2018

REMEDIAL LAW
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1. GENERAL PRINCIPLES OF 2. Criminal - A criminal action is one by which

REMEDIAL LAW the State prosecutes a person for an act or
omission punishable by law
3. Special proceedings - remedy by which a
1.A. CONCEPT OF REMEDIAL LAW party seeks to establish a status, a right, or
a particular fact (Sec. 3, Rule 1).
Definition
Procedural rule
Remedial Law refers to legislation providing
means or methods whereby causes of action Procedural rule is the judicial process for
may be effectuated, wrongs redressed, and enforcing rights and duties recognized by
relief obtained. These statutes pertain to or substantive law and for justly administering
affect a remedy as distinguished from those remedy and redress for their disregard or
which affect or modify a substantive rights or infraction. It is not procedural rule if it takes
duty. (Herrera, Remedial Law Vol. I, pg.1, 2007 away vested right.
ed.)
1.B. SUBSTANTIVE LAW VIS-A-VIS
Importance
REMEDIAL LAW
Administration of justice. It lies at the very core
of procedural due process, which means a law SUBSTANTIVE LAW REMEDIAL LAW
which hears before it condemns, which Creates, defines and Provides for the manner
proceeds upon inquiry and renders judgment regulates rights by which said right may
only after trial, and contemplates an be enforced, protected or
opportunity to be heard before judgment is redressed.
Grants vested rights Creates no vested rights
rendered
(merely a vehicle to
implement an existing
In general, procedural laws are applied right).
retrospectively because there are no vested
Generally prospective May be Retroactive in
rights in the rules of procedure, except:
in application application
Cannot be granted by Supreme Court is
1. where the statute itself or by necessary the Supreme Court. expressly empowered to
implication provides that pending actions are promulgate procedural
excepted from its operation; rules. (Art. VIII, Sec. 5
2. if applying the rule to pending proceedings [5])
would impair vested rights
3. when to do so would not be feasible or
Note: Rules of procedure are remedial in
would work injustice
nature and not substantive. They cover only
4. if doing so would involve intricate problems
rules on pleading and practice.
of due process or impair the independence
of the courts
1.C. RULE-MAKING POWER OF THE
Scope of Rules of Court SUPREME COURT

1. Civil - one by which a party sues another for
the enforcement or protection of a right, or
the prevention or redress of a wrong. It
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.
The Supreme Court has the constitutional
power to promulgate rules concerning pleading,
practice and procedure. (Sec. 5[5], Art. VIII,
Constitution of the Philippines).
The 1987 Constitution took away the power of
Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.

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ARELLANO UNIVERSITY SCHOOL OF LAW
In fine, the power to promulgate rules of
pleading, practice and procedure is no longer
shared by the Court with Congress, more so
with the Executive. If the manifest intent of the
1987 Constitution is to strengthen the
independence of the judiciary, it is inutile to
urge that the Court has no jurisdiction to
control the process of execution of its
decisions, a power conceded to it and which it
has exercised since time immemorial.
1.C.1. Limitations on the Rule-
Making Power of the Supreme
Court
a) The rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
b) The rules shall be uniform for courts of the
same grade; and
c) The rules shall not diminish, increase, or
modify substantive rights. (Sec. 5[5], Art. VIII,
Constitution of the Philippines).
1.C.2. Power of the Supreme Court to
Amend and Suspend Procedural Rules
Power to Amend Rules
The constitutional power of the Supreme Court
to promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the Rules of Court
(Pinga vs. Heirs of Santiago, G.R. No. 170354, June
30, 2006).
Power to Suspend Procedural Rules
The courts have the power to relax or suspend
technical or procedural rules or to except a
case from their operation when compelling
reasons so warrant or when the purpose of
justice requires it.
1) There are, indeed, reasons which would
warrant the suspension of the Rules, to
wit:
a) the existence of special or compelling
circumstances;
2 CENTER FOR LEGAL EDUCATION AND RESEARCH
b) the merits of the case;
c) a cause not entirely attributable to the
fault or negligence of the party favored
by the suspension of rules;
d) a lack of any showing that the review
sought is merely frivolous and
dilatory; and
e) the other party will not be unjustly
prejudiced thereby (Sarmiento vs.
Zaratan, G.R. No. 167471, February 5,
2007).
Technical rules may be suspended whenever
the purposes of justice warrant it, such as were
substantial and important issues await
resolution because the courts have that power
to relax or suspend technical or procedural
rules or to except a case from their operation
when compelling reasons so warrant or when
the purpose of justice requires it. What
constitutes good and sufficient cause that
would merit suspension of the rules is
discretionary upon the courts (CIR vs. Mirant
Pagbilao Corp., G.R. No. 159593, October 12, 2006).
Compliance with the procedural rules is the
general rule, and abandonment thereof should
only be done in the most exceptional
circumstances.‖ (Pilapil vs. Heirs of Briones, G.R.
No. 150175, February 5, 2007)
1.D. NATURE OF PHILIPPINE
COURT
1.D.1. Meaning of a Court
A court is an organ of government belonging to
the judicial department the function of which is
the application of the laws to controversies
brought before it as well as the public
administration of justice (Black‘s, 5th Edition, 356).
1.D.1.A Court as distinguished from a
Judge
COURT JUDGE
A tribunal officially An officer of such
assembled under tribunal.
authority of law.
It is being imagination A physical person
comparable to a
corporation.
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COURT JUDGE 1.D.2.B. Courts of General Jurisdiction vs

An office A public officer Special jurisdiction
The court remains as The judge may resign,
such regardless of what become incapacitated Court of General Court of Limited
might happen to the or disqualified to hold
Jurisdiction or Special
judge. office
Jurisdiction
One which has the power Restricts the court‘s
1.D.2. Classification of Philippine Courts to adjudicate all jurisdiction only to
controversies which may particular cases and
1.D.2.A. Courts of Original Jurisdiction vs be brought before it subject to such
Court of Appellate jurisdiction within the legal bounds limitations as may be
of rights and remedies provided by the
Court of Original Court of Appellate except those expressly governing law.
Jurisdiction Jurisdiction withheld from its plenary (Regalado, Remedial
One which has the One which has the powers. Law Compendium, Vol.
power to take judicial authority to review the 1, 10th Ed.)
cognizance of a case final order or judgment
instituted for judicial of a lower court with the Note: A court may also be considered ‗general‘
action for the first time power to modify, if it has the competence to exercise jurisdiction
under conditions reverse, sustain, affirm over cases not falling within the jurisdiction of
provided by law (in the or remand the same. any court, tribunal, person or body exercising
first instance). judicial or quasi-judicial functions (Sec.19[6],
Sec. 20, BP 129, Judiciary Reorganization Act of
Note: Metropolitan Trial Courts, Municipal 1980). It is in this context that the Regional
Circuit Trial Courts and Municipal Trial Courts Trial Court is considered a court of general
are courts of original jurisdiction. These courts jurisdiction. (Riano, Civil Procedure, pg. 41, 2009
have no appellate jurisdiction. The Regional ed.)
Trial Court is likewise a court of original
jurisdiction with respect to cases originally filed Example of Courts of Limited Jurisdiction:
with it.
a) Family Courts (RA 8369)
The RTC is also a court of appellate jurisdiction b) Special Commercial Courts (SC Admin Matter
with respect to cases decided by the Municipal 03-03-03)
Trial Courts within its territorial jurisdiction (Sec.
22, BP 129). The Court of Appeals is primarily a 1.D.2.C. Constitutional Court vs Statutory
court of appellate jurisdiction with competence Court
to review judgments of the Regional Trial
Courts and specified quasi-judicial agencies Constitutional Court Statutory Court
(Sec. 9[3], BP 129). One which owes its Created, organized and
creation and existence to with jurisdiction
The Supreme Court is also fundamentally a the Constitution. exclusively determined
court of appellate jurisdiction but it may also be (Supreme Court) by law.
a court of original jurisdiction over cases
All other courts in the
affecting ambassadors, public ministers and
Philippines, except SC,
consuls, and in cases involving petitions for are statutory courts.
certiorari, prohibition and mandamus (Sec.5[1],
Art.VIII, Constitution of the Philippines). But the Constitutionally–Mandated Court – its existence
Supreme Court en banc is not an appellate is provided for in the Constitution but its
court to which decisions or resolutions of a creation is by statutory enactment.
division of the Supreme Court may be appealed (Sandiganbayan)
(Riano, Civil Procedure, pgs. 41-43, 2009 ed.
1.D.2.D. Courts of Law vs Court of Equity

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ARELLANO UNIVERSITY SCHOOL OF LAW
Court of Law Court of Equity
Decides a case according Adjudicates a August 31, 2006).
to what the promulgated controversy according
law is to the common
precepts of what is
right and just without
inquiring into the
terms of the statutes.
Note: Our courts are both courts of law and
equity, they are not powerless to determine a
factual matter in accordance with both
standards. (FF Manacop vs. CA, G.R. No. 122196
January 15, 1997)
1.D.3. Principle of Judicial Hierarchy
The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered
by a higher court. Specifically, under a judicial
policy recognizing the hierarchy of courts, a
higher court will not entertain direct resort to it
unless the redress cannot be obtained in the
appropriate courts (Santiago vs. Vasquez, 217
SCRA 167).
 Thus, while it is true that the issuance of a
Writ of Prohibition under Rule 65 of the
Rules of Court is within the jurisdiction of
the Supreme Court, a petitioner cannot
seek relief from the Supreme Court where
the issuance of such writ is also within the
competence of the Regional Trial Court or
the Court of Appeals. The Supreme Court is
a court of last resort. It cannot and should
not be burdened with the task of deciding
cases in the first instance. Its jurisdiction to
issue extraordinary writs should be
exercised only where absolutely necessary
or where serious and important reasons
exist (Purok Bagong Silangan vs. Yuipco, G.R.
No. 135092, May 4, 2006).
 This concurrence of jurisdiction among the
Supreme Court, Court of Appeals and
Regional Trial Courts in certain cases
should not be construed as giving to
parties unrestrained freedom of choice of
the court to which application therefore will
be directed. There is a principle of
4 CENTER FOR LEGAL EDUCATION AND RESEARCH
hierarchy of courts to be followed. (Quesada
vs. Department of Justice, G.R. No. 150325,
When the doctrine of hierarchy of courts
may be disregarded
 When there are special and important
reasons therefore, clearly and specifically
set out in the petition (Lim vs. Vianzon, G.R.
No. 137187, August 3, 2006) such as cases of
national interest and of serious
implications, justify the availment of the
extraordinary remedy of writ of certiorari,
prohibition, or mandamus calling for the
exercise of its primary jurisdiction
(Springfield Development Corporation vs. RTC of
Misamis Oriental, G.R. No. 142628, February 6,
2007).
1.D.4. Doctrine of Non-Interference or
Doctrine of Judicial Stability
This principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
each other‘s orders (Lapu-lapu Development and
Housing Corporation vs. Group Management
Corporation, 388 SCRA 493). This principle also
bars a court from reviewing or interfering with
the judgment of a co-equal court over which it
has no appellate jurisdiction or power of review
(Villamor vs. Salas, 203 SCRA 540).
 Hence, a Regional Trial Court has no power
or authority to nullify or enjoin the
enforcement of a writ of possession issued
by another Regional Trial Court (Suico
Industrial Corporation vs. CA, 301 SCRA 212).
 The doctrine of non-interference applies
with equal force to administrative bodies.
When the law provides for an appeal from
the decision of an administrative body to
the Supreme Court or Court of Appeals, it
means that such body is co-equal with the
Regional Trial Court in terms of rank and
statute, and logically beyond the control of
the latter (Philippines Sinter Corporation vs.
Cagayan Electric Power and Light Co., Inc., 381
SCRA 582).

