discretion to take judicial
notice.
Example: existence of habal-habal. Dili pa
man na gi-recognize nang motor nga
gamiton ug murag taxi. Pero pananglitan
dunay kaso nga mu-abot sa korte nga mu-
involve ug disgrasya sa motor, remember
the Law on Transportation provides, the
degree of diligence required of common
carrier is different from that of private
carrier. A common carrier is presumed to
negligent. So, will this applies to
motorcycle used as habal-habal? So, the
court can take judicial notice that there are
private motorcycles used as common
carrier.
Another, akusado gi-charged ug pushing.
Ingon ang akusado, “ah dili katu-uhan ang
gisulti sa pulis oi nga namaligya ko diha sa
daplin karsada!”. Dili na katu-uhan matod
pa sa accused. “Bakakon nang mga pulisa,
imposible nga diha ko mamaligya sa
daghanag tawo nga illegal man nang ako
gibuhat...gawas lang kung buang ko”,
matod pa sa akusado. Ingon man ang SC,
“ah the court could take judicial notice that
prohibited drugs are sometimes sold just
like ordinary commodity”. Usab paka!? That
is a public knowledge, do you agree nga
kanang adis-adis sa inyo di gyud mahadlok,
mag-injectionanay pa diha sa atbang,
magpasalipod la gamai sa likod sa mai
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suga. Do you agree!? Mga nursing!!
Magpasalipod ra gamai...muderitso ra
hatag sa shabu murag ampao... naa diha sa
mai Car-Car naay sitio diha...unsa gali na
diha nga kanang motor mu-anha ra
diha...nga mu-drop by ra para mu-palit ug
shabu.
So, matod pa sa SC, this court can take
judicial notice that prohibited drugs are
sometimes sold just like ordinary
commodity. So, kanang imong katarungan
nga dili mamaligya sa daghang tawo...ah
dili na...that’s a shallow excuse!
Then, another, sa rape: matod pa sa
accused, “oi impossible na nga mahitabo
oi...di na tinuod nga naay rape kai daghan
mi diha mangatulog”. Kakuan mo sa mga
balay sa bukid intawon? Mao ang ila kusina,
mao ang ilang sala, mao ilanag
kwarto...mao nang naglaray diha. Mao man
mo sa inyo kai tagsa man mong kwarto,
manag-ilog pa jud sa katong naay aircon.
Ang balay tawon sa bukid...mao ilang
kwarto, mao ang ilang kan-anan, mao ang
ilang higdaanan...then ingon dayon ang
akusado (na ga-rape sa iya kalugalingong
anak), “ah din a tinuod oi kai naa jud ang
akong asawa, naa ang akong mga anak...
naglaray jud mi diha pangatulod, imposible
na nga mahimo nako”. Ingon man ang SC, a
rapist is not a respecter of time and place.
The court can take judicial notice that a
rapist is not a respecter of time and place.
Sec. 3 . Judicial notice, when hearing
necessary. — During the trial, the court, on
its own initiative, or on request of a party,
may announce its intention to take judicial
notice of any matter and allow the parties
to be heard thereon.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
After the trial, and before judgment or on
appeal, the proper court, on its own
initiative or on request of a party, may take
judicial notice of any matter and allow the
parties to be heard thereon if such matter
is decisive of a material issue in the case.
Now, the court can take judicial notice even
after trial. The court can take judicial notice
during trial, after trial, before judgment of
even on appeal. The appellate court can
take judicial notice on its own or motu
proprio or upon the request of a party.
When a fact to be taken as judicial notice is
discretionary the court may conduct a
hearing not for the purpose of presentation
of evidence but for the parties to argue
whether it is proper for the court to take
judicial notice. The parties will argue on the
propriety for the court to take judicial
notice.
Sec. 4 . Judicial admissions. — An
admission, verbal or written, made by the
party in the course of the proceedings in
the same case, does not require proof. The
admission may be contradicted only by
showing that it was made through palpable
mistake or that no such admission was
made.
Judicial admission...we had discussed this
already.
Q: Just the same what do you mean by
Judicial admission?
A: An admission, verbal or written, made by
the party in the course of the proceedings
in the same case (TAKE NOTE), does not
require proof.
So, as we had said last meeting, if there are
two cases pending in different courts or
even on the same court involving the same
parties (for example). Now, the admission
of the other party made in another case
pending in the other court cannot be
considered as judicial notice as far as this
case are concerned. For example
nahinumdom mo sa criminal case nga
pwede man nga dunay civil case nga i-
separate ug file. Nahinumdum mo? So
pananglitan ang defendant nimhimu didto
ug admission, now kanag iya dmission didto
din a mahimo or maconsidered nga judicial
admission dri. Kai ang judicial admission
kinahanglan in the same case.
Now, yu will ask nganong ang admission
didto dili man maconsidered nga judicial
admission nga korte man ghapon to
didto...gibuhat man to niya didto sa korte?
That admission although made in court is
just considered as extrajudicial admission.
Q: Unya mangutana nasad mo, unsa diay
kala-inan sa judicial admission ug
extrajudicial admission?
A: JUDICIAL ADMISSION does not require
proof, does not require evidence but in
EXTRAJUDICIAL ADMISSION if you want to
prove that such an admission was made by
the party...you present evidence, then
proof. In that such situation, the accused
for instance made an admission in that case
pending in different court...you present the
transcript of the stenographic notes
showing that the defendant who is the
accused in this case made such an
admission. The court cannot take judicial
notice. And even granting that case is
pending in the same court, but two
different cases, that cannot be considered
as judicial notice. Kai the same case ra jud
kai kung didto sa laing case...that cannot
be considered as judicial notice.
Q: Now, pangutana: pananglitan ang
defendant ni-file ug answer duna siyay
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admission: naka-admit siya, pananglitan wa
siya maka-specifically denied under oath
ang usa ka-actionable document...unsai
epekto?
A: Deemed admitted!! Sa ato pa that is a
judicial admission.
Nakamatngon man ang counsel. So, the
counsel filed an amended answer, gitarong
jud niya ug denied under oath (specifically
denied under oath)
Q: So, pangutana, what will happen now to
the original answer?
A: We have learned that an amended
answer will supersede the original answer.
Q: What will be the evidentiary value or use
of the original answer? Will that be
considered as judicial admission?
A: Now, the answer is no more. According
to experts, according to different authors of
the law on evidence the original answer or
the original pleading which has been
amended is not anymore considered as
judicial admission but nevertheless it could
be still considered as extrajudicial
admission.
Q: So, what does it mean?
A: if you want to prove such admission then
you present it in evidence.
Q: How are going to do it?
A: You mark it as your exhibit and
thereafter offer it as your evidence.
Q: Now, sa criminal cases unsa mai example
sa judicial admission?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
A: Plea of guilty during arraignment,
admission sa pre-trial, unya admission
during trial. Unya hinimdumi jud to ninyo
nga stipulations during pre-trial: in order to
be binding and signed by the accused and
his counsel.
RULE 132
PRESENTATION OF EVIDENCE
Ako na ni gisulti, ako nasad balikon: In the study
of evidence there are two important areas:
1. Admissibility of evidence; the rule on
admissibility of evidence. Mao ni ang grounds sa
imong objections.
2. and the presentation of evidence
A. EXAMINATION OF WITNESSES
SECTION 1 . Examination to be done in open
court. — The examination of witnesses
presented in a trial or hearing shall be done
in open court, and under oath or
affirmation. Unless the witness is
incapacitated to speak, or the questions
calls for a different mode of answer, the
answers of the witness shall be given orally.
This is regarding examination of witness. Kanang
witness nga imu gi-representa didto sa korte mu-
undergo na siya ug examination...pareho pud
niyo. Unsa mai examination na i-undergo? Prelim,
midterm, finals, mock bar...mao na? Dili. So unsa
man? Direct, cross, re-direct, re-cross.
Naghisgot man ta ug crim pro...ang katong
presentation of evidence: una ang prosecution,
musunod ang defense, rebuttal, sur-rebuttal.
Kanang primero pajud nimu ug presenta mao
nang gitawag nga evidence in chief. Unya after
the prosecution presented his evidence in
chief...mupuli dayon ang defense in order to
present its evidence in chief pud. Kung mahuman
ug present ug evidence ang accused or
defendant mu-balos pud ang prosecution ug ang
plaintiff pero ang iyaha limited na (REBUTTAL)---
ang iyaha ipresentar nga ibedensiya kato lang
mu-refute or mu-rebut...limited nalang siya,
kadto nlang mga points nga ni-disagree siya sa
girepresentar sa defense. Unya mahuman ang
rebuttal, mu-SUR-REBUTTAL pud ang defendant
pero ang iya sur-rebuttal limit ra pud sa rebuttal.
… kato lang murefute o murebut, mao nang
gitawag ug rebuttal ilaha limited nlng sila, kato
nlng mga points nga mudis.agree cya sa
gipresentar sa..gidis.agree niya ang presentation
sa.. ang ebidencya sa defense or sa defendant..
Unya human ug rebuttal mu.sur-rebuttal pd ang
defendant. Pro ang iyang sur-rebuttal limited ra
pd sa rebuttal, sa point point nga gi.raised during
rebuttal.
The presentation of the witness.. d ba naay direct
examination, dunay cross.. unsa to direct, cross,
re-direct, re-cross. Kana gud direct examination
sa usa ka witness, gitawag na cyan ug
examination in chief. Ako na gikuan para d mu
malibog, lahi tong evidence in chief lahi pd tong
examination in chief.
RULE 132
Presentation of Evidence
A. EXAMINATION OF WITNESSES
Section 1. The examination of witnesses
presented in a trial shall be done in open
court, so open court. So kaneng atoa korte pa
ning atoa ron dle na nato e.sira, e.open jd nato
nah, kai kung imung nang e.sira that would be a
violation of the rules kai close court cya. Sakto ba
nang maong interpretation? Ha? Unsa mn d i
nang open court d i? Meaning it is open to the
public or to any person who is interested to
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observe the proceedings. Except of course there
are cases which are close to the public.
And the witnesses while testifying must be
under oath or affirmation. So in other words,
kahinumdum mu atong qualifications sa witness?
The ability to observe, the ability to remember,
the ability to relate, so kinanglan ka.observe ka.
D gani ka ka.observe d ka kawitness. Nagliraw
liraw ra nah imung mata d nah mu.absorbed
imung nakita, blanko sa ato pa you have no
capability to observe. Ability to observe, ability to
remember. Mka.observe ka pro wa mn nasulod sa
utok. Ability to observe, remember, relate. Mao
ni… ika.upat unsa mn? Ability to recognize the
duty to tell the truth. So mao na nga ang witness
before testifying must take his oath. Do you
swear to tell the truth, the whole truth, and
nothing but the truth. And after swearing then
you can now tell a lies. (hahaha!) telling lies now
start.
Unless the witness is incapacitated to
speak, or the questions calls for a different
mode of answer, the answers of the witness
shall be given orally. Sa ato pa ang answer sa
witness dle na pareho ug midterm ug finals nga
ang question written. Unya ang imu sd answer
written. Ang sa witness didto sa korte ang
question sa abogado oral, ang answer pd sa
witness oral although recorded, dunay nasuwat.
And the manner of testifying, the witness should
testify in the form of question and answer. Lisod
lau ni cya pasabton sa usa ka witness, labi na
kung d ka sweto sa korte, lisod kau ipasabot.
Nganu mn? Kai more than 90% sa mga witness
nagtoo nga kung mustorya cla didto, inig sugod
diretso na daun human. Sugod diretso human.
Wa sila nasayod nga ipa.agi ug question and
answer. Mao ni cya usa nga challenge sa
abogado, ang pag.explain ngadto sa witness nga
ang iyang testimony didto ipa.agi ug question
and answer. Kai d na nimu ma impress sa
witness, o di nimu mapasabot ang witness nga it
is in the form of sworn questions and sworn
answers possible nga puros na objection didto sa
court. Because the witness is not allowed to
narrate. Imu na cyang ingnon nga kung unsa
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ipangutana mao ra pd tubag. Pangutan.on gani
ka pila imung edad, edad raj d imung itubag
ayaw pakapini ug ngalan. Ngalan ra gani
pangutana, ngalan ray itubad ayaw pakapini ug
edad.
Now, what will happen if the witness testifies
without taking an oath? Unsa mn mahitabo?
Nahitabo ni sa usa ka kaso. Nakalimut ug
pag.paswear sa witness. So nagtestigos ang
witness. Oi, pagkahumn ni.ingon mn daun ang
counsel… any cross? No cross your honor.
Nahibung ang korte. Unya pagkahuman nifile
daun ug demurrer on the ground that the
testimony of the witness should be deleted on
the record on the ground that it was taken
without any oath. Unsa mn ingon sa SC? Ah…
you are estopped because you did not object,
you should have objected before… or with each
of the questions during the examinations is
asked, you should have objected on the ground
that the witness has not taken any oath. So
kanang pagtake oath sa witness that is part of his
qualification. So mao nang bata, kinahanglan ang
bata sa d pa allowed ug testify , kanang bata
dilikado manang bata, kinahanglan mangutan sa
ang jugde ana kung nakasabot ba ni cya sa iyang
oath. Sa dili pa pangutan.on ang bata bahin sa
nahitabo. The court must satisfy that the child
can observe, can remember and can relate and
knows the duty to tell the truth. So for example
mangutana ang judge, kanang two yrs old na
bata dilikado kau nah. Kanang, how old are you
now? Show me your fingers? Ni.ingon ang bata
ana.. ok, where is your nose? Where is your
father? Tudlo daun. Where is your mother? Are
you in school already? Give me the name of your
teacher. Who is your teacher?.. unya kablo sa mu
relate. Beh kung mamakak ka beh mu.unsa mn c
Lord beh? mu.ingon masuko c Lord. Unsa mn ka
kung masuko c Lord? Ah, ilabay didto sa kayo. So
if that is the answer of the child, the child now
can observe, can remember, kai khblo mn cya
knsa iyang teacher so the child can remember d
b, then the child can supply the name of the
teacher then she can relate. Nan kai mahadlok
mn d i cya ug mamakak kai ihog mn cya sa
kayo… ok so mao na cya nuh…
Then the proceeding shall be recorded. By the
way, the SC now… as of now the testimony of the
witness shall be in the form of questions and
answers, short questions and answers. So for
example, sometime on… where were you on Jan.
2, 2013 at or around 9 o’clock in the morning. For
example nitubag ang witness I was at that time
in carbon. Why were you in carbon market at that
time? Follow.upon na pd pagkahumn ug tubag.
While you were in carbon market at that time
buying vegetables what usual incident occurred if
any? Ok… so it shall be in the form of questions
and answers. Of course except if summary
procedure. Because as we have learned, during
the examination there is no questions and
answers. All you have to do is let the witness
identify his affidavit. Upat ra ka questions. In
connection with this case do you recall that you
execute an affidavit? O first question, Yes.
Showing to you an affidavit, is this the one?
Second question, yes. Appearing at the bottom is
the signature in the name of Juan dela Cruz. Is
this your signature? Yes, that is my signature? 3 rd
question. Before you affix your signature, have
you read and understand the contents of your
affidavit? Yes, and do you confirm and affirm the
truthfulness and veracity of the allegations of
your affidavit? Yes. That’s all your honor, my
witness now is ready for cross examination. As
simple as that. Pero ayaw mu kabalaka kai dunay
bag.o nga circular ang Supreme Court, gitawag
ug judicial affidavit rule. Ok you must have a
copy of this, Administrative Matter 12-8-8-SC.
Now, unsa mn naa aneng judicial affidavit rule?
Now, diri sa judicial affidavit rule, d ba ato mn
tong gi.ingon ganina nga kining in the form of
questions and answers d b? diri sa judicial
affidavit rule for those cases cognizable by first
level court, criminal cases cognizable by 1 st level
courts the parties are required to submit judicial
affidavit in the form of questions and answers.
Mura kag nagconduct ug direct examination.
Unya tanan nga mga dokumento nga e.identify
sa witness e.attach sa affidavit. And you are
going to submit this during pre-trial. During the
trial all you have to do is to let the witness
identify, pareho ra adtong sa summary
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procedure. Although kadtong sa summary
procedure d lang to judicial affidavit, simple
affidavit to. Kani cya mas koti. Nganu mn? In the
form of question and answer. Ka kita mu anang
sa pulis? Kanang sa pulis ba nga mufile cla ug
kaso didto in the form of question and answer,
ayaw mu malupig sa pulis. Katong naghandle ko
ug practice court, naa koy estudyante mas maau
pa muhimu ug affidavit ang pulis. Ayaw mu ana
oi kai graduating na mu sa law, mas antigo pa
ang pulis nga wa gani units sa law.
Okay… now, Judicial affidavit ha you must secure
a copy, apil ra ba ni sa inyong bar. Sagdi lng kai
simple ram n ning judicial affidavit, it requires the
parties to prepare an affidavit in the form of
questions and answers, unya e.attaach didto…
unya it shall be subscribed and sworn to by the…
Jurat ba sa abogado… Ang mga piskal
nagreklamu ane kai dghan baya na mga kaso
ang piskal, hasta pd ang PAO. Pero ang
nagreklamo jd… ah kanang PAO anad mn na ug
robo2 ang PAO. So and nagreklamo ane ang
piskal kau dghn kau cla ug buhatonon. So sa
criminal cases ra ni. Pero bsag wa pa ni cya,
kaning maong rule, ang mga parties pwd
magsabot nga ang ilang mga witness mutestify
pina.agi ug affidavit para madali. Ug unsay mn
purpose sa SC nganu mn ning gi.in.ane mn ni? In
order to speed up the proceeding, because just
imagine one witness in direct examination
usahay mutake ug how many days. Pananglitan
krn nag direct examination, labi na jd nang
abogado nga wa jd napreparar, magyangod
yangod pa unsay sunod nga question. Direct
examination, nagyangod yangod pa unsay sunod
nga question. Wasting time. Imuha gd nang
witness, unsa mn buhaton ana? You prepare,
prepare ka daan ug mga questions. Ayaw salig
ana imung memory, labi na ug mka.kontra ka ug
abogado nga mag.cge ug object mawagtang ka.
So prepare questions. Prepare daan ug
pangutana. Prepare draft...
So prepare questions, prepare daan. Unya
mastera daan,pagbuhat ug draft unya I rehearse
daan nang imong witness. Ok so proceedings has
to be recorded, assignment ninyo na,you secure
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a copy of that. By the way going back to judicial
affidavit subj to cross examination by the adverse
counsel na siya.
Unya hinumdumi, nga kanang testimony sa
witness bisan pag siya mismo maoy ni testigos
para sa iyang kaugalingon , unsa may tawag
nimo ana kung siya ni testigos para sa iyang
kaugalingon, diba tawgon na nimo ug self
serving? Pero kung niingon ang SC in several
decisions, “testimony given in open court is not
considered self-serving” bec it is subjected to
cross examination. The testimony of a witness in
court cannot be considered self-serving since he
is subjected to cross examination,meaning the
term self-serving is only limited to out of court
statements.
By the way ang rule, a witness testifies in open
court diba? But are there exceptions? Are there
instances when a witness testifies outside the
court, yes deposition perokanang deposition
hinumdumi just in case lang na, just in case the
witness is not available. Nahinumdum mo sa
Crim procedure, Rule 119, katong conditional
examination,do you remember? Wa mo
kahinumdum, hinumdumi ninyo [hehehe]
Then another, kanang dunay ocular inspection.
You read this case of
 Pp vs. Estenzo 72 SCRA 429
 PP vs delos Reyes 12/27/2002
This is to let you understand the importance
of questions and answers . Kaning mga
kasuha nga akong gipang cite ninyo, wala ni
siya mu follow sa question and answers unya
tan-awa kung unsay gisulti sa SC.
Lets now go to Sec 3, Rights and Obligations
of a Witness [RULE 132]
SEC. 3. Rights and obligations of a
witness.—A witness must answer
questions, although his answer may tend to
establish a claim against him. However, it is
the right of a witness:
(1) To be protected from
irrelevant, improper, or insulting
questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer
than the interests of justice require;
(3) Not to be examined except
only as to matters pertinent to the
issue;
(4) Not to give an answer
which will tend to subject him to a
penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which
will tend to degrade his reputation,
unless it be to the very fact at issue or
to a fact from which the fact in issue
would be presumed. But a witness
must answer to the fact of his previous
final conviction for an offense.(3a, 19a)
Now claim here refers to a Civil Case,so he
has to answer a question, however the
witness has the ff., rights
(1) To be protected from irrelevant,
improper, or insulting questions, and
from harsh or insulting demeanor
Sa ato pa ground ni for objection so for ex.,
you are now presenting a witness unya the
adverse counsel is harassing your witness,
for ex., iyang tudlo hapit nalang muabot
didto sa mata sa…is it not Mr. Witness
dadadada, hapit nalang unya dako kaayong
tingog “is it not” [mimicking and changing his
voice,tanan nangatawa hahaha]. You can
object now, you can object nuh? The right of
the witness from harsh and insulting
demeanor. You can object and request the
court to admonish the counsel not to harass
your witness, ang problema kung ang judge
mismo maoy mu-harass. Mao nay gi-ingon, if
the question is improper, you can say
“Objection your honor the question is
irrelevant,improper or insulting”.
Then another : Not to be detained longer
than the interests of justice
require.>>>Dugayon jud nimo pag cross
examine. Hasta muabot nlang ug lima ka
adlaw imong cross examine, not to be
examined except only as to matters pertinent
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to the issue. Mao na kelangan prepared ka sa
imong cross examination, sagad anang
mangutana anang mag irrelevant questions,
although naa pud na sa direct examination,
sagad ana sa cross examination. Nganu
man,bec the lawyer is not prepared.
Not to give an answer which will tend to
subject him to a penalty for an offense
unless otherwise provided by law; or
This is what we call as right against self-
incriminating questions.Unya take note asa ng
limitations anang self-incriminating questions,
diba.Dunay kaso nahi-abot sa SC karaan ning
kasuha, the accused was charged w/ falsification
of a public document, deed of sale gud na
falsified, unya the accused, he took the witness
stand and testified for himself in his favor. When
he testified, he denied to be the author of the
falsification, now the public prosecutor, bec the
accused testified for himself, denied to be the
author of the falsification, the public prosecutor
when he cross examined the accused, asked the
accused to give a sample of his signature.So
miingon ang public pros., you said that the
signature appearing on the questioned
document, I have here a piece of paper, could
you please give a sample, a specimen of your
signature. Now defendant’s counsel objected in
violating the right of the witness against self-
incrimination. Duna man goy kaso sa SC na
gidesisyunan na kanang pag affix sa imong
signature if purely mechanical act or mangayo ug
sample sa imong hand writing is not considered a
purely mechanical act. That requires the use of
your intelligence. Bisan na naa na na rules,gi –
invoke na siya sa accused ni ini. Objection your
honor, the question calls for an incriminating
answer. Now the question is, in that case can the
accused be compelled to give a sample of his
signature? Accdg,to SC YES, in that particular
case, why bec the issue of the case is the
signature of the acused himself. And accdg., to
SC,since the accused testifies and denies and
took the witness stand, it is incumbent upon the
prosecutor to incriminate him. Unsaon man diay
pag pa-priso mao manay purpose sa,ingon sa SC
unsa man diay purpose sa prosecution mao man
ang pag incriminate niya, unya mao man pud
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
ang gilalisan kung iyaha ba tong signature. So
ingon sa SC “since he took the witness stand and
even testified on the matter of the handwriting
he thereby waive his right against self-
incrimination on that issue. Hence he could be
cross examined thereof just like any other
witness, that the ruling of SC in the case of
“Beltran vs. Samson 53 Phil 570”. Unya
hinumdumi pud tong ruling sa Chaves vs CA, lahi
pud ning kasuha, nganu man unsa maning
kasuha? This case has something to do w/ the
right of the accused not to take or to take the
witness stand. Bec in that case the SC said that
the accused cannot be compelled to testify
against himself. So he cannot be compelled to
take the witness stand but if he voluntarily takes
the witness stand, then he is deemed to have
waived his right not to take the witness stand.
Unya unsa maning “unless otherwise provided by
law”? Kana bitawng nay mga state immunity
kanang mga state witness, di man ka makarefuse
bec that is part of your recognition having been
discharge from the case, to testify against the
accused and to admit your complicity, to admit
your liability to the charge; although you are now
immune bec you are now discharge from the
charge. Nahinumdum mo sa bribery? Nga katong
muhatag ug bribe pwede ma exempt mao
manang entrapment, muhatag ug bribe unya i-
trap. Ex.,mangayo kag bribe unya katong imong
gipangayuan mipyait,misumbong didto sa
NBI,paghatag trap aw kung imo tong striktuhon
katong nihatag apil to corruption of public officer
pero dunay exception ni ana, dunay balaod na
nag exempt ana.
Then, (5) Not to give an answer which will
tend to degrade his reputation, unless it be
to the very fact at issue or to a fact from
which the fact in issue would be presumed.
But a witness must answer to the fact of
his previous final conviction for an offense.
This is about the right against self-incrimination
unless it refers to the very fact in issue. But a
witness must answer to the fact of his previous
final conviction for an offense.
So the duty of the witness is to answer the
question. Can the witness object?
Nakahinumdum ko, nag examine kog policenga
barrister unya dili siya mutubag, imbes mutubag
siya,mu-object.Unsa may imong buhaton ana,
ha? Puspusan nimo? [hehehe] You ask the court
to remind the witness that his duty is to answer
not to object the question bec., it is the counsel,
especially if you are cross examining a lawyer
kalimot sa iyang katungdanan, nakalimot nga
witness diay siya na di siya abugado,imbes mu
answer siya sa question mu-object na hinuon.
Remind him that he is a witness and that he is
there in the witness stand to answer a question.
If the question you raised is objectionable, it is
not for him to object but for the counsel. If the
counsel will not object, ah waiver. Mao nay
problema,luoy ka yang witness gikulata nag
pangutana pakkkk, bisag mga irrelevant,tan-aw
tawon sa attorney,torney luwasa tawn ko
[hahaha]unsaon man nga kuan man miyembro
man sa silent committee. Unya wa pud siya
kahibaw unsay grounds sa iyang objections, mao
kinahanglan ninyo hinumduman ang mga
grounds sa objection. Kana ra bang mga kliyente,
usahay ang basihan ana dili ang imong gisulti
basta kay nakatingog jud ka. Suway anang
observe mu inug hearing sa court, dunay
abugado dinha kusog mu object “objection your
honor” ana dayun ang court, “over-ruled” tan-aw
dayun siya sa iyang kliyente [si judge ga-
yango2x]…bisag over-ruled ha [hahaha], over
ruled ha, over-ruled iyang objection [commotion
sa classroom hahahah]. Wa man to kibaw ang
kliyente unsa tong over-ruled. Okay….Mutingog
mu pero ayaw sad palabihi ug tingog to the
extent na mahimo na kang obstructionist.
Purupareho ran a ug sud-an, balik2x sum-od
ayaw jud…okay
SEC. 4. Order in the examination of an
individual witness.— The order in which an
individual witness may be examined is as
follows:
(a) Direct examination by the
proponent;
(b) Cross-examination by the
opponent;
(c) Re-direct examination by the
proponent;
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(d) Re-cross-examination by the
opponent.
Unsa toy another term for direct? Examination in-
chief.
SEC. 5. Direct examination.—Direct
examination is the examination-in-chief of a
witness by the party presenting him on the
facts relevant to the issue.
You learn thismore in your trial technique or in
your practice court. Duna nay technique and pag
conduct anang direct examination, duna nay
rules, dili na ingon. Pareho ra gud na,peras sa
unang mga bata pa ta tan-aw tag
sinumbagay,pero adto ka sa boxing gyud, duna
nay mga technique ana. Bisag unsang duwa-a
duna na, basta maka-itsa, dili na…duna nay mga
technique diha aron ka mudaug.Naa nay mga
screening [sa daw?], kung wa ka ana di nimo
gamiton imong utok, aw di ka mudaug.
6. January 28, 2013, 7th part
…. Upon the termination of the direct
examination. It could be right now. For example,
the witness now is done with his direct
examination, the court can now require you for
cross.
The rule says that the cross examination shall be
conducted upon the termination fo the direct
examination. And what would be the scope or
coverage of the cross examination? Any matter
stated in the direct and all those matters
connected therewith.
It is to test whether the witness is telling the
truth or WON he is biased or WON interested in
the outcome of the case, and other relevant facts
related to the issue.
Example, murder case. Testigos ang mama or
parente sa accused. The lawyer will ask if there is
interest in the case even it is not related to the
case. It is to be establish the interest of the
witness whether the witness is paid or what. All
possible motive of the witness should be exposed
to the judge. Cross-examination.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
By the way dunay gamay na deperensiya ang
coverage sa cross-examination kunga ng imo gi
cross examine is accused or ordinary witness.
Kung ordinary witness, gani he can be asked on
all matters mentioned in the direct and all
matters connected thereto, even not mentioned
in the direct examination.
Pero cross-examination in the accused is limited.
Because under Rule 115, the cross-examination n
the accused must be limited only to the matters
coverd in the direct examination.
Purpose of the cross-examination si to destroy, to
discredit the witness.
“Sec. 7 . Re-direct examination; its purpose and
extent. — After the cross-examination of the
witness has been concluded, he may be re-
examined by the party calling him, to explain or
supplement his answers given during the cross-
examination. On re-direct-examination, questions
on matters not dealt with during the cross-
examination, may be allowed by the court in its
discretion. (12)”
Purpose of the cross-examination is to destroy, to
discredit the witness.
In Re-direct, the purposes is to rehabilitate what
has been destroyed during cross. If walay
destroyed, ayaw nalang re-direct. Coz dili
compulsory ang re-direct.
If witness failed to identify the accused, there is
no cases. Identification is necessary. Pero duna
pud nah siyay pasayon na buhaton ana. Kanus-a
man? During pre-trial you seek admission from
the defense that the accused as the same person
charged in the offense. If admitted, no need for
the witness to point-point him.
Suppose questions are asked during re-direct, on
matters not dealt or taken during cross-
examination? Should the court allow that? The
court has the discretion to allow that.
DISCRETION. The only consideration is to avoid
miscarriage of justice.
“Sec. 8 . Re-cross-examination. — Upon the
conclusion of the re-direct examination, the
adverse party may re-cross-examine the witness
on matters stated in his re-direct
examination, and also on such other
matters as may be allowed by the court in
its discretion. (13)”
Question: Can the court cross-examine? Judge?
Generally, the court is only allowed to ask
clarificatory questions. Pero mao ra nah gud.
Naay case, the accused testified in his behalf.
During cross-examination, the private
prosecutors were able to ask only 3o questions.
But the justices asked questions that the number
of which reached 150. Ingon SC, grabe kalro na
kaayo na biased na mo. Di pwede. SC acqiotted
the accused absed on reasonable doubt.
Tabuena vs. Sandiganbayan, 268 SCRA 332.
The SC said that judges are not mere referees.
They should have as much interest as the
lawyers.
Could you object question of the judge? Yes you
can object, but if ever you object you do it
courteously, politely. (Forgot the citation.)
“Sec. 9 . Recalling witness. — After the
examination of a witness by both sides has been
concluded, the witness cannot be recalled
without leave of the court. The court will grant or
withhold leave in its discretion, as the interests of
justice may require. (14)”
Generally, the witness cannot be recalled. In the
interests of justice, the court may allow him to be
called back before the court to answer question.
“Sec. 10 . Leading and misleading questions. — A
question which suggests to the witness the
answer which the examining party desires is a
leading question. It is not allowed, except:
(a)On cross examination;
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(b)On preliminary matters;
(c)When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble
mind, or a deaf-mute;
(d)Of an unwilling or hostile witness; or
(e)Of a witness who is an adverse party or an
officer, director, or managing agent of a public or
private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It
is not allowed. (5a, 6a, and 8a)”
Generally, leading question is not allowed,
especially during direct examination. It is allowed
during cross-examination.
What is a leading question? It is a question which
suggest to the wtness the answer of the
examining party. It is not allowed.
However there are instances, that the same may
be allowed:
a) On cross examination;
(b) On preliminary matters;
Kana wala pa magtouch sa mga elements sa
cause of action.
For example, mangutanana;
On Jan. 5 do your recall, where were you?
Naswerabke ba anh siya ug yes or no? Leading?
Overrule, preliminary matters.
Dili jud mangutana ug leading question ari nuon
sa direct mangutana nun ug leading question. So
kailangan prepared jud ka.
Then another on PRELIMINARY MATTERS.
Unsa ma nang preliminary matters?
Kanang wa pa mag touch ba sa issues sa kaso.
Wa pa nag touch sa elements sa crime. Wala pa
mag touch sa elements sa cause of action. So for
example mangutana, “on January 5, do you recall
where were you?” Answerable by yes or no ma
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na di ba. “Objection your honor, leading.” Unsa
man e sustain nimu or overrule? Overrule. Why?
Preliminary Matters.
Then another when there is difficulty in
getting direct and intelligent answers from a
witness who is ignorant, kana bang lubad. Liman
ka atong dunay nag cross examine, kani nahitabu
jud ni, gipangutana ang witness sa cross
examination sa abogado:
LAWYER:
“Now, Mr. Witness you claim that you have seen
the accused to have fired at the victim. And you
also claim that you were able to witness that
incident because you were relieving yourself, do
you remember how you told the court?”
WITNESS:
“Yes. Sir.”
LAWYER:
“Please tell the court about how many meters
were you at that time from where you were
relieving yourself to the place where the accused
fired at the victim?” “Manong kining pila man jud
ka ka metros ato sa imung bana bana sa katong
diin ka nag pungpung ug sa kadtong lugar diin
nahimutang tong akusadko, nakit-an man jud
kaha nimu nga mao juy gapusil?”
WITNESS:
“Ah, kinsa may malibang nga magdag
metrosan.”
So if the witness is ignorant, it means the
counsel cannot get intelligible answer even on
direct, if the counsel cannot get intelligible
answer then leading question is allowed.
Then another a child of tender years
leading question is allowed even during direct.
Then if witness is feeble-minded or deaf
mute.
Another, unwilling or hostile witness.
Unwilling kay kana nang witness nga magpagahi
gahi ngadto sa Korte. Murag kanang babay bah
pa gahi gahi. Hostile witness kana bang kunuhay
magpa antos.
Then a witness who is adverse or an
officer or director of a managing agency of a
public or private corporation or partnership which
is an adverse party. Now can you make the
adverse party as your witness? For example ako
roy defendant unya ako kang gikiha, can I make
you as a witness? Can I call you to the witness
stand? YES. But remember ako kang kontra so I
cannot expect favorable answers from you. Labi
na if I use open questions. So that it would be
easier for me to get favorable answers the rules
required me or allow me to ask leading
questions.
So adverse witness ug hostile witness.
Gipangutana ni sa bar. Distinguish hostile
witness from adverse witness? Adverse witness
meaning he is the adverse party, he is a party to
a case. Whereas a hostile witness, he is not a
party to a case but he is not to testify in your
favor.
Unya when we say witness of the adverse
party remember the ruling of the Supreme Court
in the case of Chavez vs. CA, 24 SCRA 363.
Kahinumdum mu atong kasoha? Wherein the
prosecution called to the witness stand the
accused himself as his second witness. The
accused objected. Can the court compel the
accused to testify to take the witness stand in
order to testify in favor of the prosecution? I
have discussed that already.
MISLEADING QUESTIONS
A leading question is generally not
allowed but there are exceptions. But a
MISLEADING QUESTION is not allowed at all
times. Gipangutana sab ni sa bar. Distinguish
leading question from misleading question.
When can you say that a question is misleading?
A question is misleading (1) when a
question is asked which assume as true a
fact not yet testified to by the witness.
Kana bang wala pa gihisgutan ba sa witness,
mahitabu ni siya during cross.
Example murder.
DIRECT EXAMINATION:
Ingun ang prosecution witness during the direct:
“the accused stabbed the victim while sleeping.”
CROSS EXAMINATION:
Ingun ang examiner, “Mr. Witness you said during
your direct examination that prior to the stabbing
incident the victim and the accused where having
a heated argument.”
JD: Objectionable na na. Why? Because you are
assuming as true a fact not testified to by the
witness. There was no testimony made by the
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witness during his direct that there was an
argument. So that would be misleading.
Another is (2) a question which calls
for an answer which is contrary to what the
witness has earlier testified. Example:
DIRECT EXAMINATION:
Murder unya mu ingun ang accused self-defense
unya duna siyay wintess nga mu ingun nga nag
sinumbagay unya gi dunggab ang accused mao
to nga iyang pud gi puspusan nikuha siya ug
pugha, patay.
CROSS EXAMINATION:
Mu ingun ang public prosecutor now you said
during your direct examination that the victim
before the incident was just sitting down.
JD: That would be objectionable. Why? That is
contrary to what the witness has said during the
direct because the witness during direct testified
that there was an argument that lead to the
attempt to the life of the accused.
So kanus-a to mahimung misleading? (1)
Assuming a fact not testified to by the witness or
(2) Contrary to what the witness has said.
SEC. 11. Impeachment of adverse party’s
witness. – A witness may be impeached by
the party against whom he was called, by
contradictory evidence, by evidence that
his general reputation for truth, honesty, or
integrity is bad, or by evidence that he has
made at other times statements
inconsistent with his present testimony, but
not by evidence of particular wrongful acts,
except that it may be shown by the
examination of the witness, or the record of
the judgment, that he has been convicted
of an offense.
This is important! Because this is about
impeachment of adverse party’s witness. What
do you mean by impeachment? Impeachment
meaning how are you going to discredit the
testimony of the witness. Kana man gong
testimony of the witness matud pa sa decision sa
Supreme Court, testimony to be believed must
not only come from the mouth of a credible
witness but must be credible in itself. Dili lang
kay magagikan sa witness ka katuhuan pero
kinahanglan ang iyang storya mismo katuhuan.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Pananglitan ang mu testigos, MAYOR. Witness: “Yes.”
Credible? Aw credible mayor gud na. Pero ang Lawyer: “Nganung kaila man ka niya?”
pangutana kung ang iyang storya mismo Witness: “Silingan na namu.”
katuhuan ba? Unsa to? To be believed, Lawyer: “Because you claim to have known him
testimony must not only come from the mouth of for a long time, what is his reputation in your
a credible witness but the testimony itself of the baranggay?”
witness must be credible. Witness: “Kana siya ilado gyud na siya sa pagka
Unya unsaun man nimu pag determine bakakun. Sa usa ka gatos isulti niya noh ocenta
whether the testimony of the witness itself is y uno ang bakak. Ilado na siya pagka but-buton.”
credible? It must be in accordance with ordinary 3. By evidence that he has
human experience. made at other times statements
Pananglitan mu ingun ang Mayor, “Ah nakakita inconsistent with his present testimony.
jud ko sa pag dunggab.” Meaning by prior inconsistent
Unya gipangutana siya, “Unya mayor ni dagan statements. We will discuss further on this sa
ka?” Sec. 13.
Mayor: “Aw, wa gyud ko mudagan ui, mao kita 4. And that he has been
gyud ko nga iyang gi rakrakan.” convicted of an offense.
Lawyer: “Pila man ang destinasya nimu mayor So there are 4. Contrary evidence,
gikan sa pagpusil?” evidence that his general reputation for truth,
Mayor: “aw, mga 5 meters ra ko.” honesty, or integrity is bad, evidence that he has
Lawyer: ”Unya wa jud ka mudagan bay?” made at other times statements inconsistent with
Mayor: “wa jud.” his present testimony and that he has been
JD: Ah, that is contrary now to ordinary human convicted of an offense.
experience. Why? Under ordinary human But evidence of particular wrongful acts
experience unsay buhaton nimu? Dagan jud. is NOT allowed. Meaning he cannot be
By the way ang mu impeach ana ang impeached by a particular wrongful act. Unsa ma
adverse party. You are not allowed to impeach na? Kana bitaw wa siya ma convicto. That
your own witness. cannot be allowed.
There are 4 ways of impeaching the 8. January 28, 2013, last part
credibility of a witness.
1. By contradictory evidence February 1, 2013
Contradictory evidence means you are February 1, 2013, 1st part
going to present another witness that will
contradict his testimony. It could be by another B. AUTHENTICATION AND PROOF OF
witness or by his own testimony which is DOCUMENTS
contradictory to what he said.
2. By evidence that his
general reputation for truth, honesty, or Sec. 19 . Classes of Documents. — For the
integrity is bad purpose of their presentation evidence,
Mu ingun ka, present kag ebidensya, nga documents are either public or private.
kana siya ilado sa pagka bakakon. You show
evidence that his general reputation for truth, Public documents are:
honesty or integrity is bad. For example ikaw
accused mu present kag witness nga (a)The written official acts, or records of
magpamatuod nga katong witness kunuhay sa the official acts of the sovereign authority,
prosecution didto sa inyung barrio ilado gyud to official bodies and tribunals, and public
siya sa pagka bakakon. officers, whether of the Philippines, or of a
Lawyer: “Kaila ka ni Juan de la Cruz?” foreign country;
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(b)Documents acknowledge before a notary
public except last wills and testaments; and
(c)Public records, kept in the Philippines, of
private documents required by law to the
entered therein.
All other writings are private.
Continuation...
...So, kinahanglan kabalo na mo kung unsai jurat
ug unsai acknowledgement.