General Rule: Doctrine of Non-Interference or
Doctrine of Judicial Stability must be observed.
Exception: This principle does not apply
where a third party claimant is involved, who
may vindicate his claim. (Manliguez v. CA, G.R.
No. 92598, May 20, 1994).
2. GENERAL PRINCIPLES ON
JURISDICTION
Jurisdiction
Jurisdiction is the power and authority of a
court to hear, try and decide a case and to
carry its judgment into effect.
 Jurisdiction is determined by the allegation
of the parties in the complaint, not in the
answer. (Padlan vs Dinglasan, G.R. No.
180321; March 20, 2013)
Judicial Power
It is the duty of the courts of justice to settle
actual controversies involving rights which are
legally demandable and enforceable, and to
determine whether or not there has been grave
abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of the government (Sec.1, Article
VIII, 1987 Constitution)
Aspects of jurisdiction
1. jurisdiction over the subject matter
2. jurisdiction over the parties
3. jurisdiction over the issues of the case
4. Jurisdiction over the res or property in
litigation.
Classification of jurisdiction:
a. As to Cases Tried
1. General Jurisdiction – Power to
adjudicate all controversies except those
expressly withheld from the plenary
powers of the court.
2. Limited Jurisdiction – Power of the
court is limited to particular cases, as
may be provided by the governing law.
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3. Delegated Jurisdiction – The grant of
authority upon a lower court (MTC) to
hear or determine a case not originally
under its jurisdiction. The Supreme Court
may assign an MTC to hear and
determine cadastral or land registration
cases covering lots where there is no
controversy or opposition, or in case of
contested lots where the value of which
does not exceed P100,000. On this
special case, appeal is to the Court of
Appeals and not to the RTC.
4. Special Jurisdiction – The Jurisdiction
of the MTC to take cognizance of
petitions for (i) Bail and (ii) Habeas
Corpus in cases of the absence of RTC
judges.
Note: Not in the absence of Regional
Trial Courts, but only of the judges
therein.
b. As to Nature of Cause
1. Original Jurisdiction – Power of the
court to take judicial cognizance of a
case instituted for judicial action for the
first time under conditions provided by
law.
2. Appellate Jurisdiction – Authority of a
court higher in rank to re-examine the
final order or judgment of a lower court
which tried the case now elevated for
judicial review.
c. As to Nature and Extent of Exercise
1. Exclusive Jurisdiction – Power to
adjudicate a case or proceeding to the
exclusion of all other courts at that
stage.
2. Concurrent Jurisdiction – Power
conferred upon 2 or more courts of
different levels, to exercise original
jurisdiction over particular case or
subject matter.
Note: Concurrent jurisdiction applies
only to original and not appellate. In
appeals, there is only one court that has
jurisdiction.
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ARELLANO UNIVERSITY SCHOOL OF LAW
d. As to Situs
1. Territorial Jurisdiction – Exercised
within the geographical limits of the
place where the court is located.
2. Extra-Territorial Jurisdiction – 4. The
Exercised beyond the confines of the
territory where the court is located.
2.A. JURISDICTION OF COURTS
2.A.1. Supreme Court
Exclusive original
Petitions for the issuance of writs of certiorari,
prohibition and mandamus, Quo warranto, and
Habeas Corpus (CPMQH) against the following:
a) Court of Appeals;
b) Commission on Elections;
c) Commission on Audit;
d) Sandiganbayan;
e) Court of Tax Appeals en banc
Appellate
A. Appeal by Notice of Appeal
From the RTC or the Sandiganbayan in all
criminal cases in which the penalty imposed is
reclusion perpetua or higher, and those
involving other offenses which, although not so
punished, arose out of the same occurrence or
which may have been committed by the
accused on the same occasion, as that giving
rise to the more serious offense, regardless of
whether the accused are charged as principals,
accomplices or accessories, or whether they
have been tried jointly or separately. The SC
generally reviews only questions of law are
decided by the court a quo.
General Rule: When supported by substantial
evidence, the findings of fact of the CA are
conclusive and binding on the parties and are
not reviewable by the SC.
Exceptions: Questions of fact are decided
only on the following instances:
6 CENTER FOR LEGAL EDUCATION AND RESEARCH
1. The conclusion is grounded on
speculations, surmises or conjectures.
2. The inference is manifestly mistaken,
absurd or impossible.
3. There is grave abuse of discretion.
judgment is based on a
misapprehension of facts.
5. The findings of fact are conflicting.
6. There is no citation of specific evidence on
which the factual findings are based.
7. The findings of absence of facts are
contradicted by the presence of evidence
on record.
8. The findings of the Court of Appeals are
contrary to those of the trial court;
9. The Court of Appeals manifestly overlooked
certain relevant and undisputed facts that,
if properly considered, would justify a
different conclusion.
10. The findings of the Court of Appeals are
beyond the issues of the case; and
11. Such findings are contrary to the
admissions of both parties. (Reyes vs.
Montemayor, 598 SCRA 61; Bicol Agro-Industrial
Producers Cooperative, Inc. (BAPCI) vs. Obias,
603 SCRA 173; Heirs of Domingo Hernandez, Sr.
vs. Mingoa, Sr., 608 SCRA 394)
B. Appeal by Petition for Review on
Certiorari
1. Appeals from the CA (Rule 45).
2. Appeals from the Sandiganbayan on
pure questions of law. In cases where
the penalty imposed is reclusion
perpetua, life imprisonment or death,
questions of fact may likewise be
entertained.
3. Appeals from the RTC exercising
original jurisdiction in the following
cases:
4. If no question of fact is involved and
the case involves:
a) Constitutionality or validity of any
treaty, international or executive
agreement, law, presidential
decree, proclamation, order,
instruction, ordinance, or
regulation is in question.

b) Legality of any tax, impost,
assessment, or toll, or any penalty
imposed in relation thereto.
c) Jurisdiction of lower court is in
issue.
Note: If, in addition to abovementioned cases,
questions of fact and law are involved, the
aggrieved party shall appeal to the CA which
final judgment may be reviewed, reversed,
modified or affirmed by the SC on writ of
certiorari.
d) All cases in which only errors or questions
of law are involved.
Questions or errors of law only as decided or
committed by the lower courts.
Even questions of facts can be raised on appeal
in Writ of Amparo, Writ of Habeas Data, and
Writ of Kalikasan.
Concurrent Jurisdiction
SC with the Court of Appeals (CA)
Petitions for certiorari, prohibition and
mandamus against the following:
1) RTC
2) National Labor Relations Commission;
3) Civil Service Commission; and
4) other Quasi-Judicial Agencies.
SC with the Sandiganbayan (SB)
Petitions for mandamus, prohibition, certiorari,
habeas corpus, injunction, 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
E.O. Nos. 1, 2, 14 and 14-A, issued in 1986
(Sequestration of ill-gotten wealth by Pres. Marcos,
his Family and friends)
SC with the SB, CA and RTC
Petition for writ of amparo and petition for writ
of habeas data.
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SC with the CA and RTC
1) Petitions for habeas corpus and quo
warranto
2) Petitions for writs of certiorari, prohibition
and mandamus against lower courts or
bodies;
3) Petition for writ of amparo
4) Petition for writ of habeas data
5) Petition for writ of kalikasan
SC with the RTC
Action affecting ambassador, other public
ministers and consuls.
2.A.2. Court of Appeals and Court of Tax
Appeals
Court of Appeals
Exclusive original
Actions for annulment of judgments of the RTC
on the grounds of extrinsic fraud and lack of
jurisdiction (Rule 47)
Appellate
Appeal by Notice of Appeal or record on
appeal (ordinary appeal)
1) Appeals from the judgments of the RTC in
the exercise of its original jurisdiction,
except in all cases where only questions of
law are involved, which are appealable to
the SC by petition for review on certiorari
under Rule 45 (See Supreme Court, II-C[3a-
b] above)
2) Appeals from the RTC on constitutional, tax
and jurisdictional questions which involve
questions of fact.
3) Appeal from decisions and final orders of
the Family Courts. (R.A. 8369)
Appeal by Petition for Review
An appeal may be taken to the CA whether it
involves questions of fact, mixed questions of
fact and law, or questions of law, in the
following cases:
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ARELLANO UNIVERSITY SCHOOL OF LAW
Regular (Rule 42)
Appeals in cases decided by the RTC in the
exercise of its appellate jurisdiction
Special (Rule 43)
Appeals from the CSC, Awards, judgments,
final orders or resolutions of or authorized by
quasi-judicial agencies in the exercise of their
quasi-judicial functions.
Court of Tax Appeals
Exclusive appellate jurisdiction to review by
appeal, on:
1. Decisions of CIR in disputed assessments,
refunds, or other matters arising under the
NIRC or other laws administered by the
BIR;
2. Inaction by the CIR involving matters in (a)
above, where the NIRC provides a specific
period of action, in which case the inaction
shall be deemed a denial.
Note: Sec. 3, Rule 4, of the CTA Rules
(A.M. No. 05-11-07-CTA) added, that an
appeal in case of inaction shall be deemed
a denial ―for purposes of allowing the
taxpayer to appeal his case to the CTA and
does not necessarily constitute a formal
decision of the Commissioner of Internal
Revenue on the tax case‖
3. Decisions of RTC in local tax cases
originally decided or resolved by them
4. Decisions of the Commissioner of Customs
in cases involving liability for customs
duties
5. Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving
the assessment and taxation of real
property originally decided by the provincial
or city board of assessment appeals
6. Decisions of the Secretary of Finance on
customs cases elevated to him
automatically for review from
Commissioner of Customs which are
adverse to the Government
8 CENTER FOR LEGAL EDUCATION AND RESEARCH
7. Decisions of the Secretary of Trade and
Industry, in the case of nonagricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving dumping and countervailing
duties under the Tariff and Customs Code.
Jurisdiction over criminal offenses as
herein provided:
 Exclusive Original jurisdiction over cases
involving criminal offenses over all criminal
offenses arising from violations of the NIRC
or Tariff and Customs Code and other laws
administered by the BIR or the Bureau of
Customs, where the principal amount of
taxes and fees, exclusive of charges and
penalties, claimed is at least One million
pesos (P1,000,000.00), or where there is a
specified amount claimed.
Exclusive appellate jurisdiction in
criminal offenses:
 Over appeals from the judgments RTC in
tax cases originally decided by them
 Over petitions for review of the judgments
RTC in the exercise of their appellate
jurisdiction over tax cases originally
decided by the MTC
Jurisdiction over tax collection cases as
herein provided:
 Exclusive original jurisdiction in tax
collection cases involving final and
executory assessments for taxes, fees,
charges and penalties when the amount is
at least than One million pesos
(P1,000,000.00).
Exclusive appellate jurisdiction in tax
collection cases:
1. Over appeals from the judgments RTC in tax
cases originally decided by them
2. Over petitions for review of the judgments
RTC in the exercise of their appellate