Then another public document is Public
records, kept in the Philippines, of private
documents required by law to the entered
therein. Duna mai mga private documents nga
kinahanglan nimu i-submit sa opisina sa
gobyerno, naa ba? Naa! Kana diay marriage
contract private man na. Pero asa man na nimu i-
submit? Didto sa NCR which is a public office,
unya ilista didto. The public record of that public
document is considered as private document.
Unya unsa man ang private document? Aw all
other document which do not belong to the
classification katong mga dokumento nga atong
gipanghisgustan are private. Matod pa all other
writings are private.
Q: Then the important question that you might
ask: what is the importance of knowing whether
a piece of document is private or public
document? Unsa man ang naa diha kung
makabalo ka nga kanang dokumentuha private
document na? Unsa mai importance ana in the
presentation of your evidence?
A: knowing whether the document is a private or
public is important in presenting your evidence
because a public document does not require
authentication. All you have to do is just mark
it and offer it as evidence.
Nahindum mo sa atong gi-discuss sa previous
meetings nato nga ang usa ka-document
kinahanglan nga it must be marked, it must be
identified or authenticated and it must be offered
in evidence. If it is a public document you may
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
dispense with the authentication. You may not
have it authenticated: you can just mark it and
thereafter offer it in evidence. Pananglitan
certification from the FEU; pananglitan
prosecutor ka unya duna kai kaso nga ang
akusado gikasuhan ug violation of PB1 866.
Kinahanglan ba ka mu-present ug certification
gikan sa FEU? Unsa man nang FEU? Firearm and
Explosive unit. Unsa mai certification na
gikinahanglan nimu para makumbikto ang
accused nga ang akusado dili lisensiyado, wa
didto ang ngalan sa akusado wala didto sa
listahan sa mga tawo nga ila gihatagan ug
lisensiya? Kanang maong certification nag gikan
sa FEU importante kaayo para makumbikto ang
akusado, because that is a proof that in deed the
accused is not licensed to possess a firearm or to
carry firearm outside residence.
Q: karon, unsaon man nimu pagpresentar ni dir
sa korte?
A: Now, puede ra nimu ni markahan as your
exhibit A (for example) and after presenting all
your witnesses you can offer this in evidence.
There is no need for you to present the
official who signed this certification. That is
the ruling of the SC in the case of PEOPLE vs.
DEL ROSARIO, GR. NO. 142295, may
31,2001.
So, mao na siyay public document: dili
necessary nga mupresent ka ug witness para mu-
authenticate.
Q: Unsa man gud nang authenticate?
A: Kana bang proof nga that is really the
document that he is referring to.
For example Sum of money. Karemember mo
before mo kafile ug case of sum of money there
must be a demand letter, otherwise there is no
cause of action; the case will be dismissed. Now,
during the presentation of your witness (katong
complainant) imu sa pangutan-on if nakapadala
ba siya ug demand letter. Ing-anion nimu
pagpangutana: Mr Juan dela Cruz, before you file
this case in court did you send a demand letter to
the defendant? Ang tubag: “yes, I did”. What is
your proof to that? “I have here a demand letter
(ihatag dayon niya ang iya demand letter)
showing that I send a demand to the
complainant”. Now, here is a siganature in the
top of the name “Juan dela Cruz”, whose
signature is this? “That is my signature”. Kaong
pag ingon “that is my signature” mao nang
authentication. Pagmatuod sa korte nga kaning
dokumentuha mao jud ni angg demand letter.
Naa pa laing pamaagi ana, kanang demand letter
puede naa na nimu daan. So, puede na nimu
ingnon, “showing to you a demand letter what is
the relation of this to that demand letter
mentioned earlier you mentioned to the
accused”? Unya iya tubag: “Ah, this is the
one...the very same demand letter that I sent to
the accused. You call it identification. Then mu-
ingon ka, “whose signature is this in top of the
name “Juan dela Cruz”? Muingon siya: “that is my
signature”. You call it authentication.
Now, if this is a public document there is no need
for you to ask “whose signature is this?”. Kung
kani Deed of Sale dili naka mangutana “whose
signature is this”. Ngano man? Kai public
document. A public document does not
require authentication. Pero kabalo mo didto
sa korte sa tinud-anay gyud, ang mga abogado
dili mukompiyansa: bisag pag public document
ila gihapon nang ipa-authenticate. Dili na na
necessary because a public document is self
authenticating.
So, do you know now how to authenticate a
private document? You let the witness identify
and authenticate that that is the very same
document that she is referring to.
Q: Now, how to prove public document? Unsa on
man nimu pag-authenticate sa usa ka private
document? Pananglitan kini deed of sale, unya
wa man ma-notarize; unsaon man nimu pag
authenticate ron? Unsaon man nimu pagmatuod
sa korte na mao ni ang deed of sale?
A: You present the signatory. If the signatory here
is Juan dela Cruz kai siya man ang nag baligya sa
maong yuta pero wala lang manotaryuhe, you
present him in court to identify his signature.
Q: Why there is a need to have this document
authenticated?
A: Because this is not a public document, this is
a private document.
Q: Supposed the signatory is not anymore
around. Ibutang nato nga patay na ang
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nagpirma: six feet below the ground, unsaon
nimu ron pag-authenticate?
A: You present persons who were present and
saw the person writing his signature. Mao nang
hinungdan nganong mag-execute ka ug
dokumento duna gyud mga witnesses kai ing-
kaso wala na ang ga-execute, katong mga
instrumental witnesses mao tong mu-prove.
Kamu kai pataka ra man mo ug pamirma, wa mo
kabalo kung unsai importance ana.
Q: Di-a pa laing problema: So, the signatory is
not anymore around, you present a witness who
saw him writing the document. Supposed none of
the witnesses is available; namatay napud silang
tanan, unsaon na pud na nimu pag pa-
authenticate?? How are you going to prove nga
mao na gyud na siya; nag pirma gyud na ni Juan
dela Cruz (dili parente sa inyo classmate)? Unsa
man na niyo pag-prove; wa na si Juan dela Cruz,
wa nasad ang mga witnesses??
A: kahinumdom mo when we discuss opinion
evidence? That a witness can testify the
authenticity of the signature of the other person
if he has sufficient familiarity with the signature.
So, you can present a person even though he has
not seen that person writing but he is familiar
with the signature. Such as a child of the person
whose signature is in question; the secretary.
Q: Pananglitan wa jud nakaila sa iya signature?
A: By expert witness. By expert evidence.
Meaning you compare the signature with the
documents containing signatures of that person
whose signature is in question. And those
signatures appearing on those documents are
admitted to be genuine. Otherwise the private
document cannot be admitted in evidence
because a private document without
authentication is not admissible in evidence.
Sec. 20 . Proof of private document. —
Before any private document offered as
authentic is received in evidence, its due
execution and authenticity must be proved
either:
(a)By anyone who saw the document
executed or written; or
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
(b)By evidence of the genuineness of the
signature or handwriting of the maker.
Any other private document need only be
identified as that which it is claimed to be.
Before any private document offered as
authentic is received in evidence, its due
execution
Q: Unsa man nang due execution? Unsa mai
kalahian sa due execution ug authenticity?
A: Mu-ingon gani ka ug due execution: meaning
that was executed without any coercion, without
any influence, without any intimidation...mao
ning gitawag ug due execution.
...and authenticity must be proved.
Q: By whom? Kinsa man mupruheba? ( wa na
diha sa inyo book)
A: By:
1. Party or signatory thereof (katong
nagpirma mismo).
2. Anyone who saw the execution of
the document. Mao ning gitawag ug
instrumental witnesses. The notary
public, for example.
3. Witnesses who believe it to be the
handwriting of such person because
he had seen the person write or has seen
writing purporting to be his or acquired
knowledge. Meaning, a witness who is
familiar with the signature of that
person.
4. Comparison made by a witness.
5. Expert evidence.
Sec. 21 . When evidence of authenticity of
private document not necessary. — Where a
private document is more than thirty years
old, is produced from the custody in which
it would naturally be found if genuine, and
is unblemished by any alterations or
circumstances of suspicion, no other
evidence of its authenticity need be given.
There are however private documents which
does not require authentication, we called them
ANCIENT DOCUMENT.
But there are requirements before a
document will be considered ancient:
1. It must be MORE THAN (timan-i ang word
nga more)...more than 30 years old. Sa ato
pa as old as you.
2. Produced from the custody in which it
would naturally be found if genuine.
Q: What do you mean by this?
A: Meaning to say it is found from
where it should be or it is kept by
someone who must have custody
of the same. Pananglitan private
deed of sale and it is kept by the
buyer. Do you expect the buyer to
keep it?? Yes! Buyer gyud siya. So,
it is produced in custody which it
naturally be found if genuine.
3. unblemished by any alterations or
circumstances of suspicion. So, there is
no situation; there is no circumstance
that one will doubt its authenticity. And
there is no alteration; there is no
erasure; there is no superimposition.
Wai gibutangan kanang white ink unya
gisuwatan.
So, those are the requirements of an
ancient document. All these requisites must
be present.
For, example a deed of sale dated 1950,
unya it is found in the custody of the buyer.
Q: Unsa man, pasar and first requisite?
More than 30 years old?
A: yes
Q: It is found in the custody where it
should be, pasar?
A: Yes.
Q: Unblemished by any alterations or
circumstances of suspicion, pasar?
A: Yes.
Q: But if it is computer printed, pasar sa
third?
A: No, because at that time there is no
computer yet. So there is a
circumstance of suspicion. That is not an
ancient document.
Q: But if it is typewriter; it is type written or
handwritten but there are erasures, pasar?
Page | 407

A: No. It does not pass the 3 rd requisite.
It will not be considered because it must
not have alterations or circumstance of
suspicion.
Q: So, does it mean that that document
cannot be anymore admitted in
evidence?
A: No, because being ancient document
will just do away the authentication. It
does not mean that that document
cannot longer be admitted.
Q: So, what are you going to do in order
for that document to be admissible
because it does not comply with the
requirements of being an ancient
document?
A: Then have it authenticated. If there
are erasures, present a witness to
explain the erasures.
Sec. 22 . How genuineness of handwriting
proved. — The handwriting of a person may
be proved by any witness who believes it to
be the handwriting of such person because
he has seen the person write, or has seen
writing purporting to be his upon which the
witness has acted or been charged, and has
thus acquired knowledge of the
handwriting of such person. Evidence
respecting the handwriting may also be
given by a comparison, made by the
witness or the court, with writings admitted
or treated as genuine by the party against
whom the evidence is offered, or proved to
be genuine to the satisfaction of the judge.
Section 22, we discussed that already. This
tells us the ways of proving the authenticity
of the private document.
So, do you understand now the importance
of knowing whether the document is public
or private?
Sec. 23 . Public documents as evidence. —
Documents consisting of entries in public
records made in the performance of a duty
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
by a public officer are prima facie evidence
of the facts therein stated. All other public
documents are evidence, even against a
third person, of the fact which gave rise to
their execution and of the date of the latter.
Now, Sec. 23. What is the evidentiary value of
a public document? Now a public document is
a prima facie evidence of the fact stated therein.
Q: What do you mean by prima facie evidence?
A: Meaning the facts stated therein are
presumed to be true. But again being just prima
facie you can present controverting evidence.
For example, a police blotter—that is a public
document. So, the facts stated in the blotter are
prima facie evidence of the facts stated therein
but being only prima facie a party or the adverse
party can present controverting evidence.
So, the contents are not conclusive but only
prima facie. But in the absence of any
controverting evidence the same will
become conclusive.
Sec. 24 . Proof of official record. — The
record of public documents referred to in
paragraph (a) of Section 19, when
admissible for any purpose, may be
evidenced by an official publication thereof
or by a copy attested by the officer having
the legal custody of the record, or by his
deputy, and accompanied, if the record is
not kept in the Philippines, with a
certificate that such officer has the custody.
If the office in which the record is kept is in
foreign country, the certificate may be
made by a secretary of the embassy or
legation, consul general, consul, vice
consul, or consular agent or by any officer
in the foreign service of the Philippines
stationed in the foreign country in which
the record is kept, and authenticated by the
seal of his office.
How are you going to present official record or
how are going to prove official record? Under
section 24, proof of official record...kahinumdom
mo sa phar.(a): katong written official act ug
record of official acts? Official record: unsaon
man nimu pagprove? For example res
judicata...”your honor, this case here is
dismissible on the ground of res judicata. The
plaintiff your honor has filed a case before
involving the same parties, the same issues anf
the same case has already been dismissed.” So,
unsaon man nimu pag-prove ron na duna nai
decision nga na dismissed and the dismissal is on
the merits? You present it.
Q: Unya unsa mai imu ipresent ron?
A: You will present:
1. The original decision (wa diha sa sec.24)
2. By a copy of an original decision (wan a
diha ha, ibutang na niniyo)...if you still have
the original.
3. By official publication thereof. For
example nahiabot na to didto sa SC. Unya
ang mga decision sa SC i-publish man na.
Unsaon man na nimu pag-prove? (unsa to
ang official publication sa SC? SCRA? We
the Philippines Reports and the Official
Gazettes). So you present a copy of Official
Gazettes containing the decision or you
may present the decision itself or by a copy
of attested by authorized officer having the
custody of the document.
Pananglitan wa nakai copy sa original, unsai
buhaton nimu? Mua-adto ka sa kotre, i-certify
true copy...magpaphotocopy ka unya katong imu
photocopy gi-pacertifayan. Kinsa mai mu attest
nga kana siya faithful true copy from the original?
Si, Tolits? Ang custodian! Naa na gi-certify true
Page | 408

copy ang ni-certify ang katong nagxerox
copy...ingon ko, “dili ka ana puede dai, ang
custodian ana dai katong nagkeep ana...ang
custodian ana ang mucertify dai.” So, the
custodian or his deputy.
Now remember, if the document ( ang problema
kung ang document is a foreign document) is
keep in a foreign country...so it must be
authenticated by a custodian aside from that it
must be accompanied by a certification from
the Philippine embassy or from the Philippine
consul.
Q: Unsa ma i-certify sa Philippine consul or
secretary of the Philippine embassy? Kanang true
copy pud?
A: No! That the person certifying is really
the custodian.
Wa man ta kabalo nga ang tig-xerox ra pud
parehong Tolits ang mu-certify...unsa man nimu
pakabalo nga siya jud ang custodian na ni-
certify...what if nagpapirma ra siya didto...unsaon
man na nimu pagsiguro, unsaon man na nimu
pagsiguro sa korte nga kanang nipirma custodian
jud?? It is only the Philippine embassy, it is only
the consulate can verify whether the person
certifying the machine copy to be a true copy or
that machine copy is really copied from where it
is kept is really the custodian.
Basta automatic gyud na ha...basta foreign
document naa gyud na taga embassy. For
example dunai ni-execute ug special power of
attorney, diba kanang SPA dri sa ato pirmahan
ran a sa mai City Hall. Katong diha ko amigo
nagpanotaryo...naay tawo diha, ingon siya
“paxerox ka dong?” Naa man nang kan-anan ana
diha...ambot lang kung gi-demolish ba to (naa
pa’y kan-anan diha?)...nangukay sa dugo-dugo.
Ingon siya, “unsa man dong?”---“magpanotaryo
ta ko nang”---“time pa ha” (nangukay pa sa
dugo-dugo). Niya kahuman pangukay ug dugo-
dugo kuha ug ballpen...mao mai ninotaryo!!
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Ingon siya, “asa man ang abogado”—“tu-a pa
man sa korte dong”.
So, kanang atong special power of attorney
puede rana notary public dri, dili na na
kinahanglan ug embassy. Pero ngadto na gani ka
mu-execute ug SPA sa gawas naa na na taga
embassy; naa na na taga consul, muapil na na.
Mu-certify nga kana siya authorize gyud. So, if a
document is not kept in the Philippines it must
contain a certification that the officers
certify the same has a custody and the
certificate may be made by a secretary of
embassy, consul general, consul, vice
consul or consular agent in the country
where the record is kept and authenticated
by the seal of his office. Now, duna pajud nai
seal, ang seal pajud ana murag ribbon...mura
ba’g ribbon sa first honor.
For example you have an aunt filing a case and
authorizing you to file the case unya naa siya SPA
but not authenticated by the embassy, that is not
valid and so the court cannot acquire jurisdiction
over the plaintiff. You have no authority to file the
case.
Sec. 25 . What attestation of copy must
state. — Whenever a copy of a document or
record is attested for the purpose of
evidence, the attestation must state, in
substance, that the copy is a correct copy
of the original, or a specific part thereof, as
the case may be. The attestation must be
under the official seal of the attesting
officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of
such court.
Q: What attestation a copy must state?
A: Whenever a copy of a document or
record is attested for the purpose of
evidence, the attestation must state, in
substance, that the copy is a correct copy
of the original, or a specific part thereof, as
the case may be. So, true and faithful
reproduction of the original: mao na siya ang i-
cetify.
Unya ang uban ana kinahanglan naay
stamp...kanang documentary stamp although
ang ubang korte dili na na mustrikto.
You read these cases ha:
1. Heirs of Gorgonio Bedina vs. Natividad,
November 27, 2008. This is about a foreign
document.
2. Wild valley vs. CA, 342 SCRA 213. Still
about foreign document
3. Tugas vs COMELEC, 420s SCRA 365
Sec. 26 . Irremovability of public record. —
Any public record, an official copy of which
is admissible in evidence, must not be
removed from the office in which it is kept,
except upon order of a court where the
inspection of the record is essential to the
just determination of a pending case.
This is regarding public document. The original of
the public document cannot be removed from the
office where it is kept. That is why it is an
exception to the BEST EVIDENCE RULE. Diba
under the best evidence rule if the subject of the
inquiry is the contents of the document, the
original of the document must be presented in
court, However if the original of the
document is a public document a certified
machine copy will do.
Q: why is it the original of the document cannot
be removed from the office where it is kept?
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A: To avoid inconvenience and also to
maintain the integrity of the document. That
is why a certified machine copy will do.
Q: Is that absolute? Are there exceptions?
A: Yes, there is EXCEPTION: if the presentation
of the original is really needed in court to further
determination of a pending case. So, in that case
the court will issue subpoena duces tecum to the
custodian to bring the original document in court.
But that is an exception rather than the rule!!
Sec. 27 . Public record of a private
document. — An authorized public record of
a private document may be proved by the
original record, or by a copy thereof,
attested by the legal custodian of the
record, with an appropriate certificate that
such officer has the custody.
Public record of a private document...of course
the original if there is any. For example marriage
contract—How are you going to prove that you
are married? You present the original copy of the
marriage contract.
Q: Unsa mai kinalahian ug marriage contract ug
marriage certificate?
A: Marriage contract: katong iyo gipirmahan
dyud. Marriage certificate: katong gi-issue sa
LCR.
Sec. 28 . Proof of lack of record. — A written
statement signed by an officer having the
custody of an official record or by his
deputy that after diligent search no record
or entry of a specified tenor is found to
exist in the records of his office,
accompanied by a certificate as above
provided, is admissible as evidence that the
records of his office contain no such record
or entry.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
This is proof of no record. We have discussed
earlier about certification from the FEU or FISAGS
that the accused does not have any license to
possess or carry firearm outside residence. So
kanang certification i-issue na sa taga FEU
(firearm and explosives unit) nga ang ngalan
kannag tawhana wala sa listahan. Kanang iya
certification mao nang gitawag nga certification
of no record. Kamu sad kung mukuha mo ug
birth certificate because that is one of the
requirements when you file a petition to take the
bar...pagkuha nimu didto wa ka marehistro.
…Firearms and Explosives unit nga ang ngalan
anang taw.hana wla dha sa ilang listahan.
Kanang iyahang listaha, kanang iyahang
certification, kanang ilahang gitawag ug
certification of no record. Kamu sd kung mukuha
mu ug birth certificate because that is your
requirement for petition to take the bar, pagkuha
nimu didto wa ka narehistro. Adto ka sa NSO wa
ka narehistro, mao nang gitawag ug certification
of no record. Unya kung magminyo ka
pangayo.an ka ug CENOMAR, certificate of no
marriage, nga wa ka nagpakasal sa una. Kana
cyang maong certification, that can be
admissible in evidence, that can be admitted in
evidence. Proof of no record or proof of lack of
record. Specially kanang sa violation sa PD 1866.
Now, but remember that the rule is otherwise in
violation of RA 9165. In violation of RA 9165,
although in the information there is an allegation
that the accuse does not have the authority to
sale or to possess drugs that allegations is
required to be allege in the information, but in
the presentation of evidence during trial the
prosecution is not required to present a
certification from BFAD, Bureau of Food and Drug
that indeed the accuse is not authorized to sale
or to possess illegal drugs. Kai matud pa sa SC
that is within the midst (?) of the accuse to
secure the same.
Ok, how to impeach judicial record? How are
you going to impeach judicial record? Now, a
judicial record could be impeached by evidence
of lack of jurisdiction. For example if the
defendant raised the defense of res judicata,
then you can present in evidence that the court
trying that try the first case does not have
jurisdiction. That there is collusion between
the parties or that there is fraud in the
party offering the record, in respect to the
proceedings.