jurisdiction over tax cases originally decided
by the MTC (R.A. 9282, Sec. 7, promulgated
March 30 2004)
Note: In criminal offenses involving an amount
less than one million pesos, the RTC or MTC
shall have jurisdiction. As to whether the case
falls under RTC or MTC depends on B.P. 129 as
amended, i.e. length of imprisonment, and NOT
the amount involved. In other words, where
the criminal offense is punishable with
imprisonment not exceeding six (6) years
irrespective of the amount of fine, and
regardless of other imposable accessory or
other penalties, including the civil liability
arising from such offenses or predicated
thereon, irrespective of kind, nature, value, or
amount thereof, the MTC has jurisdiction (Sec.
32(2), B.P. 129 as amended). Otherwise, RTC has
jurisdiction (Sec. 20, B.P. 129 as amended)
Splitting of Jurisdiction
CTA has jurisdiction over a special civil action
for certiorari assailing an interlocutory order
issued by the RTC in a local tax case.
 The power of the CTA includes that of
determining whether or not there has been
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the
RTC in issuing an interlocutory order in
cases falling within the exclusive appellate
jurisdiction of the tax court. Indeed, in
order for any appellate court to effectively
exercise its appellate jurisdiction, it must
have the authority to issue, among others,
a writ of certiorari. X x x To rule otherwise
would lead to an absurd situation where
one court decides an appeal in the main
case while another court rules on an
incident in the very same case. X x x It
would be somewhat incongruent with
the pronounced judicial abhorrence to
split jurisdiction to conclude that the
intention of the law is to divide the
authority over a local tax case filed with
the RTC by giving to the CA or this Court
jurisdiction to issue a writ of certiorari
against interlocutory orders of the RTC but
giving to the CTA the jurisdiction over the
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appeal from the decision of the trial court
in the same case. It is more in
consonance with logic and legal
soundness to conclude that the grant
of appellate jurisdiction to the CTA
over tax cases filed in and decided by
the RTC carries with it the power to
issue a writ of certiorari when
necessary in aid of such appellate
jurisdiction. The supervisory power or
jurisdiction of the CTA to issue a writ of
certiorari in aid of its appellate jurisdiction
should co-exist with, and be a complement
to, its appellate jurisdiction to review, by
appeal, the final orders and decisions of
the RTC, in order to have complete
supervision over the acts of the latter. A
grant of appellate jurisdiction implies that
there is included in it the power necessary
to exercise it effectively, to make all orders
that will preserve the subject of the action,
and to give effect to the final determination
of the appeal. It carries with it the power
to protect that jurisdiction and to make the
decisions of the court thereunder effective.
The court, in aid of its appellate
jurisdiction, has authority to control all
auxiliary and incidental matters necessary
to the efficient and proper exercise of that
jurisdiction. (City of Manila vs. Judge Caridad
Cuerdo, G.R. No. 175723, February 4, 2014)
2.A.3. Sandiganbayan
(Sec. 4, R.A. 8249, promulgated Feb 5, 1997)
Sandiganbayan is not a constitutional court,
it is a constitutionally mandated court created
by law as required by the Constitution.
Exclusive original
Note: The uniqueness in the jurisdiction of the
Sandiganbayan is that it is determined by three
(3) factors, embodied in the following
questions:
1. What was the crime committed?
2. Who committed the offense?
3. How was the crime committed?
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ARELLANO UNIVERSITY SCHOOL OF LAW
What are the crimes committed? AMIBEF
1. Violations of R.A. 3019, Anti Graft and
Corrupt Practices Act
2. R.A. 1379 (on Ill-gotten wealth),
3. Executive Orders issued against Marcoses
Wealth (EO Nos. 1, 2, 14 and 14-A)
4. Chapter II, Section II, Title VII, of Book II
of the Revised Penal Code (Bribery), and
5. Other offenses or felonies, whether simple
or complexed with other crimes, committed
in relation to office. (Estafa, Falsification of
Document,Plunder)
Note: Civil and criminal cases filed pursuant to
and in connection with E.O. Nos. 1, 2, 14 and
14-A (Sequestration cases), issued in 1986, as
filed by PCGG
Who committed the offense?
Where one or more of the accused are officials
occupying the following positions in the
government, whether in a permanent, acting or
interim capacity, at the time of the commission
of the offense.
Officials of the executive branch occupying the
positions of Regional Director and higher,
otherwise classified as grade ―27‖ and higher,
of the Compensation and Classification Act of
1989 (R.A. No. 6758), specifically including:
1. Provincial Governors, Vice-Governors,
Members of the Sangguniang Panlalawigan,
and Provincial Treasurers, Assessors,
Engineers, and other Provincial Department
Heads.
2. City Mayors, Vice-Mayors, Members of the
Sangguniang Panlungsod, city treasurers,
assessors, engineers and other city
department heads.
3. Officials of the diplomatic service occupying
the position of consul or higher
4. Philippine army and air force colonels,
naval captains, and all officers of
higher ranks.
5. Officers of the Phi. Nat‘l. Police while
occupying the position of provincial director
and those holding the rank of senior
superintendent or higher.
10 CENTER FOR LEGAL EDUCATION AND RESEARCH
6. City and Provincial prosecutors and their
assistants, and officials and prosecutors in
the Office of the Ombudsman and special
prosecutor.
7. Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state universities
or educational institutions or foundations.
Note: The salary grade ―27‖ requirement
does NOT apply if the officer involved is
any of those enumerated in VII above- not
intended to be salary graded (Hannah
Serrana vs. Sandiganbayan, January 28, 2008)
8. Members of Congress and officials thereof
classified as Grade ―27‖ and up under the
Compensation and Position Classification
Act of 1989
9. Members of the Judiciary without prejudice
to the provisions of the Constitution.
10. Chairmen and members of Constitutional
Commissions, without prejudice to the
provisions of the Constitution.
11. All other national and local officials
classified as Grade ―27‖ and higher under
the Compensation and Position
Classification Act of 1989.
How was the crime committed?
In criminal cases, Sandiganbayan shall have
original jurisdiction where there are specific
allegations of facts showing that the offense
was committed in relation to their office,
otherwise, regular courts shall take cognizance
in accordance to their vested jurisdictions.
Appellate
From the Regional Trial Courts in cases under
P.D. 1606, as amended by P.D. 1861, R.A.
7975 and R.A. 8294, whether or not the cases
were decided by them in the exercise of their
original or appellate jurisdictions. (Regalado,
Remedial Law Compendium, Vol. II, p. 277)
Appeal from final judgments, resolutions or
orders of regular courts where all the accused
are occupying positions lower than Salary
Grade 27 or are not otherwise covered by
Sec.1(A) subsection 1 above.

 More importantly, the Sandiganbayan is a
special criminal court which has exclusive
original jurisdiction in all cases involving
violations of R.A. 3019 committed by
certain public officers, as enumerated in
P.D. 1606 as amended by R.A. 8249. This
includes private individuals who are
charged as co-principals, accomplices or
accessories with the said public officers. In
the instant case, respondent is being
charged for violation of Section 3(g) of R.A.
3019, in conspiracy with then Secretary
Enrile. Ideally, under the law, both
respondent and Secretary Enrile should
have been charged before and tried jointly
by the Sandiganbayan. However, by reason
of the death of the latter, this can no
longer be done. Nonetheless, for reasons
already discussed, it does not follow that
the SB is already divested of its jurisdiction
over the person of and the case involving
herein respondent. To rule otherwise would
mean that the power of a court to decide a
case would no longer be based on the law
defining its jurisdiction but on other factors,
such as the death of one of the alleged
offenders. (People of the Philippines vs. Henry
T. Go, G.R. No. 168539, March 25, 2014)
2.A.4. Regional Trial Courts
Exclusive original
Civil cases
1. Actions in which the subject of the litigation
is incapable of pecuniary estimation.
2. Actions which involve the title to, or
possession of real property, or any interest
therein, where the assessed value of the
property involved exceeds P20,000 or
exceeds P50,000 in Metro Manila, except
actions for forcible entry into and unlawful
detainer.
3. Admiralty and maritime jurisdiction where
the demand or claim exceeds P300,000 or
exceeds P400,000 in Metro Manila.
4. Matters of probate, both testate and
intestate, where the gross value of the
estate exceeds P300,000 or exceeds
P400,000 in Metro Manila.
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5. General Jurisdiction: Cases not within the
exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-
judicial functions.
6. All other cases where demand (exclusive of
interest, damages of whatever kind,
attorney‘s fees, litigation expenses, and
costs), or the value of the property in
controversy, exceeds P300,000 or exceeds
P400,000 in Metro Manila.
Note: If the claim for damages is the main
cause of action, amount thereof shall be
considered in determining the jurisdiction
of the court.
7. Actions and special proceedings falling
within the exclusive original jurisdiction of
Juvenile and Domestic Relations Court and
Court of Agrarian Relations.
Incapable of Pecuniary Estimation: the claim
or the issue cannot be reduced inot an amount.
Examples:
a. Annulment or rescission of contract;
b. Specific performance;
c. Cancellation of title – the ultimate relief is
the cancellation of the title, the subject is
only the title itself; this is different from
actions involving title to, or possession of,
real property, the jurisdiction of which may
be determined by the assessed value;
d. Cancellation of mortgage.
Ruby Shelter case - initially assessed by the
clerk of court as incapable of pecuniarty
estimation. Later on, it was determined that
the ultimate result of the case is that title
would pass on, not merely for recovery of title
(document), but the title to the property itself
(ownerhip). The RTC then assessed filing fees.
CA sustained the RTC. The Supreme Court
sustained RTC and CA. The petitioner‘s
complaint involved not only the annulment of
the deed of sale but also the recovery of the
real properties identified in the documents. In
other words, the objective of the petitioner in
filing the case were to cancel the deed and
ultimately to recover possession. The value of
the property determines the filing fees.
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ARELLANO UNIVERSITY SCHOOL OF LAW
Criminal cases:
Cases not within the exclusive jurisdiction of
any court, tribunal or body (Sec. 20, B.P. 129),
such as those:
1. Where the penalty provided by law exceeds
6 years imprisonment irrespective of the
fine.
2. Under (a) above not falling under the
original jurisdiction of the Sandiganbayan
3. Where the only penalty provided by law is a
fine exceeding P4,000 (Adm. Cir. 09-94)
4. Libel (Article 360, Revised Penal Code)
 The acts or omissions of a judge may
well constitute at the same time both a
criminal act and an administrative
offense. X x x Trial courts retain
jurisdiction over the criminal aspect of
offenses committed by justices of
appellate courts and judges of lower
courts. (Office of the Court Administrator vs.
Sardido, A.M. No.MTJ-01-1370. April 25,
2003)
Appellate
Cases decided by the M.T.C., MeTC, and MCTC
in their respective territorial jurisdictions except
decisions of lower courts in the exercise of
delegated jurisdiction.
2.5.1. Family Courts (RA 8369, Sec. 5)
The Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:
1) Criminal cases where one or more of the
accused is below eighteen (18) years of
age but not less than nine (9) years of age
or where one or more of the victims is a
minor at the time of the commission of the
offense: Provided, That if the minor is
found guilty, the court shall promulgate
sentence and ascertain any civil liability
which the accused may have incurred. The
sentence, however, shall be suspended
without need of application pursuant to
Presidential Decree No. 603, otherwise
known as the "Child and Youth Welfare
12 CENTER FOR LEGAL EDUCATION AND RESEARCH
Code";
2) Petitions for guardianship, custody of
children, habeas corpus in relation to the
latter;
3) Petitions for adoption of children and the
revocation thereof;
4) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property
relations of husband and wife or those
living together under different status and
agreements, and petitions for dissolution of
conjugal partnership of gains;
5) Petitions for support and/or
acknowledgment;
6) Summary judicial proceedings brought
under the provisions of Executive Order No.
209, otherwise known as the "Family Code
of the Philippines";
7) Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children; the
suspension, termination, or restoration of
parental authority and other cases
cognizable under Presidential Decree No.
603, Executive Order No. 56, Series of
1986, and other related laws.
8) Petitions for the constitution of the family
home.
9) Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
10) Violations of Republic Act No. 7610,
otherwise known as the "Special Protection
of Children Against Child Abuse,
Exploitation and Discrimination Act," as
amended by Republic Act No. 7658; and
Cases of domestic violence against:
1. Women - which are acts of gender based
violence that results, or are likely to result
in physical, sexual or psychological harm or
suffering to women; and other forms of
physical abuse such as battering or threats
and coercion which violate a woman's
personhood, integrity and freedom
movement; and
2. Children - which include the commission of
all forms of abuse, neglect, cruelty,
exploitation, violence, and discrimination