Section 29. How judicial record impeached.
— Any judicial record may be impeached by
evidence of: (a) want of jurisdiction in the
court or judicial officer, (b) collusion
between the parties, or (c) fraud in the
party offering the record, in respect to the
proceedings. (30a)
Now, Section 30. Proof of notarial documents. So
a notarial document we have learned... a
document duly notarized or acknowledge is
considered as a public document, as such it does
not require further proof. And just like any other
public document it is considered as prima facie
evidence of the execution of the…. Or the
contents are prima facie evidence of the facts
stated therein. And the acknowledgement is the
prima facie evidence of the execution of the
instrument or the document involve.
Look at that note of regalado, regarding special
power of attorney. Special power of attorney is
executed and acknowledge before a notary public
or other competent officer in a foreign country, it
cannot be admitted in evidence in Philippine
courts unless it is certified as such in accordance
with the provisions of Sec. 24 of this Rule.
Unsa mn nang Section 24? That it must have a
certification from the Philippine Embassy or
consult, consulate.
Section 30. Proof of notarial documents. —
Every instrument duly acknowledged or
proved and certified as provided by law,
may be presented in evidence without
further proof, the certificate of
acknowledgment being prima facie
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evidence of the execution of the instrument
or document involved. (31a)
Let’s go now to Section 31. Alteration
documents.
Now, what will happen if a document contents
alteration? Usay mahitabo kung dunay
alteration? The party producing a document
offered as genuine but contains alteration must
explain for the alteration, must explain for the
alteration specially if the alteration refers to a
material or important content of the document.
So for example, Deed of Sale. Imbis 200 nhimu
mn 2000. Gipun.an mn ug 0. Deed of Sale, lot
area. There is now an alteration, so there must
be an explanation.
Unsa may explaination nga iyang ma.offer? He
may show that the alteration was made by
another party, without his concurrence or
was made with the consent of the parties,
mu.ingon nga amu mn nang gisabotan nga mao
nah. Or innocently made or the alteration
did not change the meaning or language of
the instrument.
What will happen to the document if there is no
explanation? The same could be considered
inadmissible. Look at last sentence (Sec. 31); if
he fails to do that, the document shall not be
admissible in evidence
Section 31. Alteration in document, how to
explain. — The party producing a document
as genuine which has been altered and
appears to have been altered after its
execution, in a part material to the
question in dispute, must account for the
alteration. He may show that the alteration
was made by another, without his
concurrence, or was made with the consent
of the parties affected by it, or was
otherwise properly or innocent made, or
that the alteration did not change the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
meaning or language of the instrument. If
he fails to do that, the document shall not
be admissible in evidence. (32a)
in
Section 32. Seal, there is no difference between
sealed and unsealed private documents, pero
this refers to private document ha. Because if
you present a public document unya way seal, ah
that can be question, especially if that is a
foreign document. Sa atong nang gisulti kanang
foreign document, unya certified by the embassy
or consult, naa pa na cyay ribbon.
Section 32. Seal. — There shall be no
difference between sealed and unsealed
private documents insofar as their
admissibility as evidence is concerned.
(33a)
Section 33, What about documents in an
unofficial language? For example unsa may
official language nato? We have only two official
languages here in court, English and Filipino.
Sagad although official language nang Filipino
pero ang gigamit jd nato English. Unsa mn nimu
beh, unsa may Filipino sa objection your honor?
Kblo mu? Hehehe………… unsa may bisaya sa
falsification of document? …
Now, if a document is written in an unofficial
language it must be…, usahay ma.overlook ra ni
cya pro that would be fatal to your case,
especially if the document is an actionable
document. That is fatal to your cause of action.
So for example the document is written in a
dialect, Cebuano, the same must contained a
translation. Knsa mn magbuhat sa translation?
The party offering the document, if not it could
be the court interpreter.
Section 33. Documentary evidence in an
unofficial language. — Documents written
in an unofficial language shall not be
admitted as evidence, unless accompanied
with a translation into English or Filipino.
To avoid interruption of proceedings,
parties or their attorneys are directed to
have such translation prepared before trial.
(34a)
Let’s go now to the MORE IMPORTANT
provisions.These refer now to the offer of your
evidence.
Now, Section 34 this is VERY IMPORTANT. Offer
of evidence. The court shall consider no
evidence which has not been formally
offered. The purpose for which the
evidence is offered must be specified.
Remember that.
Now, dunay uban nagtuo nga kanang inig marka
na, uban mga abogado during pre-trial d ba
markahan mn nang dokumento? Nag.tuo cla nga
offer na. DILI NAH! MARKING NAH! Lahi ang offer,
lahi ang marking. Unya inig presentar na sa
dokumento, inig pakita na sa witness ok, Mr. Juan
Dela Cruz you said awhile ago that you send a
demand letter. Showing to you a demand letter,
is this the one? Mu.ingon daun cya, yes that is
the one. Nagtuo cla nga offer nah. DILI NA OFFER
IDENTIFICATION NAH! (mura mn nasuko c
judge..hehe). Anus.a mn d i ang offer? The offer
of the evidence, ang offer sa evidence the
documentary ug sa objects will happen after the
party has presented all its witness.
So pananglitan ang prosecution dunay tulo ka
witnesses. Okay present ko ug isa, Mr. A, c Ms. A,
c Ms. B. Mahuman na gani me, mu.ingon ang
court, ok do you have another witness? Nya
mu.ingon ko your honor we have no more
witnesses. Now, that will be the time that I will
offer my exhibits. Katong g.pamarkahan nko,
gipa.identify maoy e.offer nko in evidence.
Unsaon mn na pag.offer? dihay abogado lingcod
cya sa lamisa naa man lawyers table didto taas
kita mu sa korte? Gi.ingnang cya sa korte sa
judge, ok do you have still more witness to
present? Ingon ang lawyer, no more your honor.
Ok you offer your exhibits. Unsay iyang gibuhat,
iyang gidala ang iyang mga dokumento ug gidala
niya sa table sa judge. Mao nah? In.ana
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pag.offer? DILI! Mura kag nag.offer ug misa…
hahah! Unsaon mn d I na nimu? Ang pag.offer sa
object ug sa document, imung tagsa tagsa.on.
There are two ways to make your formal offer.
ORAL and WRITTEN.
Oral – you can do it by simply enumerating,
simply stating, and mentioning each and every
document or exhibit that you have made. And
YOU EXPLAIN THE PURPOSE. Unsa mn nang
purpose? Imung huna2.on kung unsa may facts
or fact nga imung e.establish ana, unsa mn
e.prove ana. For example knife, ok, exhibit A is
knife. So, description, unsay may purpose sa
knife in a murder case? ikw kunoy public
prosecutor what is your… naa nimu ang knife
under mn ka nko trial tech. (judge pointing one of
the student) how are you going to offer? Kahinum
p b ka?… (D mklaro ang answer), but judge said,
Exhibit A is a knife… So you describe first, you
will say your honor Exhibit A is the knife, this is
offer to prove that the accused used a knife in
killing the victim. The purpose that the accused
used a knife in killing a victim. Or firearm, that
the accused used a firearm in killing the victim.
Death certificate, unsa may purpose sa Death
Certificate? To prove that… ahw, timan.e
importante ni, unsaon pagconvict ug murder
kung wlay death certificate, to prove that the __
(?) victim is already dead and he died from
multiple stab wounds. Alangan mn ingnon nimu
ang knife ingon nimu he died from multiple
gunshot wounds, etc. etc., naminaw mu?
Importante bya ni. Ok you mention the exhibit,
what is it, its description and the purpose.
Document for example, Deed of Sale, recovery of
ownership. You exhibited the deed of sale to
prove that the plaintiff acquired the lot or the
land through sale. That’s the purpose.
Now, about the other party? When there is an
offer, the court will always require the adverse
party to comment or to raise its objections. TO
COMMENT OR TO OBJECT.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Now, unsa mn objection nimu sa Exhibit A, sa
knife? Usbon nko ha, tanang exhibit nimu
e.tagsa2 gyd na nimu ug sulti. Unya imung
butangan ug purpose. Of course pananglitan ang
imuhang exhibits C ug D… exhibit D your honor
etc. etc., ug isa ra imung purpose ana, mu.ingon
ka nga these exhibits aim to prove that… Now,
nia ka sa adverse party, gipangutana ka sa court,
ok do you have any comment? Imu sad nang
tagsa tagsahon unsa mn imung ikasulti ana. If
you want the court not to admit it, why should
the court not admit it? Now, you are now going to
remember, you should remember the rules on
admissibility.
So for example, you may say, your honor we
object to the… unsa gani masud sa imung utok
kung naa ba ka comment ug objections? WHY IS
IT THAT THE COURT SHOULD NOT ADMIT IT. If you
say no comment your honor, then the court will
admit on the exhibits.
What possible objections you can raise from the
knife? You may say, your honor we object to the
admission of the knife Exhibit A, on the ground
that it was not identify by any witness or on the
ground that it is a fruit of a poisonous tree, it was
allegedly recovered in the possession of the
accused w/o a search warrant. Or kung duna for
example lain nga kaso, deed of sale, your honor
we object on the ground on violation of best
evidence rule or, your honor we object on
violation of the Parol evidence rule.
Now, why is it that the court will not consider an
exhibit or evidence which is not formally offered?
Nganu mn nga d mn e.consider? Because the
other party is not given any opportunity to
comment or object. Pananglitan ang korte ray
magbu.ot akong ning dawaton, wa pa nimu tagae
ang pikas ug opportunity nga mka.kumento
nganung dili angayan nang dawaton. so that is
the reason.
Now, regarding testimonial of evidence, is
testimonial evidence need to be offered? How are
you going to make a formal offer? When are you
going to make a formal offer of the testimony of
your witness? Kinahanglan bang e.offer? ang
atong g.kuan diri object ra mn ug documentary,
ang testimonial kinahanglan ba ug nimu e.offer?
YES. You must offer testimonial evidence. The
question, when are you going to make a formal
offer of your testimonial evidence? Now, you are
going to make a formal offer of your testimonial
evidence just before the start of your direct
examination or upon calling your witness to the
witness stand.
So for example my witness is here, mu.ingon ko,
your honor my 1st witness is Ms. So and So,
mulingkod na cya didto, swear in, now, before I
start my direct examination I would have to tell
the court what would be the facts that would be
establish by her testimony. Basta mu.ingon gani
ta ug evidence facts gyd nah. So unsa may facts
nga iyang e.testify? mao ray akong e.summarize,
meaning short. I will give the gist of her
testimony. I will say, your honor the testimony of
the witness is offered to prove the ff. facts: that
on Jan. 15, 2013, 9 o’clock in the morning she
was in carbon market in order to buy vegetables
and other provisions. That while in carbon market
he saw the accused stabbing the victim. That…
unsa p na imung esulti… Unya pakapinan daun
na nimu ug catch all, just in case naa kay
mkalimtan, and all other related facts or and all
other related matter. Mao toy gitawag ug formal
offer sa testimonial. Daun you may now start.
Now, take note that if there is a formal offer ang
pikas duna puy opportuny to object. After I made
my formal offer the adverse counsel can object.
Mu.ingon daun cya, your honor we object to the
propose testimony of the witness because her
testimony is entirely hearsay. Ok, mao na inyong
objection or your honor we object to the propose
testimony of the witness because his testimony
would be a violation of the right of the accused
during custodial investigation, the Miranda
doctrine. Any admission made by the accused
your honor would be inadmissible in evidence.
And since that is the tenor of the testimony of
the witness we object to its admissibility.
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Pero sagad sa mga abogado adto ka sa korte dili
mu.object inig human ug offer. Anus.a mn sila
mu.object? mu.object sila inig pangutana na sa
mga questions. Proper pa ba gihapon na? YES
proper. Why? Because a testimonial evidence can
be objected…or in testimonial evidence the
adverse party has two opportuniy to object. Sa
testimonial evidence ang pikas dunay duha ka
kahigayunan nga mka.raise sa iyang objection.
1st opportunity is after stating the offer, 2nd
opportunity is when each and every
question is asks. So for example nangutana
nko kron sa witness, ni.ingon ko nga sometime on
it is not that you are in carbon market, am I
correct? Mu.ingon daun ang pikas objection your
honor, leading. Now, pwd cya mka.object tungod
kai ang testimonial evidence, and pikas dunay
duha ka opportunity to object. 1st ang katong
human sa offer ang ikaduha is when each and
every question is raise, the adverse party can
object.
Now, balikan nato ang object ug ang
documentary. General Rule, the court cannot
consider evidence which is not formally offered.
However, in some cases, a few cases decided by
the Supreme Court, the SC admintted in evidence
exhibits, documentary evidence w/c has not
formally offered in evidence. Wa ma.offer, so the
trial court did not consider it. However when the
case reach to the SC, the SC said ah pwd ra nga
admitton nga ebidencya bisag wa ma.formally
offered, as long as the document is attach to
the record of the case and has been
testified or identified to by the witness. So
that is by way of exception. If a piece of
document, mark and identified but it was
not formally offered in evidence and a copy
is attach to the record according to the
Supreme Court that can be consider in
evidence even if not formally offered. Pero
that’s by way of exception, that’s the ruling… usa
sa mga kaso, one of the case is the case of
RAMOS vs. DIZON,et al. Aug. 7, 2006, G.R. No.
137247.
Now, after the party has mark and identified its
exhibit is a party required to offer it? Kinahanglan
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
b jd nga e.offer na nimu nga imu nang
gpa.markahan? DILI. Pwd nimu pamarkan, pwd
nimu ipa.identify but later on you realize that it is
not necessary to prove your case then you may
not offer it in evidence. That is why under the
rules the court cannot also considered evidence
which is not formally offered.
February 3, 2013
Okay… we will answer the question. Some of
these questions will be repeated in the midterm,
in the quiz before finals or in the finals.
So can the court muto propio dismiss a criminal
case after the prosecution rested its case? YES.
After the prosecution given an apportunity to be
heard the court can muto propio dismiss the
criminal case. But as what we have said when we
discuss criminal procedure, the court seldom
dismiss the case muto propio. The usual is the
court will have to wait a demurrer of evidence
from the defense. But that is provided in the
rules.
Then, does the Sandiganbayan has jurisdiction
over a light offense committed by a City Mayor,
in relation to the performance of his official
duties? YES. As what we have said, the
Sandiganbayan… if the public officer is occupying
a position which is salary grade 27 or higher, or
even if he is not occupying salary grade 27 or
higher but his position is expressly provided by
P.D. 1606 as amended that Sandiganbayan has
jurisdiction over the same and that the crime
charged has been committed in relation to the
performance of his duties and regardless of the
penalty imposable the Sandiganbayan has
jurisdiction.
Now, after an accused has arrested by virtue of
warrant of arrest and the shabu is taken from the
drawer of his table because at the time he sitting
in the table, is the shabu recovered in the drawer
admissible in evidence? YES, because it was
seized during a search incidental to a lawful
arrest. Why? Unsa may coverage sa search
incidental to a lawful arrest? The searching officer
may seized, unsa may e.seized niya? Ok review,
tan.awa gyd na ninyo ha, tan.awa.
Then, does the DOJ Secretary have still the power
to review the resolution of the prosecutor’s office
after a case has been filed in court? YES. But his
ruling is not binding upon the court. That is
usually happens. The prosecutor’s office will file a
case in court, and then on the other hand an
accused will file an appeal over the resolution to
the DOJ Sec. The DOJ Sec does not loss
jurisdiction over the case despite the filing of the
case in court. Meaning the DOJ Sec can still
review the resolution of the prosecutor’s office.
However, whatever will be the findings of the DOJ
Sec., the same will not be binding upon the court,
because once the case is filed in court the
disposal of the same rest on the discretion of the
court. What ruling is that? Crispo vs. Mugol. Take
note of that, mao ra japon na ron, that is a
landmark case. That is decided by the SC way
back 1987, and up to now that is still the existing
jurisprudence on the matter.
Okay, a case of specific performance is filed in
RTC, after the set of summons the defendant filed
a motion to dismiss based on the violation of the
Statute of frauds. If the court grants the motion
what would be the remedy of the plaintiff?
Appeal. Why appeal? Because the order is a final
order, it is not a dismissal without prejudice. Can
you refile it? NO. nganung d nmn pwd e.refile? kai
mao ra mn gihapon violation mn sa statute of
frauds. Pareho ra nah sa prescription. It cannot
be refiled. Nganu mn? Mao ra gihapon e.raise ra
gihapon ang maong depensa. Lahi na cya sa lack
of jurisdiction, e.file nimu sa MTC lack of
jurisdiction, then refile it sa RTC. Ok. That is a file
order. And what is a remedy of a final order?
APPEAL. It’s not petition for certiorari. Remember
that petition for certiorari can only be filed when
there is no other remedy.
Is there a need to amend the information if the
parties agreed to bargaining, is there a need to
amend the information because the accuse
would now plead guilty to a lesser offense? There
is NONE.
Can the decision be promulgated if the judge who
signed it is already dead? NO. The decision must
be signed and promulgated during the
incumbency of the judge who signed it.
Then another, what is the remedy of the
prosecution if it’s vital witness might not be able
to testify during the trial? File a motion for the
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conduct of taking a deposition? CONDITIONAL
EXAMINATION.
The accuse is convicted of estafa but failed to
appear during the promulgation of judgment, can
the accuse file an appeal from the decision
convicting him? He LOSE his remedy under the
rules, he cannot file an appeal. Tanang remedy
wagtang, basta dili ka mutunga during the
promulgation of the decision. However, unsaon
mn nimu if he wants to avail? He has to file a
motion, he has to surrender and file a motion to
avail of those remedies but he should give valid
reasons for his absence.
He has to file a motion to avail of those remedies
but he should give valid reasons for his absence.
 What is the plea that should be entered
for the accused in the record if he pleads
guilty but raise justifying circumstance of
self-defense?>>>PLEA OF NOT GUILTY
 Can the accused still present evidence if
he files demurrer to evidence w/out leave
of court? >>> NO BEC FILING DEMURRER
TO EVIDENCEW/OUT PRIOR LEAVE OF
COURT constitutes a waiver of right to
present evidence.
 The accused entered into a plea
bargaining he is charged w/ frustrated
homicide he pleaded guilty to a lesser
offense of serious physical injuries w/ the
consent of the private complainant & the
prosecutor. After serving his sentence,
the victim died, can he still be charged
with homicide?>>>YES BEC THAT IS A
SUPERVENING EVENT
 2 accused are charged w/ murder both of
them are convicted w/ homicide, the
other accused chose to serve his
sentence but his co-accused filed an
appeal bec he really want to be
acquitted. Now the CA indeed acquitted
him on the ground that he is still a minor
and acted w/ discernment [w/out tingay
ni nuh] when the crime was
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
committed.Will the decision benefit the
non-appealing accused? >>>NO BEC
THE DECISION IS NOT APPLICABLE TO
HIM
 What is the remedy of a public
prosecutor if he wants to present addtl
evidence after both parties have rested
their case and the case is already
submitted for decision?>>>MOTION TO
RE-OPEN PROCEEDINGS
 During arraignment the private
complainant did not appear, the
prosecutor and the defense entered into
a plea bargaining w/out the consent of
the private complainant bec he was not
around. Is the plea bargaining valid?>>>
YES BEC THE CONSENT OF THE PUBLIC
PROSECUTOR IS SUFFICIENT TO MAKE
THE PLEA BARGAINING VALID.
 A judge issued a search warrant, based
on the probable cause after the clerk of
court who is a lawyer conducted a
personal examination upon the witnesses
presented by the applicant. Is the
issuance of the search warrant proper?
>>> NO, IT SHOULD BE THE JUDGE
HIMSELF WHO MUST CONDUCT THE
SEARCHING QUESTIONS & ANSWER. IT
CANNOT BE DELEGATED, NAAY MGA
DAGHANG KASO NAABOT ANA SA SC, IT
CANT BE DELEGATED TO THE CLERK OF
COURT. “Also in one case, the judge
issued a SW based on a written questions
and answers of the witness. Meaning he
prepared questions unya gipa.answeran
didto sa witness. That should not be, the
question should be done orally & the
witness should also orally answer the
question.
 The accused is charged w/ murder bec
the killing was qualified by treachery w/
RTC. He was convicted w/ homicide bec
the court did not find sufficient charge of
treachery. When he appealed the case to
the SC, instead of acquitting him the CA
find him guilty of as charged bec CA find
sufficient ground for treachery. He filed
MR bec he said he cannot anymore be
convicted of the crime of murder bec the
trial court has ruled that there is no
treachery, arguing that the same would
violate his right againt double jeopardy. Is
he correct? >>>NO THE HIGHER COURT
HAS THE AUTHORITY TO REVIEW THE
ENTIRE CASE INCLUDING THE NATURE OF
THE CRIME COMITTED.