and all other conditions prejudicial to their
development.
Special Provisional Remedies:
Restraining order against the accused or
defendant upon verified application in cases of
violence among the family members living in
the same domicile/household.
Court may order the temporary custody of
children in all civil actions for their custody,
support pendete lite, including deduction from
the salary, and use of conjugal home and other
properties in civil actions for support.
Note: The Family Courts are creations of law,
as distinguished from Special Commercial
Courts and Intellectual Property Courts which
are created by Supreme Court issuances.
2.A.6. Metropolitan Trial Courts/
Municipal Trial Court
Exclusive original
1. Actions involving personal property whose
value does not exceed P300,000 or does
not exceed P400,000 in Metro Manila;
2. Probate proceedings, both testate and
intestate, where the gross value of the
estate does not exceed P300,000 or does
not exceed P400,000 in Metro Manila;
3. Actions involving title to or possession of
real property, or any interest therein where
the assessed value or interest therein does
not exceed P20,000 or does not exceed
P50,000 in Metro Manila;
4. Admiralty and maritime cases where the
demand or claim does not exceed P300,000
or does not exceed P400,000 in Metro
Manila;
5. Inclusion and exclusion of voters (B.P. 881,
Sec. 138);
6. Provisional remedies in principal actions
within their jurisdiction;
7. All demand for money not exceeding
P400,000 in Metro Manila;
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8. Small Claims Cases (A.M. No. 08-8-7-SC)
where the value of the demand does not
exceed P200,000 (effective February 1, 2016).
Note: Demand for money excludes
interest, damages of whatever kind,
attorney‘s fees, litigation expenses, and
costs, which amount must be specifically
alleged. The said exclusions are included
in determining filing fees.
In cases where the claim for damages is the
main cause of action, or one of the causes of
action, the amount of such claim shall be
considered in determining jurisdiction.
Except in cases falling within the
exclusive original jurisdiction of the RTC
and of the Sandiganbayan
1) Violations of the city or municipal
ordinances committed within their
respective territorial jurisdiction.
2) Offenses punishable with imprisonment not
exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable accessory or other penalties,
including the civil liability arising from such
offenses or predicated thereon, irrespective
of kind, nature, value or amount thereof.
3) Offenses under (b) above including those
not falling within the exclusive original
jurisdiction of the Sandiganbayan where
none of the accused are occupying
positions corresponding to salary grade
―27‖ and higher.
4) Offenses involving damage to property
through criminal negligence.
5) In cases where the only penalty provided
by law is a fine of not more than Php
4,000.00. (Adm. Cir. 09-94)
6) Cases covered by the Rule on Small Claims.
7) Cases covered by the Rules on Summary
Procedure.
In Civil Cases
Forcible Entry and Unlawful detainer
1. Irrespective of the amount of damages or
unpaid rentals sought to be recovered.
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ARELLANO UNIVERSITY SCHOOL OF LAW
2. Jurisdiction to resolve issue of ownership to
determine only the issue of possession.
3. All other cases, except probate
proceedings, where total claim does not
exceed P100,000 or does not exceed
P200,000 in Metro Manila (A.M. No. 02-11-09
SC effective Nov. 25, 2002)
In Criminal Cases
1. Violations of traffic laws, rules and
regulations;
2. Rental Law violations;
3. Violations of city or municipal ordinances;
4. Violations of B.P.22 (Bouncing Checks Law);
(A.M. No.00-11-01-SC effective April 15, 2003);
5. All other criminal cases where the penalty
is imprisonment not exceeding 6 months
and/or P1,000 fine irrespective of other
penalties or civil liabilities arising there
from;
6. Offenses involving damage to property
through criminal negligence where the
imposable fine is not exceeding P10,000.
Note: Cases filed by the parties after failure to
reach an amicable settlement in barangay
conciliation proceedings are tried by the MTC in
the exercise of its original jurisdiction.
2.A.7. Shari‟a Courts
In general, the Shari'a courts shall have
jurisdiction over cases involving personal,
family and property relations, and commercial
transactions, in addition to their jurisdiction
over criminal cases involving Muslims. (Source:
Secs.5, 9 and 10, Art. VIII, R.A. 9054)
Shari'a Appellate Court
1. Exercise original jurisdiction over petitions
for certiorari, prohibition, mandamus,
habeas corpus, and other auxiliary writs
and processes only in aid of its appellate
jurisdiction; and,
2. Exercise exclusive appellate jurisdiction
over all cases tried in the Shari'a district
courts as established by law. (Sec. 9, Art.
VIII, R.A. 9054)
14 CENTER FOR LEGAL EDUCATION AND RESEARCH
Note: The decisions of the Shari'a Appellate
Court shall be final and executory. Nothing
herein contained shall, however, affect the
original and appellate jurisdiction of the
Supreme Court, as provided in the Constitution.
(Sec. 10, Art. VIII, R.A. 9054)
Shari'a District Court
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under Presidential Decree No. 1083;
2. All cases involving disposition, distribution
and settlement of the estate of a deceased
Muslim, probate of wills, issuance of letters
of administration or appointment of
administrators or executors regardless of
the nature or the aggregate value of the
property;
3. Petitions for declaration of absence and
death and for cancellation and correction of
entries in the Muslim Registries mentioned
in Title VI, Book Two of Presidential Decree
No. 1083;
4. All actions arising from customary contracts
in which the parties are Muslims, if they
have not specified which law shall govern
their relations;
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and
all auxiliary writs and processes in aid of its
appellate jurisdiction;
Shari'a Circuit Court
1. All cases involving offenses defined and
punished under Presidential Decree No.
1083;
2. All civil actions and proceedings between
parties who are Muslims or have been
married in accordance with Article 13 of
Presidential Decree No. 1083 involving
disputes relating to:
a. Marriage;
b. Divorce recognized under Presidential
Decree No. 1083;
c. Betrothal or breach of contract to
marry;
d. Customary dowry.

e. Disposition and distribution of property
upon divorce.
f. Maintenance and support, and
consolatory gifts and
g. Restitution of marital rights.
All cases involving disputes relative to
communal properties.
Concurrent jurisdiction of the Shari'a
District Court with the Circuit Court:
1. Petitions by Muslims for the constitution of
the family home, change of name and
commitment of insane person to any
asylum;
2. All other personal and real actions not
mentioned in paragraph 1(d) wherein the
parties involved are Muslims except those
for forcible entry and unlawful detainer
which shall fall under the exclusive original
jurisdiction of the Municipal Circuit Courts;
and
3. All special civil actions for interpleader or
declaratory relief where the parties are
Muslims or the property involved belongs
exclusively to a Muslim.
Summary of Jurisdiction Over the Subject
Matter
Family Courts:
1. Criminal cases where one or more of the
accused is a minor
2. petitions for guardianship, custody of
children, habeas corpus in relation to the
minor
3. petitions for adoption of children and the
revocation thereof
4. All cases involving marriage
5. Petitions for support and/or
acknowledgment
6. Summary judicial proceedings brought
under the Family Code
7. Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children; the
suspension, termination, or restoration of
parental authority and other cases
2018
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cognizable under Presidential Decree No.
603, Executive Order No. 56, and other
related laws
8. Petitions for the constitution of the family
home
9. Cases against minors cognizable under the
Dangerous Drugs Act, as amended
10. Violations of Republic Act No. 7610 as
amended by R.A. no. 7658
11. Cases of domestic violence against women
and children
Shari‟a Courts
In general, all cases involving personal, family
and property relations, and commercial
transactions, in addition to their jurisdiction
over criminal cases involving Muslims.
Court of Tax Appeals (CTA)
1. Decision or inaction by the CIR
2. Decision of RTC in local tax cases
3. Decisions involving liability for customs
duties
4. Decision of Central Board of Assessment
Appeals over cases involving the
assessment and taxation of real property
5. Decisions of Secretary of Finance on
customs cases elevated to him
automatically for review
6. Decisions of Secretary of Trade and
Industry involving Tariff and Customs code
of non-agricultural products
7. Decisions of Secretary of Agriculture
involving Tariff and Customs code of non-
agricultural products
Sandiganbayan
1. Violations of R.A. 3019,
2. R.A. 1379 (on ill-gotten wealth),
3. Chapter II, Section II, Title VII, of Book II
of the Revised Penal Code (Bribery), and
4. Other offenses or felonies, whether simple
or complexed with other crimes, committed
in relation to office. Ex:
5. Estafa (Hannah Serrana vs. SB, G.R. No.
162059, January 22, 2008)
6. Falsification of Document (Garcia vs. SB, 603
SCRA)
7. Plunder (R.A. 7080, Sec. 3)
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ARELLANO UNIVERSITY SCHOOL OF LAW