 The respondent is charged w/ murder
before the prosecutor’s office, instead of
filing counter-affidavit, the respondent
submitted MD on the ground of
prescription and lack of jurisdiction. Is the
filing of the motion proper?>>>NO
MOTION TO DISMISS IS NOT ALLOWED
BEFORE THE PROS.OFFICE BUT THE SAME
MUST BE ALLEGED IN THE COUNTER-
AFFIDAVIT.
 The accused who is charged for slight
physical injuries before the pros office
filed a motion to quash, on the ground
that is has not been referred to the Brgy.,
before filing to the court. Is the filing of
the motion proper?>>> YES, THAT IS
ALLOWED UNDER THE RULES ON
SUMMARY PROCEDURE. Gen. Rule that is
not allowed, however if the ground is lack
of jurisdiction or non-referral of the case
before the brgy., the same maybe
allowed, that is an exception.
 The initial presentation of evidence by
the prosecution has been reset, 4x
already on the ground that no
prosecution witness appeared. The
accused move to dismiss the case on the
ground that his right to speedy trial. The
court dismiss. The prosecution filed MR,
the accused opposed the motion invoking
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the right against double jeopardy? Is the
accused correct?>>> YES BEC
DISMISSAL BASED ON THE GROUNDS
THAT THE RIGHT TO SPEEDY TRIAL HAS
BEEN VIOLATED EQUIVALENT TO
DISMISSAL ON THE MERITS. Unsa
manang dismissal on the merits?
Meaning as if there has been
presentation of evidence.
 Can an order of the trial court discharging
a co-accused from the case so that the
pros could use him as a state witness be
reversed on appeal. Can that be changed
on appeal?>>>NO BEC THAT IS
EQUIVALENT TO ACQUITTAL. AN ORDER
DISCHARGING A CO-ACCUSED TO BE
UTILIZED AS STATE WITNESS CANNOT BE
SUBJECTED TO MR AND IT CANNOT ALSO
BE REVERSED ON APPEAL.
 What is the remedy if the accused has
not been assisted a counsel of his own
choice even if he invoked the same?
>>>THAT IS A GROUND FOR MOTION
FOR NEW TRIAL, remember irregularities
during the conduct of the trial.
 What is the remedy of the accused if he
pleaded guilty to a charged thinking that
he would be given a lesser penalty but he
learned that the penalty cannot be
lowered bec the penalty imposable is
invisible and he regretted to have done
the same.>>>FILE A MOTION FOR THE
WITHDRAWAL OF IMPROVIDENT PLEA OF
GUILTY.
 In a prosecution for the violation of BP 22
, can the private complainant reserved
his right to file for a separate civil action?
>>>NO BEC THAT IS NOT ALLOWED BY
THE RULES. That is prohibited, that is an
exception to the general rule.
 During for the pre-trial for rape, the
accused admitted having sexual
intercourse w/ the private complainant
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
but he said that it was done w/ the latter
consent. The admission was reduced into
writing and signed by the public
prosecutor and the defense counsel.
During the trial he changed lawyer and
this time upon the advise of his new
lawyer disowned his admission during the
pre-trial and raised self-defense. Is the
admission of the accused during pre-trial
admissible against him? NO BEC
ADMISSION DURING PRE-TRIAL TO BE
ADMISSIBLE AGAINST THE ACCUSED
MUST BE REDUCED INTO WRITING
SIGNED BY THE ACCUSED AND HIS
COUNSEL. But that is only during pre-
trial bec if the admission is made
during the trial the rqt that it must
be in writing and must be signed by
the accused and his counsel do not
anymore apply.
 The accused filed demurrer to evidence
in a case for estafa, the court granted the
demurrer, dismiss the case but ordered
the accused to pay civil liability. The
problem here is since the accused has
not presented evidence he was not able
to refute the evidence of the prosecution
as regards the civil liability. Is the
dismissal of the court but ordering the
accused to pay civil liability proper?
>>>NO BEC THE COURT SHOULD HAVE
DISMISSED THE CRIMINAL ASPECT BUT
ORDER THE ACCUSED TO PRESENT
EVIDENCE AS REGARDS THE CIVIL
ASPECT. [BAR-Q NI SIYA]
 What is the remedy of an aggrieved party
of the resolution of the DOJ Secretary?
>>>PETITION FOR CERTIORARI BEFORE
THE CA [Rule 65]
 Can prejudicial question be raised at the
preliminary investigation at the
prosecutors office.>>>YES IT CAN BE
RAISED EVEN DURING P.I.
 The Chief of Police of Cebu City filed for
an application of search warrant in Toledo
City instead of filing the same in RTC
Cebu City.In application he stated that
the subject of the SW is an influential
politician in Cebu City. Is the filing of SW
in Toledo City instead of CC proper?
>>YES FILING OF APPLICATION OF SW IN
ANY COURT W/IN THE JUDICIAL REGION IS
PROPER WHEN THERE IS COMPELLING
REASONS STATED IN THE APPLICATION.
 The accused is charged w/ the violation
of Sec 5.this is selling of RA 9165, the
defense and the public prosecutor agreed
that the accused would plead guilty to
the lesser penalty of possession under
Sec 11. Should the court approve the
same?>>>NO BEC PLEA BARGAINING IS
STRICTLY PROHIBITED UNDER RA 9165.
 The accused charged w/ homicide
pleaded guilty upon arraignment. He
asked that he be allowed to present
evidence establishing mitigating
circumstances so that the penalty could
be lowered further. However after
presentation of evidence it was found out
that the killing was done in complete self-
defense. The court acquitted the
accused, is the decision of the court
proper?>>>NO, THE COURT SHOULD
HAVE CHANGED THE EARLIER PLEA OF
GUILTY TO NOT GUILTY AND SHOULD
HAVE ALLOWED THE PROSECUTION TO
PRESENT EVIDENCE.
 The case is already submitted for
decision. While the judge is scanning
over the records, the judge discovered
that the accused has not yet been
arraigned. So the judge immediately set
the case for arraignment before the
promulgation. The accused pleaded not
guilty, then therafter case was set for
promulgation and the accused was
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convicted. The accused filed a motion for
new trial arguing that the entire
proceedings was void. Is the motion of
the accused meritorious? >>>NO BEC
THE ARRAIGNMENT OF THE ACCUSED
BEFORE PROMULGATION CURED THE
DEFECTS.
 What is the remedy of the accused who is
charged w/ rape, when the allegation of
rape was committed only sometime in
2005 and did not state the complete date
when the crime was
committed.>>>MOTION FOR BILL OF
PARTICULARS
 A complaint for less serious physical
injuries is filed before the prosecutor’s
office, th P.O did not conduct any P.I but
right away filed the case in court. Is the
action of the prosecutor’s office proper?
>>> YES BEC WHEN AN OFFENSE IS
PUNISHABLEBY 4 YRS, 2 MOS & 1 DAY OR
LESS, CONDUCT OF P.I. IS
DISCRETIONARY.
 The accused is charged w/ murder;
before his arraignment the public
prosecutor filed an amended information
w/out leave of court but the charge
against the defendant was downgraded
the charge of homicide,proper?>>>NO
SUCH AMENDMENT DOWNGRADING THE
CHARGE SHOULD HAVE LEAVE OF COURT
AND NOTICE TO THE OFFENDED PARTY.
 The accused was charged w/ parricide, he
filed a motion to dismiss on the ground
that his arrest was illegal and he was
deprived of P.I. The court granted the
motion to dismiss and released the
accused from detention, thinking that
there is no more case, so the accused
should be released, that is the belief of
the court. Is the action of the court
proper?>>> NO BEC ILLEGAL ARREST
AND ABSENCE OF P.I. DO NOT AFFECT
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
THE VALIDITY OF THE INFORMATION. In
this case, what should be the proper
course of action of the court? You
file a motion to avail of the P.I. w/in
5 days after learning of the filing of
the case..So unsa man tay buhaton
ani sa court, the court should have
denied the motion bec absence of
P.I. and illegal arrest does not make
the information void or di kaha the
accused can file a motion to quash
on what ground,on the ground that
the court has no jurisdiction over his
person by reason of illegal arrest.
 The mayor is charged for anti-graft and
corrupt practices act before the
Sandiganbayan. He was convicted,what
would be his remedy from conviction. He
was sentenced to suffer a jail term of 7
yrs min to 15 yrs max.>>>SC UNDER
RULE 45 APPEAL BY REVIEW ON
CERTIORARI, raising onlu pure questions
of law. Pero kung murder pa to ang
charge unya gi-sentensiyahan siya sa
Sandiganbayan ug reclusion perpetua,
unsamay remedy?...>>>NOTICE OF
APPEAL AT SC
 The accused convicted of attempted
homicide by the MTC he immediately
filed for probation however after 5 days
when he applied for his application on
probation he withdraw his application for
probation and filed a notice of appeal
before the court. Is the filing of the notice
of appeal proper? NO BEC WHEN YOU
FILE A PROBATION THE DECISION WILL
BECOME FINAL ALTHOUGH NOT
EXECUTORY BEC THE EXECUTION OF
SENTENCE IS SUSPENDED. YOU CANNOT
WITHDRAW THE SAME.
 The plaintiff filed an accion publiciana
and for forcible entry against the
defendants. The defendants filed a
motion to dismiss on the ground of
misjoinder of cause of action. Is the
motion meritorious? NO BEC MISJOINDER
OF CAUSES OF ACTION IS NOT A GROUND
FOR DISMISSAL . KANANG MISJOINDER OF
CAUSES OF ACTION, MISJOINDER OF
PARTIES, NON JOINDER OF PARTIES,
THESE ARE NOT GROUNDS FOR MOTION
TO DISMISS. Naas a Rule 16 although
daghan wala ma mention diha na
grounds for dismissal, kana diay violation
against forum shopping, non payment of
docket fees, but these are grounds for
dismissal.
 The accused is convicted by 1 st level
court attempted homicide he filed a
notice of appeal. Since the accused is
recidivist the trial court cancelled the bail
and order the arrest of the accused. Is
the action of the court proper?>>>NO
BEC BEFORE & AFTER CONVICTION BY 1 ST
LEVEL COURTS BAIL IS A MATTER OF
RIGHT. Kanus-a man diay tong di puydi
mu bail nga kining recidivist,repeater, ah
sa RTC to siya when the penalty is more
than 6 yrs and any of the circumstances,
duna man toy 5. So more than 6 yrs
coupled w/ any of the circumstances then
the discretion of the RTC to grant bail is
lost.
 The accused was caught in a check point
and there are 2 firearms recovered from
his possession, one is caliber 45 where
the penalty is prision mayor over 6 yrs
and caliber 38 wherein the penalty is
prision correccional meaning does not
exceed 6 yrs. Now the prosecution just
file one information, can the information
be subjected to motion to quash?
>>>YES BEC MORE THAN 1 OFFENSE IS
ALLEGED, WHY BEC THERE ARE 2
OFFENSES HERE, BEC ANG RTC WAY
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JURISDICTION SA CALIBER 38 W/C IS LOW
POWERED FIREARM. SO THEREARE 2
GROUNDS, BEC THE INFO CHARGES
MORE THAN 1 OFFENSE AND BEC THE
COURT HAS NO JURISDICTION OVER THE
CALIBER 38 FIREARM. Pero kung puros
caliber 45 pato siya, there should only be
1 charge. [BAR-Q NI]
 A case for acts of lasciviousness is filed
against the accused, however the case
was filed thru an information signed by
the public pros., not by the complainant.
What would be the ground for the motion
to quash?...>>>LACK OF JURISDICTION
FOR THE OFFENSE CHARGED not that the
officer has no authority to do so.
 The accused charged w/ homicide during
the arraignment he did not appear bec he
already went abroad, the court cancelled
his bail and issued warrant for his arrest
then the court subjected him to trial in
absencia and after the trial convicted
him. Is the decision valid?>>> NO BEC
ARRAIGNMENT IS A PREREQ IN A TRIAL IN
ABSENCIA
 The accused filed a motion to quash on
the ground that the facts charged do not
constitute any offense. The court
however dismissed the case but not on
that ground but on the ground that the
officer who filed the info., has no
authority to file the same bec it was not
approved by the city /prov prosecutor. Is
the action of the court correct?>>>NO
THE COURT CANNOT CONSIDER OTHER
GROUNDS OTHER THAN ALLEGED IN THE
MOTION.Dili pwede na magbuot2x siya,
kato rang gistate didto sa motion to
quash maoy iyang basehan. Nganu
man,there are grounds of motion to
quash that can be waived,so if that
ground is not alleged in the motion the
accused is deemed to have waived the
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
same. But there are exc.,where the court
may consider this ground even if this
grounds are not alleged in the motion.
What are these grounds? Lack of
jurisdiction, double jeopardy, etc…
 A civil case has been filed against a
person bec he bumped a pedestrian
resulting in the latter’s death. The cause
of action is tort art. 2176, later on the
widow filed anther action of reckless
imprudence resulting to homicide against
the defendant. What is the effect of the
filing of the criminal case to the civil
case?>>>THE PROCEEDINGS OF THE 2
CASES SHALL PROCEED INDEPENDENTLY
 Convicted of violation of Sec 5, selling by
RTC and the accused was sentence to life
sentence, he appealed the frm the
decision to CA by filing a notice of appeal
with RTC. If the CA affirms the decision of
the CA what is the remedy from the CA
decision? >>>BY ORDINARY APPEAL
THRU NOTICE OF APPEAL TO SC UNDER
RULE 45,pero nganu rule 45 pero dili man
petitition for review, nganu notice of
appeal man? That is an exception to the
rule, in criminal cases wherein the
accused is sentenced by the CA of recl
perpetua/life sentence the case can be
appealed to the SC by mere notice of
appeal.
 X killed Y since the police failed to get
any witness, no case was filed against X.
However, a month therafter, an eye
witness went to the police and pointed X
as the killer. Fearing that the killer might
escape, the police right away arrested
him w/out warrant and charged him w/
murder before the prosecutor’s office.
Upon inquest the pros found out that the
arrest was illegal.If you are the inquest
pros what would be your proper course of
action?>>>RELEASE THE ACCUSED AND
SUBJECT THE CASE TO REGULAR P.I.
 The accused was validly arrested for
killing his neighbor. When subjected to
inquest proceedings, can he avail of a
prelim. Investigation?>>> YES
PROVIDED HE WOULD SIGN A WAIVER
UNDER ART 125 OF RPC. Can he post bail
for the meantime? YES BUT WHERE AT,
he must file a petition at the court bec
the prosecutors office is not allowed to
accept bail.
Last meeting we discuss about offer.
So formal offer. Remember when does a party
make a formal offer of his exhibits, documentary
and object. And remember also when does a
party make an offer of his testimonial evidence. A
testimony of a witness is offered before a start of
his direct examination or upon calling the witness
at the witness stand. After the witness gives his
personal circumstances, then the counsel/ the
party offering his testimony will now state for the
record the purpose of his testimony, purpose
gani,meaning unsa may facts nga i-establish
anang iyang testimony. Kung object man, unsa
may facts nga i-establish ana.
February 3, 2013 3rd part
Like Lapu-lapu, a highly urbanized city, but there
is only one court, one MTCC court. So unsaon
man nah pag-dispose dayon. So dugay mahuman
ang kaso.
Naay pay mga bakante na mga courts, dili pud
fill-upon.
Judicial Affidavit Rule will shorten the time for
direct examination.
“SECTION 1 . Preponderance of evidence, how
determined. — In civil cases, the party having
burden of proof must establish his case by a
preponderance of evidence. In determining
where the preponderance or superior weight of
evidence on the issues involved lies, the court
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may consider all the facts and circumstances of
the case, the witnesses' manner of testifying,
their intelligence, their means and opportunity of
knowing the facts to which there are testifying,
the nature of the facts to which they testify, the
probability or improbability of their testimony,
their interest or want of interest, and also their
personal credibility so far as the same may
legitimately appear upon the trial. The court may
also consider the number of witnesses, though
the preponderance is not necessarily with the
greater number. (1a)”
SC said testimonies are not numbered, but
weigh.
Kani sa demeanor sa witnesses, kinsa dunay first
hand? Trial Court. So mao nah basehan sa
Supreme Court. Findings of facts by the trial court
are binding upon the SC. What about criminal
cases.
“Sec. 2 . Proof beyond reasonable doubt. — In a
criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof,
excluding possibility of error, produces absolute
certainly. Moral certainly only is required, or that
degree of proof which produces conviction in an
unprejudiced mind. (2a)”
In a criminal case, what is the amount of the
evidence required? Proof beyond reasonable
doubt. If the prosecution failed to present
evidence that amounts to proof reasonable
doubt, the accused has to be acquitted.
What do you mean by proof beyond reasonable
doubt? Does it mean that there is absolutely
certainty? NO. What is required is merely moral
certainty.
What is moral certainty? That degree of proof,
which produces conviction in an unprejudiced
mind.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Basi magtuo man n demeanor of evidence, ari ra
nah siya sa civil cases, dili. All thoses matter
mentioned in Section 1, demeanor, etc., apil nah
siya. Apil nah siya sa Section 2.
What do you mean by equipoise rule? Doctrine of
Equipoise? When the evidence presented by both
parties is of equal weight, the accused has to e
acquitted. Equal man. PAreho pud nah sa civil na
kailangan man mutagilid jud ang timbangan. One
of the parties is able to present superior
evidence. Takilid gamay ang timbangan.
Whereas, proof beyond reasonable doubt, tagilid
jud kaayo. If even gani sa civil, the party who has
the burden of proof losses the case. In criminal,
the burden is always upon the prosecution, then
the prosecution loses the case. Meaning the
accused has to be acquitted.
Doctrine of Equipoise is related to Doctrine Pro
Reo. What is Doctrine Pro Reo?
It is one when a circumstance is capable
of two or more interpretations, one which is
favorable to the accused shall be adopted. For
example, according to the prosecution witnesses
they aw the accused running away when they
heard explosion together wt hither people. The
act of running away is capable of 2 or more
interpretations. The one favorable to the accused
must be adopted.
From Jurisprudence from the book of Rigalado:
Evidence to be believed must not only proceed
from the mouth of a credible witness, but the
testimony must be credible itself. And that to be
believed , evidence must be in accordance with
ordinary human experience. The general rule is
that finding of the trial court as to factual issues
are binding upon the appellate court. Meaning
findings of the trial court as to WON testimony of
witnesses is credible or not, that would be
binding upon the accused (appellate court guro).
Inconsistencies which refer to minor maters, to
the testimony of the witness does not affect the
credibility of the witness but instead it would
strengthen his credibility. That he was not
rehearsed. But inconsistencies refer to serious
matters, then that will now affect his credibility.
Is the testimony of a single witness sufficient to
convict an accused? YES! As long provided that it
is credible.
Inconsistencies or contradictions or minor details
in the testimony of the witness do not affect the
credibility of the witness but rather instead of
destroying the witness it would enhance his
credibility. Such contradiction would indicate
veracity that preveracation, MASTA MINOR. If
SERIOUS, that would now affect the credibility fo
the witness.
What about falcus in onum omnivus (?)? False in
one false in whole. Meaning when a part of the
testimony of a witness is found t be unbelievable,
then the entire testimony of the witness would be
unbelievable also. Is it followed in our
jurisdiction? SC said NO. because if the court
believes that a proportion of the testi of witness
is not worthy to believe, then the court may
disregard such part of the testimony of the
witness. And admit the remaining which it
believes to be true.
What about affirmative vs negative testimony?
Pananglitan muingon ang prosecution rape
victim, the accused raped me. Affirmative. Ingon
accused, no I was not there I was not in Cebu
when the allege crime occurred. Negative. Asa
man mu-prevail ana, positive or negative denial
or alibi? Positive, provided credible pud! Bisag
puro sila credible, mu-preveail gihapon ang
affirmative.
Pananglitan, positive identification vs denial.
Prevail jud positive identification.
SC said affirmative defense vs. negative defense,
the affirmative defense shall prevail.
When a woman says that she has been raped
and she is credible, her testimony is credible, she
says all what is required to convict the accused.
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Delay of a witness in revealing to the authorities
what he knows about the crime? You call it
vacillation. Meaning delay. Does it affect the
credibility of the witness? NO, if the witness could
explain why he did not immediately revealed.
Example, if you were raped? If not immediately
reveal if patyon siya ug other person. The delay
is valid.
Another, affidavit vs. open court testimony.
For example, witness executed an affidavit and
when testimony in court, there are statements in
the affidavit is contrary to his statement in open
court. OPEN COURT TESTIMONY will prevail.
Why? Because ang affidavit is incomplete for
want of suggestion and inquiries. And the
statements there are usually not of the witness.
Because an affidavit is prepared not by the
witness himself but by other person.
Minor discrepancies between the affidavit and
open court testimony it could not affect the
credibility of the witness, BUT it will enhance.
Why because that would mean that the witness
has not been rehearsed. BUT if the testimony of
the witness and the affidavit is perfectly
identical, the court would be careful. Because it
could be that witness is memorizing his affidavit.
BUT! If the discrepancies or inconsistencies are
serious, meaning material matters, it will now
affect the credibility of the witness. UNSOAN man
nimo pag-impeach? Take note ato! Section 13
Rule 132. VERY IMPT!
The same with omission in the affidavit. So, if
there are minor matters which you failed to state
in ur affidavit, it will not affect your credibility.
But there are impt matters, very imp which u
should have stated in the affidavit, especially if
you are the complaining witness, unya importanti
kaayo wa nimo masulti sa imo affidavit, that will
now affect ur credibility.
Alibi. Or Excuse. Alibi means the accused is in
another place. The accused is in the place other
than the place of the commission of the crime. If
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
you raised alibi, you are not denying the charge.
What are the requisites in order for alibi to
prosper? Aron madismiss jud ang kaso kung
mu0raise kag alibi. These 2 elemenst must be
present:
1. The accused must prove that he wa in a
other place at the time the crime
committed
2. That it was physically impossible for him
to be present at the crime when it was
committed. Ex.: At the time of the crime
occurred, I was in Argao. Is it physically
impossible for you to be present in the
crime scene? NO. Why? Because of the
means of transportation. Mayman naa ta
sa karaang panahon na sakay pa ta
kabayo or balsa.
In the case of People vs. Laranaga, Larannaga
raised the defense of alibi that he was in Manila.
But SC said it is not physically impossible for the
accused to be present in Cebu because of the
faster means of transportation. Because the flight
time between Cebu and Manila is more or less
1hr.
In the case of Web, in US. In appeal, it was
accepted, not because of alibi but because of
weak evidence of prosecution.
SC said alibi is one of the weakest defenses.
Why? It is easy to fabricate. #2 Elements!
Does it mean that when accused raised the
defense of denial or alibi, does it mean that his
conviction is inevitable? Wa na jud ba kapaingnan
iyang kaso, convcto nab a jud siya? NO! Why?
Because according to the SC, remember that
conviction does not rest on the defense of the
accused. Conviction rest in the evidence of the
prosecution.
SC said when the accused raised the defense of
alibi, the court should not be frown upon such
evidence. The court should not immediately
frown upon that evidence. Because there are
times when the accuses has no other defense but
alibi or denial, if it is really the truth.
Is proof of motive necessary for the conviction of
the accused? Generally, NO. But there are times
that motive is important when we discussed
direct assault. It is impt specially when the attack
is made when the victim is not in the actual
performance of his duites. Proof of motive is
important.
Sec. 3 . Extrajudicial confession, not sufficient
ground for conviction. — An extrajudicial
confession made by an accused, shall not be
sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (3)
Example, the accused. Before the case was filed
in court. He made extra judicial confession
during custodial investigation, duly assisted by
the counsel. Would that be sufficient to convict
him on such extra-judicial confession? NO! The
prosecution is still duty bound to prove corpus
delicti. Now, in every criminal prosecution, and
prosecution dunay duha ka dagko na trabaho, 1.
The prosecution must be able to present proof
regarding the commission of the crime. 2.
Evidence that it was the accused who committed
it.
- So in other words, the prosecution
must be able to establish the crime,
must be able to present proof that
the accused was the on who
committed it. Pananglitan in the
crime of murder. The Prosecution
must be able to prove that there was
soemdbody lilled, and the killing was
not justifiable and attended by the
qualifying the circumstances. There is
crime and the crime committed is
murder. Present evidence on these
matters. Gawas ana…..
Pananglitan in the crime of murder, so
the prosecution must be able to prove that there
was somebody killed and the killing must not be
justifiable and that the killing was attended by
any of the qualifying circumstances that would
qualify the killing to murder. So there is crime
Page | 419

and the crime committed is murder. So kung
present siyag witness nga dihay gipatay unya the
killing was killing by any of the qualifying
circumstances.
That gawas ana the prosecution must
also be able to prove that the one who
committed the murder was the accused. Kay
possible man nga ang ilang ma establish ang
crime ra. There was murder, somebody was
killed pero wa pa man maka present ug proof nga
ang akusado gyud then the accused has to be
acquitted.
Now diri kung pananglitan ang accused
mi execute ug extra-judicial confession sa ato pa
gi angkun na niya nga siya gyud. He admitted
that he is the one who committed the crime. But
that would not relieve the prosecution the duty to
present proof to establish the commission of the
crime or the corpus delicti. Pananglitan mi ingun
ang accused nga “O, ako gyud toy nakapatay.”,
unsa ma na convictuhon ka na siya sa Korte? Ah
dili. Kinahanglan nga mu present pa gyud ug
prueba ang prosecution nga somebody was
killed. Present a death certificate that the killing
was attended with any of the aggravating
circumstances. Meaning to say that the
prosecution has still to prove the crime of
murder. If the prosecution fails to prove the
crime of murder then the accused has to be
acquitted.
Another for example ang accused,
mupirma, mi admit sa police during custodial
investigation nga siyay nanulis, siyay
nanglungkab, sulod siya didto sa eskwelahan
unya iyahang gipangkuha ang butang didto, that
is robbery. Or ni sud siya didto sa simbahan, sa
Sto. Nino, at night time giguba niya ang ceiling
unya iyang gi admit nga giguba niya ang ceiling
unya kuha siyag pisi mura siyag superman unya
pag didto na siya sa sud iyang gikuha katong
mga offering panahon sa Sinulog. That is
robbery. Iyahang gi admit. Duna siyay extra-
judicial confession. Kana iyang confession that
would not be enough to convict the accused. So
unsa may buhaton sa prosecution para ma
convict siya ug robbery? The prosecution has to
present witness that there was opening made sa
ceiling unya that there was personal item taken
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
so robbery. That is the so called corpus delicti
meaning proof regarding the commission of the
crime itself. Unsa may corpus delicti sa robbery?
The prosecution has to prove that there was an
opening made through the ceiling and that after
the accused gained entry, took personal
properties from inside the church.
Extra-judicial confession is NOT enough
to convict the accused. That is different from
judicial confession. Kung mu plead guilty na siya
didto sa arraignment aw that would be enough to
convict him. Kung mu angkon siya. Naglibog
siguro mo ug nganung ni angkun siya unya di pa
man ma convicto. Nganu? Kay kanang akusado
gud mu angkon na sa police pero inig abot didto
sa Korte dili na ma na mu angkon, tambagan ma
na sa abogado, “Ayaw ug angkon uy, wa bitaw
witness.”. Kung ikay Fiscal e present nimu tong
extra-judicial confession unya you have to
present evidence to establish that there was
robbery. You present the priest to testify that
there was an opening made through the ceiling
and that money or personal property taken, the
amount, so robbery na. Now, proof regarding the
commission of robbery plus the extra-judicial
confession of the accused that would now be
sufficient to convict the accused.
Kung extra-judicial confession ra, mi deny
ang accused during arraignment, plead not
guilty, unya imu tong pamarkahan tong extra-
judicial confession, ipa-identify nimu ang witness,
aw that would NOT be enough. Pero kung mu
plead guilty gyud siya ang pwede na siya e
convicto. Nganu man? Sa confession na ma na
niya. That is a judicial confession. Lahi ang
judicial confession lahi ang extra-judicial
admission.
What do you mean by CORPUS
DELICTI? The commission of the crime.
CIRCUMSTANTIAL EVIDENCE
What do you mean by
CIRCUMSTANTIAL EVIDENCE? We call
INDIRECT EVIDENCE. Meaning there is no direct
evidence which directly prove the facts in issue.
Pananglitan ang fact in issue is accused muy
nang dunggab, wa man nakakita nga siya gyuy
gadunggab so way direct evidence. There is no
evidence that would directly point to the accused
that he was the one who stabbed the victim. So
unsa may buhaton nimu? Does it mean that the
accused has to be acquitted because there is no
direct evidence? That there is no eyewitness?
No. Because his participation in the commission
of the crime could be proven by indirect
evidence. Now circumstantial evidence is
sufficient for conviction if there is more that one
circumstance meaning two or more
circumstances.
Example, the facts from which the
inferences are derived are proven. Meaning
there are inferences that are to be drawn from
the facts. From the evidence presented
inferences are to be derived. And the
combination of both the circumstances will prove
in such as to produce a conviction of proof
beyond reasonable doubt.
For example sa circumstantial evidence,
way nakakita sa accused, X, nga maoy nagpatay
ni Y. Pero 1st circumstance - the prosecution
presented the witness that a day before the
incident, a day before the dead body of Y was
found, X and Y had a fist fight. They had a fist
fight wherein X had no match to Y, lupig gyud
siya ni Y unya dayon niya biya ni Y ana siya, “Wa
pa ta matapos ha.”. So the prosecution
presented an evidence nga there was a fistfight
between the two. So that is 1st circumstance. 2nd
circumstance – when he was arrested found in his
possession was a blooded shirt. Aside from that
taken from his possession was also a firearm and
when subjected to ballistic examination it was
concluded that the bullet that killed Y came from
the firearm of X. Dili ba katong firearm usa na
sad to siya ka circumstance? Another katong
shirt nga nagkadugo lain na sad nga
circumstance. So there are now at least 2
circumstances. Now if you combine these
circumstances would it not produce a conviction
beyond reasonable doubt? They would labi na ug
pun-an pa gyud na nimu.
Why is it that the rules allow
circumstantial evidence as sufficient for
conviction? Because to require all the time direct
evidence, many cases would result in dismissal of
criminal cases and would deny proper conviction
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to society because usually crime is committed in
secret and under conditions where concealment
is highly probable. Sagad, daghan ug mga
crimes nga gi commit na nila nga walay mga
witness.
Do you now understand circumstantial
and distinguish it from direct evidence? The
opposite of circumstantial evidence is DIRECT
EVIDENCE.
In one case the Supreme Court convicted
the accused based on circumstantial evidence.
Parricide.
Here are the circumstances, prior to
incident (kani lisud ni kay gipatay unya gisunog
ang iyang asawa so wa gyud witness kay patay
man). Now the prosecution presented evidence
to establish the following circumstances:
(1) The spouses had a quarrel
immediately before the incident.
(2) When the house was on fire the
accused was told about it but did not do anything
to save his house and his wife.
(3) He ran to the sugarcane field instead
to the municipal hall about 400 meters away.
(4) When caught, he was found in
possession of a knife and a matchbox.
Are those circumstances sufficient to
convict the accused? The Supreme Court said
yes, PP vs. Gonzales, February 21, 1990.
SUBSTANTIAL EVIDENCE
What do you mean by SUBSTANTIAL
EVIDENCE? This is the amount of evidence used
in administrative or quasi-judicial bodies which
means that substantial evidence or the amount
of relevant evidence which a reasonable mind
may accept as adequate to justify a conclusion.
This was asked in the bar. What is the
difference between evidence and substantial
evidence? Evidence is the means of proving the
fact whereas substantial evidence is the result of
evidence.
Now earlier we have learned that a case
may not be won solely by reason of the number
of witnesses. Because a party even if he has
only one witness may win against the adverse
party who has presented more that one witness.
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
In a case for example where a party has
presented shall we say 10 witnesses to prove the
same fact and that party wants to present more
witnesses, can the court order deny the
admission of more evidence? Now look at Sec. 6.
The Court has the power to stop further
evidence.
SEC. 6. Power of the court to stop further
evidence. – The court may stop the
introduction of further testimony upon any
particular point when the evidence upon it
is already so full that more witnesses to the
same point cannot be reasonably expected
to be additionally persuasive. But this
power should be exercised with caution.
For example the accused would raise the
defense of alibi and he reasoned out that at that
time he was in Boracay, swimming with his 20
friends more or less unya to establish his alibi he
testified for himself unya aside from his
testimony he presented 4 or 5 of his friends and
he wanted to present the 15 others in order to
establish his defense of alibi to prove that he was
really in Boracay. But suppose the court would
not allow him to present the 15 others. Is the
court correct? The answer is YES because under
the rules particularly Sec. 6 of Rule 133, the court
has the discretion to stop the introduction of
further evidence or testimony when the
presentation of the same would not anymore be
additionally persuasive.
Unsay kalainan sa Cumulative ug
Corroborative?
CUMULATIVE vs. CORROBORATIVE
When you say Cumulative meaning the
same evidence tending to prove the same point.
For example you establish that you are in
Boracay, you present yourself and at the same
time next to yourself you present your friend
then the testimony of your friend which is
testimonial, so that would be considered
cumulative. Pero kung present ka for example ug
ticket to prove that you were in Boracay, now ang
imung plane ticket ang purpose ana is to
establish that you were in Boracay and that is
another form of evidence, you call it
corroborative. Different form ang evidence but to
prove the same point. Katong cumulative, the
same form of evidence to establish the same
point.
Another if a party files a motion and
there is a need to present evidence now the court
may allow the movant or the party fling the
motion to present evidence. For example you are
filing a motion to suspend the proceedings on the
ground of prejudicial question, then the court
may require you to present evidence regarding
the prejudicial question. Or you are filing a
motion to show that the accused is a minor and
that the court has no jurisdiction then the court
may require you to present the birth certificate of
the accused to establish your motion.
That is evidence under the Rules.
Now duna koy gihatag ninyu nga notes
regarding commonly used objections. So that it
would be easier for you to use the commonly
used objections.
An objection is a procedure used to
oppose the introduction of improper evidence or
to oppose an inappropriate behavior or
procedure. In other words kanang objection, you
can object not only to the presentation of
evidence but also to improper behavior such as
of the counsel, such as of the witness, you can
object.
ORAL EVIDENCE meaning testimonial
evidence is objected to after its formal offer
before the witness starts his testimony on direct
examination or in other words when the witness
is called to testify. Thereafter, if the witness is
allowed to testify you still have a chance to
object when a question is asked the adverse
party can raise an objection.
By the way suppose the, di ba there must
be an offer of the testimony before the start of
direct examination? Here is a case, the counsel
conducted direct examination and forgot to make
a formal offer before conducting his direct
examination. After the counsel conducted his
direct examination, so the court is now asking
the defense counsel to conduct his cross. The
adverse counsel said “I have no cross your honor
but instead we move that the testimony of the
witness be stricken off the record because there
was no offer. Under the rules your honor the
court cannot consider in evidence which was not
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formally offered.” Should the court delete the
testimony of the witness on direct for lack of
formal offer? Anus.a gani to nimu e formal offer?
Before the start of the direct examination. In
this case the counsel offering the witness did not
make a formal offer, should his direct testimony
be deleted from the record? According to the
Supreme Court, NO, because for failure of the
adverse counsel to make an objection before the
counsel started his direct examination he is
deemed to have waived that objection.
What about DOCUMENTARY EVIDENCE
and OBJECT EVIDENCE when is it objected?
When the same are formally offered. Dunay
uban di ba during pre-trial mag marking ma na,
mu ingun dayun, “Your honor we request that the
deed of sale be marked as our exhibit A.”, mu
ingun dayun ang pikas, “Your honor we object
that would be a violation of the best evidence
rule because what would be marked is only a
machine copy.” Is the objection proper? NO
because the document was not yet offered. You
wait because the document is not yet offered in
evidence. Ang uban gud mag tuo nga inig marka
mao na nay offer, DILI. Marking ra gyud na. Ang
offer kana pa nang inigka human pa ug present
ug evidence by the party. Now when there is no
objection that would be considered waived.
Now, there are two kinds of
objections. What we call formal or substantive.
FORMAL that refers to the form of the question.
SUBSTANTIVE that refers to the law, it could be
as provided by the Rules of Court or as provided
by the Constitution or other laws.
FORMAL OBJECTIONS
Example sa formal objections. LEADING
– one which suggests the answer to the witness.
That is not allowed but there are circumstances
or instances wherein that is allowed, one when
the witness is child, ignorant or during
preliminary matters when the questions refer to
the preliminary matters. During cross
examination leading questions are allowed.
There are instances wherein leading questions
are allowed but MISLEADING question is
absolutely not allowed.
Dunay laing objection nga dili kaayu mu
familiar ani. Kanang NO BASIS or FAILURE TO
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
LAY THE BASIS. Common kay ni ngadto sa
Korte. Kaning no basis mao ni siyay opposite ug
mupareho sa misleading. Kanang misleading
usually ang nangutana sa question imung kontra.
Kaning no basis ikaw maoy nangutan mismo sa
imung witness. Unya you failed to lay the basis.
For example “failure to lay the basis”, or
“no basis”, mu ingun ka “Mr. Witness showing to
you a deed of sale, is this the document that is
the proof of your contract of sale between you
and the defendant?” Now that question is
objectionable. Why? Because you have not
asked yet the witness that the contract of sale
was reduced into writing. So unsaun ma na
nimu? Sa dili paka mangutana ani ingunun sa
nimu, “Now Mr. Witness you said a while ago you
entered into a contract of sale over a parcel of
land with the defendant, was that contract
reduced into writing?” Mu answer “yes”. Mao na
na. Mao toy basis nimu. “Showing to you a deed
of sale, is this the document you are referring to
that is the proof of the contract of sale between
you and the defendant?” “yes.” So di ka mu
derecho, ibutang usa nimu ang basis. You have
to lay first the basis.
Pananglitan, dunggab, “I was stabbed.”
Mu ingun dayun ka, “showing to you a medical
certificate what relation has this to the incident?”
“No basis your honor.” Nganu wa may basis?
Because that witness has not yet testified that he
was brought to the hospital and seen by the
doctor. So imu sa nang pangutan-un “now after
you were stabbed what did you do?” “I was
rushed by my friends to the hospital.” “And upon
reaching to the hospital what happened?” “I was
treated by a doctor.” “Do you have any proof
that you have been treated by the doctor?”
“Yes.” “Showing to you a medical certificate is
this the one?” “yes.” Do you know now what is
basis?
So kung e derecho ran a nimu, no basis.
Ayaw ug derecho, step-by-step jud na. Kunga
magpa identify ka ug document e lay usa ang
basis, nganu man nga naa ma na siya?
Then DOUBLE/MULTIPLE QUESTIONS,
there should only be one question. “Where were
you?” So ug mu ingun nimu “Where were you
and what were you doing?” Objectionable. But if
you do not object deemed waived.
EMBARRASSING/INSULTING. “Is it not
the prior to the present work you were working
as a GRO?” “You went to Japan and worked as a
Japayuki.” That would be embarrassing or
insulting.
REPETITIOUS or ALREADY
ANSWERED. So if a question has already been
asked and has been answered by the witness and
then again the counsel is repeating the question.
“Objection your honor repetitive or already
answered.”
ARGUMENTATIVE meaning the counsel
now is already arguing with the witness.
CALLING FOR A NARRATIVE ANSWER.
You are now presenting a witness, can you just let
the witness, “Mr. Witness tell us what you know
about this case?” Is that allowed? So you
cannot. Objection your honor the question calls
for a narrative answer.
FAILURE TO LAY THE PREDICATE.
Kahinumdum mu last meeting kato bitaw mu
impeach ka ug witness, you have to lay the
predicate meaning you have to confront the
witness on the alleged inconsistent statement
and give the witness an opportunity to explain.
You can also object to the manner of
questioning made by the counsel. For example
the counsel is very near to your witness unya
hapit na lang bukbukon ang ulo and the witness
is now shivering. You can object to the MANNER
OF QUESTIONING OF COUNSEL and you ask
that the counsel not to harass my witness.
SUBSTANTIVE OBJECTIONS
Now what are some of the SUBSTANTIVE
OBJECTIONS? Meaning based on provision of law.
So you may say “Your honor we object on the
ground that the QUESTION CALLS FOR
IRRELEVANT/IMMATERIAL ANSWER.” For
example a question is asked regarding a matter
which is not alleged in the complaint. For
example ang plaintiff nangutana ug question
unya wa ma na gibutang sa complaint that is
irrelevant. But remember ug dili mu na objectan
waived and the complaint is deemed amended.
Kung dunay evidence nga e produce the
complaint is deemed amended or kung answer
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na the answer is deemed amended to conform to
the evidence presented.
Another, unsa ma nang INCOMPETENT
EVIDENCE? When it is contrary to law. Lain pud
na sa incompetent witness ha. Kanang
incompetent mu ingun ka “objection your honor
witness is incompetent” it means that the
witness has no personal knowledge. Lahi pud na
siya sa incompetent evidence.
Then HEARSAY EVIDENCE, not
admissible except if the said belongs to the
exceptions to the hearsay rule or considered as
independently relevant facts. Unsa to nang
INDEPENDENTLY RELEVANT FACTS? The
purpose is to prove that there was such
statement given and not to prove the fact
asserted in the statement. MEMORIZE JUD NA
NINYU!!!!