8. Civil and criminal cases filed pursuant to
and in connection with E.O. Nos. 1,2, 14
and 14-A (Sequestration cases), issued in
1986, as filed by PCGG
9. One or more of the accused national and
local official is classified as Grade ―27‖ or
higher; or
10. Regardless of the salary grade, any of the
following:
a) Provincial Department Heads.
b) City department heads.
c) diplomatic service officials who are
consul or higher
d) Philippine army and air force colonels,
naval captains, and all officers of
higher ranks.
e) Officers of the PNP who are either
provincial director, senior
superintendent, or higher.
f) City and Provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor.
g) Presidents, directors or trustees, or
managers of GOCC, state universities
or educational institutions or
foundations.
Court of Appeals: Annulment of Judgment
under Rule 47
Supreme Court:
Certiorari Prohibition Mandamus Quo warranto
Habeas Corpus PMQH over 5 agencies, to wit:
1) Court of Appeals
2) Court of Tax Appeals en banc
3) Sandiganbayan
4) Commission on Audit (under Rule 64)
5) Commission on Elections (under Rule 64)

CONCURRENT
SC, CA,
SC and CA SC and SB SB, CA, and RTC SC AND RTC
and RTC

Petitions for Petitions for Petition for writ of 1.Petitions for Action affecting
certiorari, mandamus, amparo and petition habeas corpus and ambassador, other
C prohibition and prohibition, certiorari, for writ of habeas quo warranto; public ministers and
O mandamus habeas corpus, data. consuls.
N against the injunction, and other 2. Petitions for writs
C following: ancillary writs and of certiorari,
U processes in aid of its prohibition and
R RTC and lower appellate jurisdiction mandamus against
R courts; and over petitions of lower courts or
E similar nature, bodies;
N National Labor including quo
T Relations warranto, arising or 3. Petition for writ of
Commission; that may arise in amparo;
J cases filed or which
U Civil Service may be filed under 4. Petition for writ of
R Commission; E.O. Nos. 1, 2, 14 habeas data.
I and 14-A, issued in
S Quasi-Judicial 1986 (Sequestration
D Agencies. of ill-gotten wealth by
I Pres. Marcos, his
C Family and friends)
T
I
O
N

16 CENTER FOR LEGAL EDUCATION AND RESEARCH

 2018
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S U P R E M E
C o u r t

Commissi COMELE Sandiganbayan CTA en

on on C
banc
Audit
Shari’ah
Appellate Court
Court of Appeals P.D.
1861 Local Tax
R.A. Cases,
7975 Criminal tax
District R.A.
All cases
Shari’ah Court others 8294

CSC and other Quasi-

Family Regional Trial Courts
judicial agencies listed
in Rule 43 Sec. 1 Courts
(NOTE: NLRC is NOT
included)

Municipal Trial Courts, Metropolitan Trial Courts,

Municipal Circuit Trial Courts,
Circuit Shari’ah Municipal Trial Courts in cities
Court

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ARELLANO UNIVERSITY SCHOOL OF LAW
2.B. JURISDICTION OVER THE
PARTIES
2.B.1. How Jurisdiction Over the Person
of the Plaintiff is Acquired
Acquired when the plaintiff files the complaint.
By seeking affirmative relief through the
complaint, there is an implied submission of
the plaintiff‘s person to the jurisdiction of the
court.
2.B.1. How Jurisdiction Over the Person
of the Plaintiff is Acquired
It is acquired either:
a) By a valid service of summons or;
b) By his voluntary appearance or submission
to the jurisdiction of the court. The
defendant‘s voluntary appearance in the
action is equivalent to service of
summons.
Note: Lack of jurisdiction over one‘s person
may be invoked in a motion to dismiss or it
may be raised as an affirmative defense in the
answer. Under the previous rule, the objection
to jurisdiction must be done by making a
special appearance in a motion to dismiss
invoking the lack of jurisdiction over the
person of the defendant as the only ground.
Adding any other ground was construed as
voluntary appearance or submission to the
jurisdiction of the court. But now, 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 as voluntary
appearance. (Sec. 20, Rule 14 of the Rules of
Court)
Note: Instances when appearance of
defendant is tantamount to voluntary
submission to the jurisdiction of the court:
a) When defendant files the necessary
pleading;
b) When defendant files motion for
reconsideration of the judgment by
default;
c) When defendant files a petition to set
aside the judgment of default;
18 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
d) When the parties jointly submit a
compromise agreement for approval of
the court;
e) When defendant files an answer to the
contempt charge;
f) When defendant files a petition for
certiorari without questioning the court‘s
jurisdiction over his person (Navale vs. CA,
253 SCRA 705).
In criminal cases, the court acquire jurisdiction
over the person of the accused by:
a) Arrest;
b) Service of the warrant of arrest; or
c) Voluntary surrender
2.C. JURISDICTION OVER THE
SUBJECT MATTER
2.C.1. Meaning of Jurisdiction over the
Subject Matter
Jurisdiction over the subject matter is the
power to hear and determine the general class
to which the proceedings in question belong;
it is conferred by law and not by the consent
or acquiescence of any or all of the parties or
by erroneous belief of the court that it exists
(Mitsubishi Motors vs Bureau of Customs, G.R.
No.209830, June 17, 2015).
Note: The term, ―subject matter‖ refers to the
item with respect to which the controversy has
arisen, or concerning which, the wrong has
been done, and it is ordinarily the right, the
thing, or the contract under dispute (De la
Rama vs. Mendiola, 401 SCRA 704).
Examples: The terms ‗unlawful detainer‘,
‗forcible entry‘, or actions ‗incapable of
pecuniary estimation‘ are subject matters. So
are the terms accion publiciana, accion
reinvindicatoria, partition of property,
foreclosure of mortgage, expropriation,
habeas corpus and action for damages,
among others (Riano, Civil Procedure, pgs. 125-
126, 2007 ed.).
2.C.2. Jurisdiction versus Exercise of
Jurisdiction
Exercise of
Jurisdiction
Jurisdiction
Power or authority of The exercise of the
 2018
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the court to decide a court‘s power or conferred upon the courts exclusively by law
case. authority. and the lack thereof affects the very authority
Errors in assuming Errors in the exercise of of the court to take cognizance of the case,
jurisdiction results to jurisdiction results only objections thereto may be raised at any stage
error of jurisdiction. to errors of judgment.
of the proceeding, even on appeal.
 Where there is jurisdiction over the
subject matter, the decision on all other Exceptions:
questions arising in the case is but an
exercise of jurisdiction. The errors which a. Jurisdiction By Estoppel – after
the courts may commit in the exercise of voluntarily submitting a cause and
jurisdiction are merely errors of judgment encountering an adverse decision on the
which are the proper subjects of an merits, it is too late for the losing party to
appeal (Tolentino vs. Leviste, 443 SCRA 274). question the jurisdiction or power of the
court.
2.C.3. Error of Jurisdiction as
Distinguished from Error of Judgment. Note: In Tijam vs. Sibonghanoy, 23 SCRA
29, the party was barred by laches from
Error of Jurisdiction Error of Judgment
invoking the plea for the first time on
Court has no jurisdiction Presupposes that the
appeal, for the purpose of annulling
over the case or acted in court has jurisdiction.
excess of conferred everything done in the case, due to the
jurisdiction. active participation of said party invoking
Pertains to acts of the Pertains to acts of the plea.
court committed with the court arising
grave abuse of from its decision b. Estoppel in Pais – where a party actively
discretion amounting to which does not participated in all stages of the
lack or in excess of amount to lack or proceedings before the trial court and
jurisdiction. excess of jurisdiction; invoked its authority by asking for an
includes errors of
affirmative relief, he is estopped from
procedure or mistake
in court findings. challenging the trial court‘s jurisdiction,
Remedy: original action Remedy: appeal especially when an adverse judgment has
for certiorari as a special been rendered. (Soliven v. Fastforms
action under Rule 65. Philippines, Inc., G.R. No. 139031, October 18,
2004)
Effect: renders the Effect: Decision is
decision of the court to still valid. A ground  Laches, in a general sense, is failure
be either void or for reversal only if it or neglect, for an unreasonable and
voidable. is shown that unexplained length of time, to do that
prejudice has been which, by exercising due diligence,
caused thereby could or should have been done
(Donato vs. CA, G.R.
earlier; it is negligence or omission to
No. 129638.
December 8, 2003). assert a right within a reasonable
time, warranting a presumption that
2.C.4. How Jurisdiction over the Subject the party entitled to assert it either
Matter is Conferred and Determined has abandoned it or declined to assert
it. The doctrine of laches or of "stale
How Jurisdiction over the Subject Matter demands" is based upon grounds of
is Conferred public policy which requires, for the
peace of society, the discouragement
General Rule: Jurisdiction over the subject of stale claims and, unlike the statute
matter is conferred by law. Nothing else can of limitations, is not a mere question
confer jurisdiction except the law. Since of time but is principally a question of
jurisdiction over the subject matter is the inequity or unfairness of
permitting a right or claim to be

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ARELLANO UNIVERSITY SCHOOL OF LAW
enforced or asserted. (Figueroa vs.
People, G.R. No. 147406, July 14, 2008)
 Lack of jurisdiction over the subject
matter can always be raised anytime,
even for the first time on appeal, since
jurisdictional issues cannot be waived
x xx subject, however, to the principle
of estoppel by laches." X x x Since the
defense of lack of jurisdiction over the
person of a party to a case is not one
of those defenses which are not
deemed waived under Section 1 of
Rule 9, such defense must be invoked
when an answer or a motion to
dismiss is filed in order to prevent a
waiver of the defense. If the objection
is not raised either in a motion to
dismiss or in the answer, the objection
to the jurisdiction over the person of
the plaintiff or the defendant is
deemed waived by virtue of the first
sentence of the above-quoted Section
1 of Rule 9 of the Rules of Court. x x
x In any case, respondent cannot
claim the defense since "lack of
jurisdiction over the person, being
subject to waiver, is a personal
defense which can only be asserted by
the party who can thereby waive it by
silence. (Boston Equity Resources vs. CA,
G.R. No. 173946, June 19, 2013)
How Jurisdiction over the Subject Matter
is Determined.
 It is a settled rule that jurisdiction over
the subject matter is determined by the
allegations of the complaint (Baltazar vs.
Ombudsman, 510 SCRA 74) regardless of
whether or not the plaintiff is entitled to
claims asserted therein (Gocotano vs.
Gocotano, 469 SCRA 328; Laresma vs.
Abellana, 442 SCRA 156).
Note: If by the averments of the
complaint, the court has jurisdiction, it
does not lose that jurisdiction just because
the defendant makes a contrary allegation
in his motion or answer or because the
court believes that the plaintiff‘s claims
are ridiculous and therefore, untrue. If by
the averments of the complaint, it has
20 CENTER FOR LEGAL EDUCATION AND RESEARCH
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jurisdiction, then it has jurisdiction. (Tomas
Claudio Memorial College, Inc., 316 SCRA 502)
2.C.5. Doctrine of Adherence of
Jurisdiction (Continuity of Jurisdiction)
Definition
Jurisdiction is referred to as ―continuing‖ in
view of the general principle that once a court
has acquired jurisdiction, that jurisdiction
continues until the court has done all that it
can do in the exercise of that jurisdiction (20
Am Jur 2d, Courts § 147).
 As a consequence of this principle,
jurisdiction is not affected by a new law
placing a proceeding under the jurisdiction
of another tribunal except when otherwise
provided in the statute or if the statute is
clearly intended to apply to actions
pending even before its enactment (People
vs. Cawaling, 293 SCRA 267; 20 Am Jur 2d,
Courts, § 150).
Notes:
 If the court has jurisdiction to act on a
motion at the time it was filed, that
jurisdiction to resolve the motion
continues until the matter is resolved and
is not lost by the subsequent filing of a
notice of appeal (Asmala vs. COMELEC, 289
SCRA 746).
 Even the finality of the judgment does not
totally deprive the court of jurisdiction
over the case. What the court loses is the
power to amend, modify and alter the
judgment. Even after the judgment has
become final, the court retains jurisdiction
to enforce and execute it (Echegaray vs.
Secretary of Justice, 301 SCRA 96).
Instances when doctrine is not
applicable

1. Where a subsequent statute expressly
prohibits the continued exercise of
jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent
law;
3. When accused is deprived of his
constitutional right such as where the court
fails to provide counsel for the accused
who is unable to obtain one and does not
intelligently waive his constitutional right;
4. Where the statute expressly provides, or is
construed to the effect that it is intended
to operate as to actions pending before its
enactment
5. When the proceedings in the court
acquiring jurisdiction is terminated,
abandoned or declared void;
6. Once appeal has been perfected;
7. Curative statutes (Herrera, Vol. I, p. 106,
2007 ed.).
2.C.6. Objections to Jurisdiction over the
Subject Matter
How Objection is Made
1. By Act of the Parties
a. By Filing a motion to dismiss
b. Raised as an affirmative defense in
the answer
2. By Court Motu Propio
―When it appears from the pleadings or
evidence on record that the court has no
jurisdiction over the subject matter, the court
shall dismiss the same‖ (Sec. 1, Rule 9, Rules of
Court).
The earliest opportunity of a party to raise the
issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer.
Lack of jurisdiction over the subject matter is
a ground for a motion to dismiss (Sec. 1[b],
Rule 16, Rules of Court). If no motion to dismiss
is filed, the defense of lack of jurisdiction may
be raised as an affirmative defense in the
answer (Section 6, Rule 16, Rules of Court).
Under the omnibus motion rule, a motion
attacking a pleading like a motion to dismiss,
shall include all grounds then available, and all
objections not so included shall be deemed
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waived (Sec. 8, Rule 15, Rules of Court). The
defense of lack of jurisdiction over the subject
matter is however, a defense not barred by
the failure to invoke the same in a motion to
dismiss already filed. Even if a motion to
dismiss was filed and the issue of jurisdiction
was not raised therein, a party may, when he
files an answer, raise the lack of jurisdiction as
an affirmative defense because this defense is
not barred under the omnibus motion rule.
When the court dismisses the complaint for
lack of jurisdiction over the subject matter, it
is common reason that the court cannot
remand the case to another court with the
proper jurisdiction. Its only power is to dismiss
and not to make any other order. (Riano, Civil
Procedure, pages 134-135, 2007 ed.).
When to Object
General rule: may be raised at any stage of
the proceedings, even for the first time on
appeal (Reason: jurisdiction is conferred by
law, and lack of it affects the very authority of
the court to take cognizance of and to render
judgment on the action).
Exception: Barred by Estoppel (Tijam vs.
Sibonghanoy).
2.C.7. Effect of Estoppel on Objections to
Jurisdiction
 While it is true that jurisdiction over the
subject matter may be raised at any stage
of the proceedings since it is conferred by
law, it is nevertheless settled that a party
may be barred from raising it on the
ground of estoppels. (La‘o vs. Republic, 479
SCRA 439, January 23, 2006).
 The Supreme Court frowns upon the
undesirable practice of submitting one‘s
case for decision, and then accepting the
judgment only if favorable, but attacking it
for lack of jurisdiction if it is not. (Bank of
the Philippine Islands vs. ALS Management &
Development Corporation, 427 SCRA 564).
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2.D. JURISDICTION OVER THE
ISSUES
Definition
This is the power of the court to try and
decide issues raised by the pleadings in order
to determine whether or not the court has
jurisdiction over the issues of the case, one
must look into the pleadings. This jurisdiction
means that the court must only pass upon
issues raised by the parties.
How jurisdiction over the issue
conferred and determined
1. conferred and determined by the pleadings
of the parties
2. may also be determined and conferred by
stipulation of the parties
3. waiver or failure to object to the
presentation of evidence on a matter not
raised in the pleadings (De Joya vs. Marquez,
G.R. No. 162416, 31 January 2006).
2.E. JURISDICTION OVER THE
RES OR PROPERTY IN
LITIGATION
How Jurisdiction is Acquired
It is acquired by the actual or constructive
seizure by the court of the thing in question.
This seizure is done through the writ of
preliminary attachment under Rule 57.
The court acquires jurisdiction over the res
even if it has not acquired jurisdiction over the
person of a non-resident defendant when the
action (PIEFAL):
a. Involves personal status of the plaintiff;
b. Relates to a property within the
Philippines where the defendant has a
claim or interest;
c. Involves a property within the Philippines
and the defendant is sought to be
excluded;
d. Property of the defendant is the subject of
attachment;
e. Land registration cases; or
f. Suits against foreign corporations not
doing business in the Philippines.
22 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
Note: Res is not limited to property but
applies also to an object, i.e. fact or status.
Examples:
a) Constructive seizure of the land through
publication and service of notice in land
registration cases. (Republic vs. Herbieto,
459 SCRA 183).
b) A suit for annulment against a non-
resident defendant may prosper when the
Court acquires jurisdiction over the res
through summons by publication or any of
is
the modes of extraterritorial service under
Sec. 15 of Rule 14. (Romualdez-Licaros vs.
Licaros, 401 SCRA 762).
Decision is limited to the value of the property
if jurisdiction is not acquired over the person
of the defendant: While the trial court
aqcquired jurisdiction over the res, its
jurisdiction is limited to a rendition of
judgment on the res. It cannot extend its
jurisdiction beyond the res and issue a
judgment enforcing petitioner‘s personal
liability. In doing so without first having
acquired jurisdiction over the person of
petitioner, as it did, the trial court violated her
constitutional right to due process, warranting
the annulment of the judgment rendered in
the case. (Biaco vs. Philippine Countryside Rural
Bank; G.R. No. 161417, February 8, 2007).
2.F. JURISDICTION OVER CASES
COVERED BY THE REVISED RULES
OF PROCEDURE FOR SMALL
CLAIMS CASES AND SUMMARY
PROCEDURE AND BARANGAY
CONCILIATION
Small Claims Cases
The revised rules of procedure for small claims
cases shall govern the procedure in actions
before the Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts
and Municipal Circuit Trial Courts for payment
of money where the value of the claim does
not exceed Two Hundred Thousand Pesos
(P200,000.00) exclusive of interest and costs.
(Sec. 2, The Revised Rules of Procedure for Small
Claims Cases)

Note: All MTC shall apply this Rule in all
actions that are purely civil in nature where
the claim or relief prayed for by the plaintiff is
solely for payment or reimbursement of sum
of money.
These claims or demands may be:
1. For money owed under any of the
following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale; or
e. Contract of Mortgage
2. For liquidated damages arising from
contracts;
3. 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. (Sec. 5, rule of
procedure for small claims cases)
Katarungang Pambarangay Law
(Presidential Decree No. 1508)
Established a system of amicably settling
disputes at the barangay level. It was
expressly repealed by R.A. 7160 (Local
Government Code of 1991). Most of its
provisions, however, were incorporated, (with
some modifications) under Book III, Title I,
Chapter VII of RA 7160.
 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
government office for adjudication unless:
 There has been a confrontation
between the parties before the lupon
chairman or pangkat; and
 No conciliation or settlement has been
reached or if one has been repudiated
by the parties thereto.
Cases not covered (Substantive
Exceptions)
1. One party is the government or any
subdivision or instrumentality;
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2. One party is a public officer or employee,
and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment
exceeding 1 year or fine exceeding Php
5,000;
4. Offenses with no private offended party;
5. Dispute involves real properties located in
different cities or municipalities unless the
parties agree to submit dispute to
amicable settlement by an appropriate
lupon;
6. Disputes involving parties who reside in
barangays of different cities or
municipalities except when such barangay
units adjoin each other and parties thereto
agree to submit their differences to
amicable settlement by an appropriate
lupon;
7. Classes of dispute which the President
may determine in the interest of justice.
8. One of the parties is a juridical entity.
Shall interrupt the prescriptive period for
offenses and cause of action upon filing of
complaint with the punong barangay but must
not exceed 60 days.
Other cases (Procedural Exceptions)
1. Accused is under police custody;
2. Person has been deprived of personal
liberty thus calling for a habeas corpus
proceeding;
3. Actions coupled with provisional remedies;
4. Action barred by prescription;
5. Labor disputes;
6. As determined by the President in the
interest of justice;
7. CARL disputes;
8. Those involving the traditions of
indigenous cultural community;
Actions to annul judgment upon a
compromise.
 Parties may, at any stage of the
proceedings agree in writing to have the
matter in dispute decide by arbitration by
either the punong barangay or pangkat.
Then, arbitrational hearings shall follow
the order of adjudicative trials.
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ARELLANO UNIVERSITY SCHOOL OF LAW

TOTALITY RULE they did not emanate from the legislature, but
since they were promulgated under authority
Under this rule, where there are several claims of the law, such rules have the force and
or causes of actions between the same or effect of laws.
different parties, embodied in the same
complaint, the amount of the demand shall be CASES NOT COVERED BY THE RULES OF
the totality of clams in all the causes of action, COURT (Sec. 4, Rule 1)
irrespective of whether the causes of action  Cadastral;
arouse out of the same or different  Land registration;
transactions (Sec. 33[1], BP Blg. 129 as amended  Election cases;
by RA No. 7691; Pantranco North Express, Inc. vs.  Naturalization;
Standard Insurance Company, Inc. 453 SCRA 482).  Insolvency proceedings; and
 Other cases not provided for in the Rules.
NOTE:
“MM‖ stands Note: The Rules of Court apply only in
MTC RTC
for ―Metro suppletory character or by analogy, whenever
Manila‖ practicable and convenient.
w/in Outside w/in Outside
MM MM MM MM
3.A. ACTIONS
Cases
involving
real or 3.A.1. Ordinary Civil Action
personal
property Definition
whose value
is… Ordinary Civil Action is one by which a party
Admiralty sues another for the enforcement or
and protection of a right, or the prevention or
not exceeding

maritime
exceeding

exceeding

exceeding
P 400,000

P 300,000

P 400,000

P 300,000

redress of a wrong. (Sec. 3[a], Rule 1)

cases where
not

the demand
or claim is… It is the legal and formal demand of one‘s
Matters of right from another person made and insisted
probate, upon in a court of justice.
both
testate and ACTION CLAIM
intestate, An ordinary suit in a A right possessed by
where gross court of justice one against another
value of One party prosecutes
estate The moment said
another for the
is… claim is filed before a
enforcement or
Actions court, the claim is
protection of a right or
converted into an
which the prevention or
involve the action or suit
redress of a wrong
not exceeding

not exceeding

title to, or
excee-ding
exceeding
P 50,000

P 20,000

P 50,000

P 20,000

possession Note: A civil action is of 2 types: (a) ordinary

of real
civil actions, and (b) special civil actions.
property,
where the
value of the 3.A.2. Special Civil Action
property
involved… Definition