Then another, so if a witness is presented
and for example you presented a doctor and you
have not qualified him as an expert, di ba
gisultian na ta mu, nga kung duna kay witness
nga e present nimu as an expert, ipa identify jud
na nimu, ihatag nimu ang iyang qualifications as
an expert. Wa gani nimu gi qualify as an expert
you cannot ask his expert opinion and if a
question is raised then that would be
objectionable on the ground that the witness is
incompetent.
Sa ato nya exam you can expect
questions and I will let you identify what would
be the proper objections.
Then OPINION. Generally an opinion of
a witness is not allowed but there are instances
wherein opinion of a witness even an ordinary
witness is admissible. Take note of those,
signature, identity, sanity, etc.
BEST EVIDENCE RULE. What do you
mean by best evidence rule? Memorize na ninyu.
PAROL EVIDENCE RULE.
PRIVILEGE COMMUNICATION. That is
a ground for objection. A wife is presented to
testify on matters which she learned during the
marriage. Privilege communication.
QUESTION IS SPECULATIVE OR
HYPOTHETICAL. Mu ingun, “suppose the victim
Mr. Witness was not brought to the hospital could
you say that the victim could have lived or could
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
have survived from his wounds?” That is
speculative. Supposing, assuming that is
speculative, hypothetical. That is objectionable.
That is only allowed when you are asking an
expert witness. “What could have been the
cause of the death?”
RIGHT AGAINST SELF-
INCRIMINATION. For example imung
gipangutana, “Is it not Mr. Witness that before
you were using drugs?” Incriminatory.
CHARACTER EVIDENCE OF THE
ACCUSED. Remember that the prosecution
initially cannot present evidence of the bad
character of the accused. Anus-a man maka
present ang prosecution ug evidence on
character? Only on rebuttal. Pero pananglitan
ang prosecution mu present ug evidence of good
character of the accused, admissible? Kataw-
anan na siya kay nganu mu present man siya ana
nga iya ma nang kontra. But that is admissible.
DEFECTIVE CONFESSION,
ADMISSION, VIOLATION OF THE SO CALLED
MIRANDA DOCTRINE but remember that
defective confession can be admitted in evidence
against the law enforcers who violated the same.
(Kani nga paragraph please ko check sa inyu
notes kay paspas kayo si JD di ko sure if I heard
the right words)
RES INTER ALIOS ACTA. Kahinumdum
mu sa res inter alios acta? There are two kinds.
Then dunay uban kanang mu object
imbis nga legal grounds ang e object mu explain.
For example “Objection your honor, violation of
the best evidence rule your honor because your
honor ….. (mu explain)” We do not allow that.
For example mu ingun, “objection your honor
misleading because your honor what the witness
has said your honor is that….” The counsel now
is not telegraphing to the witness what should be
the answer to the question. Do not allow the
counsel to explain. Unsa ra may ihatag sa
counsel? Just the legal grounds. Misleading, only
up to that unless the court will allow him to
explain.
Now we have discussed this already.
Instances wherein the answers of the witness can
be stricken off from the record. (1) when the
witness answers prematurely (2) when the
answer of the witness is unresponsive (3) when
the answer of the witness is immaterial (3) when
the testimony of the witness was not completed.
February 3, 2013 6th part
February 4, 2013
February 4, 2013 1st part
…con’t on RULE ON EXAMINATION OF A
CHILD WITNESS
Section 4. Definitions. -
(a) A "child witness" is any person who at
the time of giving testimony is below the
age of eighteen (18) years. In child abuse
cases, a child includes one over eighteen
(18) years but is found by the court as
unable to fully take care of himself or
protect himself from abuse, neglect,
cruelty, exploitation, or discrimination
because of a physical or mental disability or
condition.
(b) "Child abuse" means physical,
psychological, or sexual abuse, and criminal
neglect as defined in Republic Act No. 7610
and other related laws.
(c) "Facilitator" means a person appointed
by the court to pose questions to a child.
(d) "Record regarding a child" or "record"
means any photograph, videotape,
audiotape, film, handwriting, typewriting,
printing, electronic recording, computer
data or printout, or other memorialization,
including any court document, pleading, or
any copy or reproduction of any of the
foregoing, that contains the name,
description, address, school, or any other
personal identifying information about a
child or his family and that is produced or
maintained by a public agency, private
agency, or individual.
(e) A "guardian ad litem" is a person
appointed by the court where the case is
pending for a child who is a victim of,
accused of, or a witness to a crime to
protect the best interests of the said child.
(f) A "support person" is a person chosen
by the child to accompany him to testify at
or attend a judicial proceeding or
deposition to provide emotional support for
him.
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(g) "Best interests of the child" means the
totality of the circumstances and conditions
as are most congenial to the survival,
protection, and feelings of security of the
child and most encouraging to his physical,
psychological, and emotional development.
It also means the least detrimental
available alternative for safeguarding the
growth and development of the child.
(h) "Developmental level" refers to the
specific growth phase in which most
individuals are expected to behave and
function in relation to the advancement of
their physical, socio-emotional, cognitive,
and moral abilities.
(i) "In-depth investigative interview" or
"disclosure interview" is an inquiry or
proceeding conducted by duly trained
members of a multidisciplinary team or
representatives of law enforcement or child
protective services for the purpose of
determining whether child abuse has been
committed.
Child Witness:
It is any person who at the time of giving
testimony is below eighteen (18). However in
Child abuse cases, a child includes one above
eighteen (18) years but is found by the court as
unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation,
or discrimination because of a physical or mental
disability or condition.
Child Abuse: (wala na basaha ni JD. Refer
nalang sa codal)
Facilitator: JD: It’s a matter of reading. 
Best interest of the child:
We have discussed this when we
discussed RA 9344 the Juvenile Justice Welfare
Act. Best interests of the child means the totality
of the circumstances and conditions which are
most congenial to the survival, protection, and
feelings of security of the child and most
encouraging to his physical, psychological, and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the child.
Developmental level:
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Refers to the specific growth phase or
level. Pananglitan bata then magbinata sad ug
sinulti-an. In examining a child witness, the court
and the counsels must take into consideration
the developmental level in asking questions.
Pananglitan ang bata gani 3 years old, dili man
na pwede ug idiritso nimo ug ingon nga “how old
are you?” Ingnon pa na nimo “show me your
fingers. How old are you now?” But you cannot
do that to a 17 year old    that is to show
you how to consider the developmental level of a
child in asking questions.
Section 5. Guardian ad litem. -
(a) The court may appoint a guardian ad
litem for a child who is a victim of, accused
of, or a witness to a crime to promote the
best interests of the child. In making the
appointment, the court shall consider the
background of the guardian ad litem and
his familiarity with the judicial process,
social service programs, and child
development, giving preference to the
parents of the child, if qualified. The
guardian ad litem may be a member of the
Philippine Bar. A person who is a witness in
any proceeding involving the child cannot
be appointed as a guardian ad litem.
(b) The guardian ad litem:
(1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a
child participates;
(2) Shall make recommendations to the
court concerning the welfare of the child;
(3) Shall have access to all reports,
evaluations, and records necessary to
effectively advocate for the child, except
privileged communications;
(4) Shall marshal and coordinate the
delivery of resources and special services
to the child;
(5) Shall explain, in language
understandable to the child, all legal
proceedings, including police
investigations, in which the child is
involved;
(6) Shall assist the child and his family in
coping with the emotional effects of crime
and subsequent criminal or non-criminal
proceedings in which the child is involved;
(7) May remain with the child while the
child waits to testify;
(8) May interview witnesses; and
(9) May request additional examinations by
medical or mental health professionals if
there is a compelling need therefor.
(c) The guardian ad litem shall be notified
of all proceedings but shall not participate
in the trial. However, he may file motions
pursuant to sections 9, 10, 25, 26, 27 and
31(c). If the guardian ad litem is a lawyer,
he may object during trial that questions
asked of the child are not appropriate to his
developmental level.
(d) The guardian ad litem may communicate
concerns regarding the child to the court
through an officer of the court designated
for that purpose.
(e) The guardian ad litem shall not testify in
any proceeding concerning any information,
statement, or opinion received from the
child in the course of serving as a guardian
ad litem, unless the court finds it necessary
to promote the best interests of the child.
(f) The guardian ad litem shall be presumed
to have acted in good faith in compliance
with his duties described in sub-section
Guardian ad litem:
This refers to a person appointed by the
court to protect the best interest of the child.
A guardian ad litem – meaning a guardian
or person acting as guardian for the child witness
(may be a victim or accused) just for the purpose
of that case.
The guardian ad litem maybe a member
of the Philippine Bar.
A person who is a witness in any
proceeding involving the child cannot be
appointed as a guardian ad litem. Katagsa ra ni
siya. I don’t know kung gi-practice ba ning pag
appoint ug guardian ad litem when a child
witness is involved. Pero usually kung duna may
child witness involve in a case usual ana DSWD.
But that is in the Rule appointment of a guardian
ad litem.
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Function of a Guardian ad litem? (gi-
complete nalang nako ug butang diri kay gi-read
ra ni JD but laktaw2x)
(1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a child
participates;
(2) Shall make recommendations to the court
concerning the welfare of the child;
(3) Shall have access to all reports, evaluations,
and records necessary to effectively advocate for
the child, except privileged communications;
(4) Shall marshal and coordinate the delivery of
resources and special services to the child;
(5) Shall explain, in language understandable to
the child, all legal proceedings, including police
investigations, in which the child is involved;
(6) Shall assist the child and his family in coping
with the emotional effects of crime and
subsequent criminal or non-criminal proceedings
in which the child is involved;
(7) May remain with the child while the child
waits to testify;
(8) May interview witnesses; and
(9) May request additional examinations by
medical or mental health professionals if there is
a compelling need therefor.
Then the guardian ad litem shall be
notified of all proceedings but shall not
participate in the trial. However, he may file
motions. If he is a lawyer, he may object during
trial that questions asked of the child are not
appropriate to his developmental level.
The guardian ad litem shall not testify in
any proceeding concerning any information,
statement, or opinion received from the child in
the course of serving as a guardian ad litem. This
is a sort of disqualification by reason of privilege
communication.
Section 6. Competency. - Every child is
presumed qualified to be a witness.
However, the court shall conduct a
competency examination of a child, motu
proprio or on motion of a party, when it
finds that substantial doubt exists
regarding the ability of the child to
perceive, remember, communicate,
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
distinguish truth from falsehood, or
appreciate the duty to tell the truth in
court.
(a) Proof of necessity. - A party seeking a
competency examination must present
proof of necessity of competency
examination. The age of the child by itself
is not a sufficient basis for a competency
examination.
(b) Burden of proof. - To rebut the
presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence.
(c) Persons allowed at competency
examination. Only the following are allowed
to attend a competency examination:
(1) The judge and necessary court
personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the
child; and
(5) The defendant, unless the court
determines that competence can be fully
evaluated in his absence.
(d) Conduct of examination. - Examination
of a child as to his competence shall be
conducted only by the judge. Counsel for
the parties, however, can submit questions
to the judge that he may, in his discretion,
ask the child.
(e) Developmentally appropriate questions.
- The questions asked at the competency
examination shall be appropriate to the age
and developmental level of the child; shall
not be related to the issues at trial; and
shall focus on the ability of the child to
remember, communicate, distinguish
between truth and falsehood, and
appreciate the duty to testify truthfully.
(f) Continuing duty to assess competence. -
The court has the duty of continuously
assessing the competence of the child
throughout his testimony.
Competency Examination:
Now, under Sec. 6 every child is
presumed qualified to be a witness. So a child is
not disqualified just because he is a child. Every
child is presumed qualified to be a witness.
However if the court doubts the qualification of
the child of if it doubts whether the child can
qualify as a witness,…kahinumdom mo sa mga
qualifications to be a witness? The ability to
observe, remember, relate and the ability to
recognize the duty to tell the truth. So in
case of doubt or there is a necessity of
conducting an examination on the child, then the
court may conduct competency examination.
And since a child is presumed to be
qualified as a witness, he who questions the
qualification of the child must present proof of
necessity of competency examination. The age of
the child by itself is not a sufficient basis for a
competency examination.
The court as what we have said can
conduct competency examination. And the
questions of the judge should NOT be related to
the case. The judge shall be the one to ask the
questions and the questions should not be
related to the issues of the case. So unsa may
examples sa mga questions sa judge to
determine whether or not the child is competent
to testify? So the judge will have to determine if
the child can observe, can remember, can relate
and can recognize the duty to tell the truth.
For example the judge would say, “Dai,
show me your fingers. How old are you now? Pila
may idad nimo karon dai be. Pakit-a ko sa imong
kamot or sa imohang mga tudlo.” Ingon ang
bata” 2 years old” “Who is your father? Could
you give me the name of your father? What
about your mother?” and if the child…kanang
mga bata karon 3 or 4 years old mada na man na
sa skwelahan diba? Nursery diba? So ingna
dayon nga “do you know your teacher? Kinsa
may ngalan sa imong teacher be?” “Teacher
Mary”  “what’s the name of your school?” then
“what will Jesus do if you will tell a lie?” mo ingon
dayon nang bata “adto ko ilabay sa fire” 
So do you think that the child is
competent to testify? YES. He can observe, he
can remember because he or she remembers the
name of his/her teacher. He can relate because
he can give responsive answers to the questions.
And she could recognize the duty to tell the truth.
He/she is aware that when he/she tells a lie there
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is a punishment. So the child is competent to
testify. That is an example in conducting a
competency examination.
During the conduct of competency
examination, only the judge can ask question.
Pareho ra didto sa prosecutors office. Do you
remember didto sa prosecutors office? Kadtong
investigating fiscal conducting the PI he can only
ask questions.
Developmentally appropriate questions:
That’s what I have said to you earlier. In
asking questions to the child, the lawyer or the
interpreter should relate the questions to the
child taking into consideration his/her
developmental leve.
For example, mi ingon ang abogado nga
“are you sure you saw the accused stabbing the
victim?” unsaon man na nimo pag kuan. “dai,
nakakita jud ka ana niya nga mao jud nag duslak
sa kutselyo dai?” that is how you are going (to
ask). But you will not ask in that manner if the
child is already 15 years old or 16 years old. In
fact, the child at that age mas bright pa nato
usahay. But the problem is if the child is in tender
years. Kinahanglan nga imo na siyang pangutan-
on unya ang pangutana must be made in such a
way mga masabtan jud niya pag-ayo.
Section 7. Oath or affirmation. - Before
testifying, a child shall take an oath or
affirmation to tell the truth.
Section 8. Examination of a child witness. -
The examination of a child witness
presented in a hearing or any proceeding
shall be done in open court. Unless the
witness is incapacitated 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 child witness or
the guardian ad litem of such child witness
may, however, move the court to allow him
to testify in the manner provided in this
Rule.
Where should the examination of the child
be done?
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
Generally, it shall be done in open court
just like an adult. However, if the conducting
examination in open court would put the child in
difficulty in testifying then there are, in the
succeeding sections, ways that are to be taken
by the court for the child to testify.
Section 9. Interpreter for child. -
(a) When a child does not understand the
English or Filipino language or is unable to
communicate in said languages due to his
developmental level, fear, shyness,
disability, or other similar reason, an
interpreter whom the child can understand
and who understands the child may be
appointed by the court, motu proprio or
upon motion, to interpret for the child.
(b) If a witness or member of the family of
the child is the only person who can serve
as an interpreter for the child, he shall not
be disqualified and may serve as the
interpreter of the child. The interpreter,
however, who is also a witness, shall testify
ahead of the child.
(c) An interpreter shall take an oath or
affirmation to make a true and accurate
interpretation.
When a child does not understand the
English or Filipino language or is unable to
communicate in said languages due to his
developmental level, fear, shyness, disability, or
other similar reason, an interpreter whom the
child can understand and who understands the
child may be appointed by the court, motu
proprio or upon motion, to interpret for the child.
Sa kada korte, naa jud nay regular nga
court interpreter. But if the court interpreter
cannot effectively communicate with the child…
(kay kana gud pag communicate nimo sa bata
abilidad man na. Dunay ubang tao nga dili maka
communicate sa bata. Duna gani mga katabang
nga mas maka relate pa sa bata kaysa sa inahan)
so the court may appoint another interpreter just
to interpret for the child either moto proprio or
upon motion.
If a witness or member of the family of
the child is the only person who can serve as an
interpreter, he shall not be disqualified and may
serve as the interpreter of the child. So pwede ra
relative kung wala gyud lain.
An interpreter shall take an oath or
affirmation to make a true and accurate
interpretation For example there was one case
unya wala pa ning maong rule. It is just to show
to you unsaon pag interpret didto sa bata. The
child was I think 4 or 5 years old. The here comes
the lawyer cross examining the child. Ingon
dayon ang abogado, “was the organ of the
accused was able to penetrate your vigina?”
unya ang interpreter pod nga sili kamao mo
relate didto sa bata ingon siya “dai, ang organ ba
sa kaning gisumbong/ gikiha nimo nakasulod jud
didto sa imong kinatawo?” Tubag sad ang bata
“dili man to organ. Plahota man to”    Tinuod
na nga nahitabo. Rape ang kaso. Abi man sa bata
nga ang organ mao tong mo tukar. 
Section 10. Facilitator to pose questions to
child. -
(a) The court may, motu proprio or upon
motion, appoint a facilitator if it determines
that the child is unable to understand or
respond to questions asked. The facilitator
may be a child psychologist, psychiatrist,
social worker, guidance counselor, teacher,
religious leader, parent, or relative.
(b) If the court appoints a facilitator, the
respective counsels for the parties shall
pose questions to the child only through
the facilitator. The questions shall either be
in the words used by counsel or, if the child
is not likely to understand the same, in
words that are comprehensible to the child
and which convey the meaning intended by
counsel.
(c) The facilitator shall take an oath or
affirmation to pose questions to the child
according to the meaning intended by
counsel.
Another that the court may appoint is a
facilitator to post questions to the child. Kung dili
pa gyud siya makasabot pa gyud aw pwede pa
mo appoint ug facilitator.
(gi read lang ni JD ang whole Sec 10 on
toto)
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Section 11. Support persons. -
(a) A child testifying at a judicial
proceeding or making a deposition shall
have the right to be accompanied by one or
two persons of his own choosing to provide
him emotional support.
(1) Both support persons shall remain
within the view of the child during his
testimony.
(2) One of the support persons may
accompany the child to the witness stand,
provided the support person does not
completely obscure the child from the view
of the opposing party, judge, or hearing
officer.
(3) The court may allow the support person
to hold the hand of the child or take other
appropriate steps to provide emotional
support to the child in the course of the
proceedings.
(4) The court shall instruct the support
persons not to prompt, sway, or influence
the child during his testimony.
(b) If the support person chosen by the
child is also a witness, the court may
disapprove the choice if it is sufficiently
established that the attendance of the
support person during the testimony of the
child would pose a substantial risk of
influencing or affecting the content of the
testimony of the child.
(c) If the support person who is also a
witness is allowed by the court, his
testimony shall be presented ahead of the
testimony of the child.
Another, aside from facilitator who will
post questions to the child, support persons (sa
ato pa ni maoy tig-cheer sa bata). Ayaw
paghuna-huna atong bata nga 12 years old.
Huna-hunaa ang bata nga 3 years old. Mao ni
silay gitawag ug cheering squad.
A child testifying at a judicial proceeding
or making a deposition shall have the right to be
accompanied by one or two persons of his own
choosing to provide him emotional support. So
kaning support person/s pwede ni nga maoy mo
sabak2x sa bata. Pwede siya ang mo lingkod
unya ang bata iyang sabakon. Pwede ni siya
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
maoy mo lingaw2x sa bata or mo hapohap2x sa
bata. The support person could be the nanny.
Kanang “yaya” niya. Ang yaya maoy mo
diwalwal2x sa dila  mo lingaw sa iyahang mga
tudlo ug dila.
One of the support persons may
accompany the child to the witness stand,
provided the support person does not completely
obscure the child from the view of the opposing
party, judge, or hearing officer.
The court may allow the support person
to hold the hand of the child or take other
appropriate steps to provide emotional support to
the child in the course of the proceedings.
Section 12. Waiting area for child
witnesses. - The courts are encouraged to
provide a waiting area for children that is
separate from waiting areas used by other
persons. The waiting area for children
should be furnished so as to make a child
comfortable.
The courts are encourage to have waiting
area for child witnesses separate from waiting
area used by other persons. And the waiting area
for the children should be furnished so as to
make a child comfortable. Especially jud kanang
mga Family Courts gi-encourage jud na sila to
have a waiting area for child witness coz most
likely kaning mga korteha (Family Courts) maoy
sagad nga adunay child witness.
Unsa may ibutang didto sa waiting area
sa mga child nga maghulat pa sa hearing nila?
For example ang hearing magsugod man na ug
8:30 unya ang bata mo adto didto ug mga 8 ron.
Unya kanang bata dili man gyud na siya
mahimotang. So adto na didto sa waiting area
while waiting for the case to be heard or waiting
for the judge to start the session. Unya kadtong
waiting area aduna to siyay mga toys. So mga
Barbie dolls, unsa pa man…ang mga bata karon
mayo naman ug mga computers aw imo tong
installan didto ug dota    kita mo anang mga
bata? Mayo na kaayo mo dula ana lupigon pa ta.
Section 13. Courtroom environment. - To
create a more comfortable environment for
the child, the court may, in its discretion,
direct and supervise the location,
movement and deportment of all persons in
the courtroom including the parties, their
counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court
personnel. The child may be allowed to
testify from a place other than the witness
chair. The witness chair or other place from
which the child testifies may be turned to
facilitate his testimony but the opposing
party and his counsel must have a frontal
or profile view of the child during the
testimony of the child. The witness chair or
other place from which the child testifies
may also be rearranged to allow the child to
see the opposing party and his counsel, if
he chooses to look at them, without turning
his body or leaving the witness stand. The
judge need not wear his judicial robe.
Nothing in this section or any other
provision of law, except official in-court
identification provisions, shall be construed
to require a child to look at the accused.
Accommodations for the child under this
section need not be supported by a finding
of trauma to the child.
To create a more comfortable
environment for the child, the court may, in its
discretion, direct and supervise the location,
movement and deportment of all persons in the
courtroom including the parties, their counsel,
child, witnesses, support persons, guardian ad
litem, facilitator, and court personnel.
The child may be allowed to testify from
a place other than the witness chair. Now kita mo
didto adunay witness chair. Adto didto ang
witness mo tindog. Pero pwede ra nga kung ang
bata ganahan jud didto mopasabak sa judge aw
pwede ra    Kung adto mag tungtong2x didto
sa table sa judge aw pwede ra .
The judge need not wear his judicial robe.
Except in official in-court identification, a
child is not required to look at the accused.
Aduna may mga bata nga tungod sa trauma inig
kakita sa accused mura na ug nakakita ug
demonyo (devil) and bata. Nay bata nga ing-ana
tungod sa trauma labi na ug kanag gu kuanan
(tiunan) ug kutselyo or pusil. Inig ka kita sa
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nawong sa akusado mo hilak na dayon ang bata
tungod sa ka kuyaw.
So, nothing in this section or any other
provision of law, except official in-court
identification provisions, shall be construed to
require a child to look at the accused.
Accommodations for the child under this
section need not be supported by a finding of
trauma to the child.
Section 14. Testimony during appropriate
hours. - The court may order that the
testimony of the child should be taken
during a time of day when the child is well-
rested.
Kapoyan na gani ang bata kay dugay
man na mahuman ang hearing. Unya examinon
ang bata restless na kaayo kay pila raba ang
attention span anang bata? Taas na kaayo nang
30 mins. So ang bata restless na kaayo. Nag
dagan2x na. or kung katulgon na aw pakatulga
sa lang na. Unya ug mo ingon siya ng “dula sa ko
tatay2x nanay2x.” hala padulaa sa na diha
tatay2x nanay2x. 
Section 15. Recess during testimony. -
The child may be allowed reasonable
periods of relief while undergoing direct,
cross, re-direct, and re-cross examinations
as often as necessary depending on his
developmental level.
If the child needs recess then recess.
Section 16. Testimonial aids. - The court
shall permit a child to use dolls,
anatomically-correct dolls, puppets,
drawings, mannequins, or any other
appropriate demonstrative device to assist
him in his testimony.
So for example, rape. Pwede nimo
hatagan ug dolls ang bata. Ingnon nimo nga “Dai,
pananglitan ikaw ning doll dai, asa man bahin ani
nga gihakap2x aning gikiha?” unya iya dayon
tong tudloon.
Section 17. Emotional security item. - While
testifying, a child shall be allowed to have
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
an item of his own choosing such as a
blanket, toy, or doll.
So kung ganahan ang bata nga mag
habol didto aw pwede. Unya ug naa siyay
favorite nga toy kadtong iyang baby armalite nga
hinatag pag pasko sa iyang ninong aw pwede sad
to niyang dalhon didto iyang e-tion2x sa akosado.
 doll- unsa nang mga duwaan niya…mga
batman, spiderman or play station pwede na niya
dalhon didto.
Section 18. Approaching the witness. - The
court may prohibit a counsel from
approaching a child if it appears that the
child is fearful of or intimidated by the
counsel.
Section 19. Mode of questioning. - The
court shall exercise control over the
questioning of children so as to (1)
facilitate the ascertainment of the truth, (2)
ensure that questions are stated in a form
appropriate to the developmental level of
the child, (3) protect children from
harassment or undue embarrassment, and
(4) avoid waste of time.
The court may allow the child witness to
testify in a narrative form.
Look at Section 19 the mode of
questioning. The court shall exercise control over
the questioning of children so as to:
1. facilitate the ascertainment of the truth,
2. ensure that questions are stated in a
form appropriate to the developmental
level of the child,
3. protect children from harassment or
undue embarrassment, and
4. avoid waste of time
And the court may allow the child witness
to testify in a narrative form. Under ordinary
circumstances, a witness is not allowed to
narrate. Dili na pwede nga ingnon nimo nga “ok,
mr. witness what do you know about the case?”
Dili na pwede coz it calls for a narration. Pero ang
bata pwede.
Section 20. Leading questions. - The court
may allow leading questions in all stages of
examination of a child if the same will
further the interests of justice.
Pwede na nimo e-ask ug leading
questions.
Section 21. Objections to questions. -
Objections to questions should be couched
in a manner so as not to mislead, confuse,
frighten, or intimidate the child.
Section 22. Corroboration. - Corroboration
shall not be required of a testimony of a
child. His testimony, if credible by itself,
shall be sufficient to support a finding of
fact, conclusion, or judgment subject to the
standard of proof required in criminal and
non-criminal cases.
The testimony of the child if reliable or
credible would be sufficient to convict the
accused and it does not require corroboration.
Section 23. Excluding the public. - When a
child testifies, the court may order the
exclusion from the courtroom of all
persons, including members of the press,
who do not have a direct interest in the
case. Such an order may be made to protect
the right to privacy of the child or if the
court determines on the record that
requiring the child to testify in open court
would cause psychological harm to him,
hinder the ascertainment of truth, or result
in his inability to effectively communicate
due to embarrassment, fear, or timidity. In
making its order, the court shall consider
the developmental level of the child, the
nature of the crime, the nature of his
testimony regarding the crime, his
relationship to the accused and to persons
attending the trial, his desires, and the
interests of his parents or legal guardian.
The court may, motu proprio, exclude the
public from the courtroom if the evidence
to be produced during trial is of such
character as to be offensive to decency or
public morals. The court may also, on
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motion of the accused, exclude the public
from trial, except court personnel and the
counsel of the parties.
The public may be excluded from the trial
or from the court room if there is such a need to
protect the right to privacy of the child.
Especially kung child victim or accused
unya minor aw excluded jud ang public ana. Or
kung ang bata ordinary witness lang pero dili
unya dili siya ka testigos or ka sulti ug if daghang
tao. Kita man gani mga dagko dili man gani
usahay ta makasulti kung daghang tao ang maga
tan-aw nato gawas lang kung anad na ka. Ang
uban gani maghubog pa man gani…mag adisx pa
man gani aron siya maka storya unsa pa ba kaha
nang bata.
So if the presence of the public will
render the ascertainment of truth or cause
psychological harm to the child or would result to
ineffectively communicate then the public would
be excluded.
The court may also motu proprio exclude
the public from the courtroom if the evidence to
be produced during trial is of such character as to
be offensive to decency or public morals.
Section 24. Persons prohibited from
entering and leaving courtroom. - The court
may order that persons attending the trial
shall not enter or leave the courtroom
during the testimony of the child.
So pwede mopapahawa ang court. Pwede
sad mo pa stay ang court ug tao.
For example, ang katabang/ “yaya” iya
nang gidala ang bata didto sa witness stand.
Unya kay mo gawas na unta siya kay mo lingkod
na pero mo hilak man ang bata. Pwede ra to
siyang pa stay-hon sa court. Unya mi duol ang
mama. Oi! Dili man nuon ganahan ang bata sa
mama. 
(THIS IS VERY IMPORTANT!)
Section 25. Live-link television testimony in
criminal cases where the child is a victim or
a witness. –
(a) The prosecutor, counsel or the guardian
ad litem may apply for an order that the
testimony of the child be taken in a room
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
outside the courtroom and be televised to
the courtroom by live-link television.
Before the guardian ad litem applies for an
order under this section, he shall consult
the prosecutor or counsel and shall defer to
the judgment of the prosecutor or counsel
regarding the necessity of applying for an
order. In case the guardian ad ltiem is
convinced that the decision of the
prosecutor or counsel not to apply will
cause the child serious emotional trauma,
he himself may apply for the order.
The person seeking such an order shall
apply at least five (5) days before the trial
date, unless the court finds on the record
that the need for such an order was not
reasonably foreseeable.
(b) The court may motu proprio hear and
determine, with notice to the parties, the
need for taking the testimony of the child
through live-link television.
(c) The judge may question the child in
chambers, or in some comfortable place
other than the courtroom, in the presence
of the support person, guardian ad litem,
prosecutor, and counsel for the parties. The
questions of the judge shall not be related
to the issues at trial but to the feelings of
the child about testifying in the courtroom.
(d) The judge may exclude any person,
including the accused, whose presence or
conduct causes fear to the child.
(e) The court shall issue an order granting
or denying the use of live-link television
and stating the reasons therefor. It shall
consider the following factors:
(1) The age and level of development of the
child;
(2) His physical and mental health,
including any mental or physical disability;
(3) Any physical, emotional, or
psychological injury experienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or
adverse party;
(7) His reaction to any prior encounters
with the accused in court or elsewhere;
(8) His reaction prior to trial when the topic
of testifying was discussed with him by
parents or professionals;
(9) Specific symptoms of stress exhibited
by the child in the days prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and
the attitude of the members of his family
regarding the events about which he will
testify; and
(12) Other relevant factors, such as court
atmosphere and formalities of court
procedure.
(f) The court may order that the testimony
of the child be taken by live-link television
if there is a substantial likelihood that the
child would suffer trauma from testifying in
the presence of the accused, his counsel or
the prosecutor as the case may be. The
trauma must be of a kind which would
impair the completeness or truthfulness of
the testimony of the child.
(g) If the court orders the taking of
testimony by live-link television:
(1) The child shall testify in a room
separate from the courtroom in the
presence of the guardian ad litem; one or
both of his support persons; the facilitator
and interpreter, if any; a court officer
appointed by the court; persons necessary
to operate the closed-circuit television
equipment; and other persons whose
presence are determined by the court to be
necessary to the welfare and well-being of
the child;
(2) The judge, prosecutor, accused, and
counsel for the parties shall be in the
courtroom. The testimony of the child shall
be transmitted by live-link television into
the courtroom for viewing and hearing by
the judge, prosecutor, counsel for the
parties, accused, victim, and the public
unless excluded.
(3) If it is necessary for the child to identify
the accused at trial, the court may allow
the child to enter the courtroom for the
limited purpose of identifying the accused,
or the court may allow the child to identify
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the accused by observing the image of the
latter on a television monitor.
(4) The court may set other conditions and
limitations on the taking of the testimony
that it finds just and appropriate, taking
into consideration the best interests of the
child.
(h) The testimony of the child shall be
preserved on videotape, digital disc, or
other similar devices which shall be made
part of the court record and shall be subject
to a protective order as provided in section
31(b).
This is very important. This is about Live-
link television testimony. When there is difficulty
in getting the testimony of the child in open
court, the testimony maybe taken by live-link
television.
Unsa man nang live-link? For example
mao ni siyay court room (room 301) unya adidto
sa opisina sa dean mao to siyay chamber sa
court or waiting area, pwede ra nga dia ra diri
maghearing ang judge unya ang bata tua ra
didto. Unya nay tv diri nga maoy mo transmit.
Tua didtoy camera. Magtan-aw diri ang mga
parties unya tua didto ang bata aron ang bata dili
makakita sa mga tao. Ang iyang Makita camera
ra ug kadtong microphone. Unya tuay speaker
didto so madunggan niya ang judge ug counsels.
Pero ang korte nga anaay ing-ani ako rang
nahibaw-an kanang Branch 22. Donated by the
United Nations. Mahal man ni siya tingali mga
100,000.
But dili na buot pasabot nga basta dunay
bata mag live-link television dayon. Kanus-a ra
man ni siya gamiton? This shall be used if there
is difficulty in getting answers from the child or
when testifying in the open court will cause
trauma to the child.
This can be done moto proprio or upon
motion by the prosecution or even by the
guardian ad litem.
If there is such a motion, the court may
deny or grant the motion of using the live-link
taking into the following factors:
 The age and level of development of the
child;
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
 His physical and mental health, including
any mental or physical disability;
 Any physical, emotional, or psychological
injury experienced by him;
 The nature of the alleged abuse;
 Any threats against the child;
 His relationship with the accused or
adverse party;
 His reaction to any prior encounters with
the accused in court or elsewhere;
 His reaction prior to trial when the topic
of testifying was discussed with him by
parents or professionals;
 Specific symptoms of stress exhibited by
the child in the days prior to testifying;
 Testimony of expert or lay witnesses;
 The custodial situation of the child and
the attitude of the members of his family
regarding the events about which he will
testify; and
 Other relevant factors, such as court
atmosphere and formalities of court
procedure.
The court may order that the testimony
of the child be taken by live-link television if
there is a substantial likelihood that the child
would suffer trauma from testifying in the
presence of the accused, his counsel or the
prosecutor as the case may be. The trauma must
be of a kind which would impair the
completeness or truthfulness of the testimony of
the child.
So live-link television, repeat! Dili jud ni
siya automatic nga kun dunay bata nga witness
mag live-link dayon. Dili! This can only be
resorted to if there is substantial likelihood that
the child would suffer trauma. Meaning, this will
only be resorted to only if there is difficulty of
getting testimony from the child.
Unya onsaon man na pag identify sa
accused? Look at number three (3). If it is
necessary for the child to identify the accused at
trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying
the accused, or the court may allow the child to
identify the accused by observing the image of
the latter on a television monitor. So, pwede ang
bata didto nay tv. Dunay tv didto unya duna pod
tv diri so that makakita siya kung kinsay mga tao
diri sa court room. So nay tv/monitor didto unya
naa pod tv monitor diri so that ang korte or ang
prosecutor will ask the child to identify the
accused…”dai, ingon man ka nga gihilabtan ka ni
Juan Dela Cruz. Tan-awa kuno dai. Asa man ni si
Juan Dela Cruz. Itudlo kuno. Isulti kuno unsay
iyahang hitsura. Unsay iyang gisul-ot.” Unya
ingon dayon ang bata “kana siyang nag sul-ot ug
t-shirt nga puti. Unya kanang dunay ila diri sa
iyahang nawong. That is how the child would
identify the accused.
Section 26. Screens, one-way mirrors, and
other devices to shield child from accused. -
(a) The prosecutor or the guardian ad litem
may apply for an order that the chair of the
child or that a screen or other device be
placed in the courtroom in such a manner
that the child cannot see the accused while
testifying. Before the guardian ad litem
applies for an order under this section, he
shall consult with the prosecutor or counsel
subject to the second and third paragraphs
of section 25(a) of this Rule. The court shall
issue an order stating the reasons and
describing the approved courtroom
arrangement.
(b) If the court grants an application to
shield the child from the accused while
testifying in the courtroom, the courtroom
shall be arranged to enable the accused to
view the child.
Aside from live-link, another option is to
have screens or one way mirror or other devices
to shield child from accused. One way mirror –
ang accused makakita sa bata pero ang bata dili
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makakita sa accused. Pareho ba anang inyong
windshield sa sakyanan. Kamo makakita sa
gawas pero ang ubang tao sa gawas dili
makakita ninyo.
Ngano man na? nganong e-one way
(mirror) man? Kay ang bata dili ganahan
makakita sa nawong sa accused kay na trauma
siya.
Section 27. Videotaped deposition. -
(a) The prosecutor, counsel, or guardian ad
litem may apply for an order that a
deposition be taken of the testimony of the
child and that it be recorded and preserved
on videotape. Before the guardian ad litem
applies for an order under this section, he
shall consult with the prosecutor or counsel
subject to the second and third paragraphs
of section 25(a).
(b) If the court finds that the child will not
be able to testify in open court at trial, it
shall issue an order that the deposition of
the child be taken and preserved by
videotape.
(c) The judge shall preside at the
videotaped deposition of a child. Objections
to deposition testimony or evidence, or
parts thereof, and the grounds for the
objection shall be stated and shall be ruled
upon at the time of the taking of the
deposition. The other persons who may be
permitted to be present at the proceeding
are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is
determined by the court to be necessary to
the welfare and well-being of the child;
(6) One or both of his support persons, the
facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the
videotape equipment.
(d) The rights of the accused during trial,
especially the right to counsel and to
REMEDIAL LAW REVIEW 2012 TRANSCRIPTION
confront and cross-examine the child, shall
not be violated during the deposition.
(e) If the order of the court is based on
evidence that the child is unable to testify
in the physical presence of the accused, the
court may direct the latter to be excluded
from the room in which the deposition is
conducted. In case of exclusion of the
accused, the court shall order that the
testimony of the child be taken by live-link
television in accordance with section 25 of
this Rule. If the accused is excluded from
the deposition, it is not necessary that the
child be able to view an image of the
accused.
(f) The videotaped deposition shall be
preserved and stenographically recorded.
The videotape and the stenographic notes
shall be transmitted to the clerk of the
court where the case is pending for
safekeeping and shall be made a part of the
record.
(g) The court may set other conditions on
the taking of the deposition that it finds
just and appropriate, taking into
consideration the best interests of the
child, the constitutional rights of the
accused, and other relevant factors.
(h) The videotaped deposition and
stenographic notes shall be subject to a
protective order as provided in section
31(b).
(i) If, at the time of trial, the court finds
that the child is unable to testify for a
reason stated in section 25(f) of this Rule,
or is unavailable for any reason described
in section 4(c), Rule 23 of the 1997 Rules of
Civil Procedure, the court may admit into
evidence the videotaped deposition of the
child in lieu of his testimony at the trial.
The court shall issue an order stating the
reasons therefor.
(j) After the original videotaping but before
or during trial, any party may file any
motion for additional videotaping on the
ground of newly discovered evidence. The
court may order an additional videotaped
deposition to receive the newly discovered
evidence.
Then another is through videotaped
deposition. You are familiar with deposition diba?
The prosecutor, counsel, or guardian ad
litem may apply for an order that a deposition be
taken of the testimony of the child and that it be
recorded and preserved on videotape. Kanus-a
man ni siya e-resort? Because usually general
rule, a child has to appear in court. Dili na pwede
ang deposition especially if it is a criminal case.
This will be resorted to if the court finds
that the child will not be able to testify in open
court at trial. The court shall issue an order that
the deposition of the child be taken and
preserved by videotape.
The judge shall preside at the videotaped
deposition of a child. Lahi nuon ni siya sa
kadtong deposition jud sa civil procedure kay
kadtong deposition sa civil procedure pwede ra to
siya sa motary public or any person authorized to
take an oath. Pero diri, requirement jud nga ang
judge jud ang mo preside sa videotaped
deposition. Ngano man? Pupareho ra ni siya
adtong conditional examination sa Rule 119 of
the criminal procedure. Nganu man gyud nga gi
require man jud nga ang judge? So that the judge
can observe the demeanor of the child. In taking
the deposition, the accused shall be given all of
his rights.
Objections to deposition testimony or
evidence, or parts thereof, and the grounds for
the objection shall be stated and shall be ruled
upon at the time of the taking of the deposition.
Now, look at letter d. The rights of the
accused during trial, especially the right to
counsel and to confront and cross-examine the
child, shall not be violated during the deposition.
Meaning he can still cross examine the child
during the deposition.
Unya unsay tuyo aning deposition? This
is in the event when the child cannot testify in
court. So the videotaped deposition shall be used
in lieu of the open court testimony of the child. If
the order of the court is based on evidence that
the child is unable to testify in the physical
presence of the accused, the court may direct
the latter to be excluded from the room in which
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the deposition is conducted. In case of exclusion

of the accused, the court shall order that the
testimony of the child be taken by live-link
television. Sa deposition ni.
By the way going back to the live-link
television, the legal experts questions the
particular provision because according to them
that would be a violation for the right of the
accused to face his accuser or to confront the
witnesses face to face. Mao nay ilahang
objection. Pero ang problema ka yang SC man
maoy nag issue niining maong rule. Asa man ka
mo question the issues regarding/involving
constitutionality. SC na gud na. pero wala man
sad ni question ani.
The videotaped deposition shall be
preserved and stenographically recorded. The
videotape and the stenographic notes shall be
transmitted to the clerk of the court where the
case is pending.
February 4, 2013 3rd part

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