Special Civil Action is one which is generally

3. CIVIL PROCEDURE brought or filed for the same purpose.
Although both types of actions are governed
The rules embodied in the Rules of Court are by the rules for ordinary civil actions, there are
not laws in the strict sense of the word since

24 CENTER FOR LEGAL EDUCATION AND RESEARCH

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certain rules that are applicable only to 3.A.5. Personal and Real Actions
specific civil actions, thus making such civil
action special (Riano, Civil Procedure, 2014 ed.). Actions based on Subject Matter

Ordinary Civil Action vs Special Civil REAL PERSONAL MIXED

Action Title to or Any action other Both real and
possession than real action. personal
ORDINARY CIVIL SPECIAL CIVIL of real Recovery of properties are
ACTION ACTION property, or personal involved.
Governed by ordinary Governed by Rules 62 an interest property or
rules. – 71. therein damages for
Involves formal demand Involves special (Sec1, breach of
of one‘s legal right in a features not found in Rule4) contract.
court of justice. ordinary civil action. Based on Based on privity Based on
privity of of contract. privity of both
real estate. estate and
3.A.3. CRIMINAL ACTION
Ex. Accion Ex. Action for contract.
reinvindicat sum of money Ex. Accion
Definition oria publiciana w/
claim
Criminal Action is one by which the state fordamages
prosecutes a person for an act or omission Filed in Filed in the The rules on
punishable by law. (Sec. 3[b], Rule 1) court where court where the venue of real
the plaintiff or any actions shall
3.A.4. Civil Action vs Special Proceedings property or of the govern.
any part defendants
Special Proceedings is a remedy by which a thereof is resides, at the
situated. option of the
party seeks to establish a status, a right, or a
plaintiff.
particular fact. (Sec. 3[c], Rule 1)
Note: Such distinction is significant in the
determination of venue.
Civil Action vs Special Proceedings Not all action involving real property is a real
action because the realty may only be incidental
SPECIAL to the subject matter of the suit.
CIVIL ACTION
PROCEEDINGS
A formal demand of a An application in a court
right violated by of justice to establish 3.A.6. Local and Transitory Actions
another in a court of the status or right of a
justice. party, or a particular
fact. Actions based on permissible venue
Commenced by Commenced by
Complaint or Petition. Application, Motion or LOCAL TRANSITORY
Petition. Action is brought in a Action is brought,
Adversarial (with May not be adversarial. particular place, in the generally, where the
opposing parties). absence of an party resides,
Period to appeal: Period to appeal: 30 agreement to the regardless of where
Generally 15 days; days; contrary, where the the cause of action
Requirement: filing of Requirement: filing of subject property is arose.
notice of appeal notice of appeal and located.
record on appeal
3.A.7. Actions in Rem, in Personam and
Quasi in Rem

Actions Based on The Binding Effect of

The Relief sought (Object of the Action)

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IN REM IN PERSONAM
QUASI IN and by these only. A proceeding in
REM personam is a proceeding to enforce
Action Action directed One that personal rights and obligations brought
directed t a against a specific names a against the person and is based on the
res seeking to defendant specific
jurisdiction of the person, although it may
bind any seeking to make defendant
person who him personally and the
involve his right to, or the exercise of
may have a liable to pay purpose of ownership of, specific property, or seek to
claim or certain sum of the action is compel him to control or dispose of it in
interest in the money, or to to subject accordance with the mandate of the court
res and/or deliver a thing or his interest (Domagas vs. Jensen, G.R. No. 158407.
personal to perform or not in a property January 17, 2005).
status to perform a to a
specific act. correspondin Examples of actions quasi in rem are: (a)
g lien or attachment; (b) foreclosure of mortgage; (c)
obligation action for partition; and (d) action for
burdening
accounting.
the res.
Directed Directed against Directed
against the a particular against  By its very nature and purpose, an action
thing itself. persons. particular for unlawful detainer or forcible entry is a
persons. real action and in personam because the
Binding upon Binding only Binding upon plaintiff seeks to enforce a personal
the whole between & the whole obligation or liability on the defendant
world. among the world under Article 539 of the New Civil Code,
parties to the for the latter to vacate the property
case. subject of the action, restore physical
Jurisdiction jurisdiction over jurisdiction
possession thereof to the plaintiff, and pay
over the the person of the over the
actual damages by way of reasonable
person of the defendant is person of
defendant is required. the compensation for his use or occupation of
not required, defendant is the property. (Ibid)
the court, not required
however, as long as Meanwhile, an action in rem is one directed
must have jurisdiction against the thing itself, instead of the person.
jurisdiction over the res A petition is directed against the ―thing‖ itself
over the res. is acquired or the res, which concerns the status of a
Concerns the Seeks to enforce Seeks to person, like a petition for adoption, annulment
status of a personal rights subject the
of marriage, or correction of entries in the
person and obligations property of a
birth certificate. This is brought against the
and to impose, person to
the whole world, where the court must have
through the
discharge of jurisdiction over the res.
judgment of a
the claim
court, some
assailed 3.A.8. Independent Civil Actions
responsibility or
liability directly
A civil action is commenced by:
upon the
person of the
1. Filing of the original complaint in court;
defendant.
and
Note: The above distinction is significant in
determining whether or not jurisdiction over the 2. Timely Payment of the Correct Docket
person of the defendant is required. Fees.

 Payment of the full amount of the docket

fee is mandatory and jurisdictional (Ayala
 Whether a proceeding is in rem, or in Land, Inc. vs Carpo, 345 SCRA 379). Well
personam, or quasi in rem for that matter, settled is the rule that the court cannot
is determined by its nature and purpose, acquire jurisdiction over the subject

26 CENTER FOR LEGAL EDUCATION AND RESEARCH


matter of a case, unless the docket fees
are paid. (Mercado vs. CA, G.R. No. 150241.
November 04, 2004).This rule was however,
relaxed by allowing the payment of the
fee within a reasonable time but not
beyond the prescriptive period (Sun
Insurance Office Ltd. vs. Asuncion, 170 SCRA
274).
 If the fees are not paid at the time of the
filing, the court acquires jurisdiction only
upon full payment of the fees within a
reasonable time as the court may grant,
barring prescription (Ballatan vs. CA, 304
SCRA 34).
 The basis of assessment of the docket fee
should be the amount of damages sought
in the original complaint and not in the
amended complaint. (Manchester
Development Corporation vs. Court of Appeals,
G.R. No. 75919, May 7, 1987)
 The amount of any claim for damages,
therefore, arising on or before the filing of
the complaint or any pleading should be
specified. While it is true that the
determination of certain damages as
exemplary or corrective damages is left to
the sound discretion of the court, it is the
duty of the parties claiming such damages
to specify the amount sought on the basis
of which the court may make a proper
determination, and for the proper
assessment of the appropriate docket
fees. The exception contemplated as to
claims not specified or to claims although
specified are left for determination of the
court is limited only to any damages that
may arise after the filing of the complaint
or similar pleading for then it will not be
possible for the claimant to specify nor
speculate as to the amount thereof.
(Proton Pilipinas Corporation vs. Banque
Nationale De Paris, G.R. No. 151242, June 15,
2005)
Thus, the Court rules as follows:
1. It is not simply the filing of the
complaint or appropriate initiatory
pleading, but the payment of the
prescribed docket fee, that vests a
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trial court with jurisdiction over the
subject-matter or nature of the action.
Where the filing of the initiatory
pleading is not accompanied by
payment of the docket fee, the court
may allow payment of the fee within a
reasonable time but in no case
beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive
counterclaims, third-party claims and
similar pleadings, which shall not be
considered filed until and unless the
filing fee prescribed therefor is paid.
The court may also allow payment of
said fee within a reasonable time but
also in no case beyond its applicable
prescriptive or reglementary period.
3. Where the trial court acquires
jurisdiction over a claim by the filing
of the appropriate pleading and
payment of the prescribed filing fee
but, subsequently, the judgment
awards a claim not specified in the
pleading, or if specified the same has
been left for determination by the
court, the additional filing fee therefor
shall constitute a lien on the
judgment. It shall be the responsibility
of the Clerk of Court or his duly
authorized deputy to enforce said lien
and assess and collect the additional
fee. (Sun Insurance Office Ltd. supra).
 Payment of docket fees, necessary in
permissive counterclaim, but not in
compulsory counterclaim.
 There is no need for need for petitioner to
pay docket fees for her compulsory
counterclaim. On the other hand, in order
for the trial court to acquire jurisdiction
over her permissive counterclaim,
petitioner is bound to pay the prescribed
docket fees. (Alday vs. FGU Insurance
Corporation, G.R. No. 138822, January 23,
2001)
 Filing fees not dependent on the amount
of property if it is for breach of contract.
 Breach of contract gives rise to a cause of
action for specific performance or for
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ARELLANO UNIVERSITY SCHOOL OF LAW
rescission. A suit for such breach is not
capable of pecuniary estimation; hence,
the assessed value of the real estate,
subject of the said action, should not be
considered in computing the filing fees.
(Cabutihan vs. Land Center Construction, G.R.
No. 146594, June 10, 2002)
 A real action is an action affecting title to
or recovery of possession of real property.
X x x In a real action, the assessed value
of the property, or if there is none, the
estimated value thereof shall be alleged
by the claimant and shall be the basis in
computing the fees. (Ruby Shelter Builders
and Realty Development Corporation vs.
Formaran, G.R. No. 175914, February 10,
2009)
 The alleged BIR zonal valuation is not the
kind of valuation required by the Rule. It
is the assessed value of the realty.
(Serrano v. Delica, 456 SCRA 82)
 A litigant who is a pauper is exempt from
the payment of the docket fees. But the
fees shall be a lien on the judgment
rendered in favor of said pauper litigant,
unless the court otherwise provides.
Construction of Rules
(Sec. 6, Rule 1)
General Rule: Liberal construction of the
rules to promote their objective of securing a
just, speedy and inexpensive disposition of the
action or proceeding.
Exceptions:
a. Reglementary periods; and
b. Rule on forum shopping.
 The Supreme Court may suspend its own
rules or exempt a particular case from its
operation where:
 The appellate court failed to obtain
jurisdiction over the case owing to
appellant‘s failure to perfect an
appeal.; or,
 The appellate court has already
obtained jurisdiction over the
appealed case.
28 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
 Procedural rules are tools designed to
facilitate the adjudication of cases. Courts
and litigants alike are thus enjoined to
abide strictly by the rules. And while the
Court, in some instances, allows a
relaxation in the application of the rules,
this we stress, was never intended to
forge a bastion for erring litigants to
violate the rules with impunity. The
liberality in the interpretation and
application of the rules applies only in
proper cases and under justifiable causes
and circumstances. While it is true that
litigation is not a game of technicalities, it
is equally true that every case must be
prosecuted in accordance with the
prescribed procedure to insure an orderly
and speedy administration of justice. (Hun
Hyung Park vs. Eung Won Choi, G.R. No.
165496, February 12, 2007)
 Lapses in the literal observance of a rule
of procedure will be overlooked when they
do not involve public policy, when they
arose from an honest mistake or
unforeseen accident, when they have not
prejudiced the adverse party and have not
deprived the court of its authority.
Conceived in the best traditions of
practical and moral justice and common
sense, the Rules of Court frown upon
hairsplitting technicalities that do not
square with their liberal tendency and with
the ends of justice unless something in
the nature of the factors just stated
intervene. (Oaminal vs. Castillo, G.R. No.
152776, October 8, 2003)
 Exception to the strict observance of
procedural rules.
 Viewed in this light, procedural rules are
not to be belittled or dismissed simply
because their non-observance may have
prejudiced a party's substantive rights;
like all rules, they are required to be
followed. However, there are recognized
exceptions to their strict observance, such
as:
 most persuasive and weighty reasons;
 to relieve a litigant from an injustice
not commensurate with his failure to
comply with the prescribed procedure;

 good faith of the defaulting party by
immediately paying within a obligation of the defendant to the
reasonable time from the time of the
default;
 the existence of special or compelling
circumstances;
 the merits of the case;
 a cause not entirely attributable to the
fault or negligence of the party
favored by the suspension of the
rules;
 a lack of any showing that the review
sought is merely frivolous and
dilatory;
 the other party will not be unjustly
prejudiced thereby;
 fraud, accident, mistake or excusable
negligence without the appellant's
fault;
 peculiar, legal and equitable
circumstances attendant to each case;
 in the name of substantial justice and
fair play;
 importance of the issues involved; and
 exercise of sound discretion by the
judge, guided by all the attendant
circumstances;
Thus, there should be an effort, on the part of
the party invoking liberality, to advance a
reasonable or meritorious explanation for
his/her failure to comply with the rules. (St.
Louis University, Inc. vs. Cobarrubias. Supra)
3.B. CAUSE OF ACTION
3.B.1. Meaning of Cause Of Action
A cause of action is the act or omission by
which a party violates the rights of another.
(Sec. 2, Rule 2)
Elements of a Cause of Action
1. a right in favor of the plaintiff by
whatever means and under whatever
law it arises or is created;
2. an obligation on the part of the named
defendant to respect or not to violate
such right; and
3. An act or omission on the part of such
defendant violative of the right of the
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plaintiff or constituting a breach of the
plaintiff. (PLDT vs. Pingol, G.R. No. 182622
September 8, 2010)
 If the allegations of the complaint do not
aver the concurrence of these elements,
the complaint becomes vulnerable to a
motion to dismiss on the ground of failure
to state a cause of action. (Macaslang vs
Zamora, G.R. No. 156375, May 30, 2011)
 Breach of contract as cause of action.
 Breach of contract gives rise to a cause of
action for specific performance or for
rescission. A suit for such breach is not
capable of pecuniary estimation; hence,
the assessed value of the real estate,
subject of the said action, should not be
considered in computing the filing fees.
(Cabutihan vs. Land Center Construction, G.R.
No. 146594, June 10, 2002)
 A wife has no cause of action against the
paramour of her husband in a special
proceeding for administration of conjugal
property.
 A wife has no cause of action against the
paramour of her husband if the action is
for the administration of conjugal property
or for the accounting by the husband of
their properties or even on forfeiture
against the husband of property acquired
by the husband and the paramour.
(Relucio vs. Lopez, G.R. No. 138497, January
16, 2002)
3.B.2. Right of Action vs. Cause of Action
Definition
The remedial right or right to relief granted by
law to a party to institute an action against a
person who has committed a delict or wrong
against him.
Elements of Right of Action
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1. Existence of a cause of action or

compliance with all conditions precedent Failure to State a Cause of Action is a defect
to the bringing of the action; and or an insufficiency in the statement of the
2. Right to bring and maintain the action cause of action.
must be in the person instituting it.
Insufficiency of the allegations in the pleading,
Cause of Action vs Right of Action i.e., not all the elements of a particular cause
of action are alleged.
CAUSE OF ACTION RIGHT OF ACTION
Delict or wrongful act Right to relief granted Failure to State a Cause of Action vs.
or omission committed by law to a party to Lack of Cause of Action (Regalado, Remedial
by the defendant in institute an action Law Compendium, Volume I, Ninth Revised Ed.
violation of the primary against a person who (2005)
rights of the plaintiff. has committed a delict
or wrong against him.
Failure to State a Lack of Cause of
The reason for the The remedy afforded to
action. the aggrieved party.
Cause of Action Action
Refers to the Refers to a situation
The formal statement Right to litigate is given insufficiency of the where the evidence
of alleged facts. because of the pleading, and is a does not prove the
occurrence of the ground for dismissal. cause of action
alleged facts. alleged in the
Determined by facts Determined by pleading
alleged in the substantive law. Provided in Sec. 1(g) Provided in Sec. 5 of
complaint.
of Rule 16 Rule 10
Matter of procedure. Matter of right.
Remedy is to move Remedy is to file a
Not affected by Affected by affirmative
affirmative defense. defense. for dismissal of the demurrer to the
pleading evidence
may be raised at the may be raised at any
Doctrine of Exhaustion of Administrative earliest stages of an time after the
Remedies action questions of fact have
been resolved on the
General Rule: When the law provides for an basis of the
administrative remedy, relief must be sought stipulations,
by exhausting this remedy before the courts admissions, or
will act. evidence presented

Exceptions: 3.B.4. Test of the Sufficiency of a cause

1. Where the issue is purely legal;
2. If it will result in the nullification of claim
asserted;
3. If the act is patently illegal or performed
in excess of or without jurisdiction;
4. If the respondent acts as an alter ego of
the President, unless actually disapproved
by the latter;
5. There is urgency of judicial intervention;
6. If there was violation of right to due
process; or
7. If the administrative agency is stopped.
3.B.3. Failure to State a Cause of Action
Definition
of Action
The test of sufficiency of the facts alleged in a
complaint to constitute a cause of action is
whether, admitting the facts alleged, the court
could render a valid judgment upon the same
in accordance with the prayer of the petition
or complaint. X x x The inquiry is into the
sufficiency, not the veracity of the material
allegations in the complaint. (Lim Lazaro, vs.
Brewmaster International, G.R. No. 182779, August
23, 2010)
The truth or falsity of the allegations are
beside the point because the allegations in the
complaint are hypothetically admitted. (PNB vs.
CA, 291 SCRA 271,276)

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3.B.5. Splitting a Single Cause of Action
Definition
There is a splitting of a single cause of action
when two or more suits are instituted on the
basis of the same cause of action. (Sec. 4, Rule
2).
It is the act of dividing one cause of action
into different parts and making each part
subject of a separate complaint (Bachrach vs.
Icaringal, 68 Phil. 287)
Note: Applies not only to complaints but
also to counterclaims and cross-claims.
(Riano, Fundamentals of Civil Procedure' 2005
Ed)
Purpose of Prohibition
Their splitting of action violates the policy
against multiplicity of suits, whose primary
objective was to avoid unduly burdening the
dockets of the courts. (Chu vs. Sps. Cunanan,
G.R. No. 156185, September 12, 2011)
Examples of splitting a single cause of
action
In a forcible entry case, the real issue is the
physical possession of the property. The
question of damages is merely secondary or
incidental, so much so that the amount
thereof does not affect the jurisdiction of the
court. The unlawful act of deforciant in taking
possession of a piece of land by means of
force and intimidation against the rights of the
party actually in possession thereof is a delict
or wrong, or cause of action that gives rise to
2 remedies- recovery of possession ad
recovery of damages arising from the loss of
possession, BUT only to one action. (Riano,
supra)
To sue for ejectment and to subsequently sue
for damages arising from the same act of the
defendant. (ibid)
One Suit for a Single Cause of Action (Sec.
3, Rule 2)
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This rule applies even when several rights,
belonging to one person, are violated.
All such rights violated, belonging to the same
person, should be alleged in a single
complaint. Otherwise, they are barred forever.
 The singleness of a cause of action lies in
the singleness of the- delict or wrong
violating the rights of one person. X x x
No man shall be twice vexed for one and
the same cause (Joseph vs. Bautista vs. G.R.
No. L-41423 February 23, 1989)
Tests to ascertain whether two suits
relate to a single or common cause of
action
a. Whether the same evidence would
support and sustain both the first and
second causes of action (also known as
―same evidence test‖);
b. Whether the defenses in one case may be
used to substantiate the complaint in the
other;
c. Whether the cause of action in the second
case existed at the time of the filing of the
first complaint (Umale vs. Canoga Park
Development Corporation, 654 SCRA 155,
162).
Effect of Splitting a Single Cause of
Action
The filing of one suit or a judgment upon the
merits on any one suit is a ground for the
dismissal of the others. (Sections 4, Rule 2)
Remedies available against splitting a single
cause of action:
1. File a motion to dismiss
a. If the first complaint is still pending,
said motion shall be on the ground
of LITIS PENDENTIA.
b. If any of the complaints is terminated
by final judgment, the motion to
dismiss shall be on the ground of
RES JUDICATA. (Sec 1[f], Rule 16).
2. File an answer, alleging either of the
above-cited grounds as affirmative
defense.
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Rules in case of divisible contracts
General Rule: A judgment for any single
breach of a continuing contract is not a bar to
a suit for a subsequent breach.
The filing of a complaint under divisible
contract covers all the previous ones in one
cause of action.
Exception:
Doctrine of Anticipatory Breach– Even if
the contract is divisible in its performance and
the future periodic deliveries are not yet due,
if the obligor has already manifested his
unqualified and positive refusal to comply with
his future periodic obligation, the contract is
entire and the breach total. Hence, there can
only be one action for damages. (Blossom and
Co. vs. Manila Gas Corp., 55 Phil 226).
3.B.6. Joinder and Misjoinder of Causes
of Action
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. (Sec. 5, Rule 2).
When Allowed:
1. Joinder of Causes of Action is subject to
the following condition- JSDM
2. The party joining the causes of action
must comply with the rules on Joinder
of parties;
3. The joinder shall not include Special civil
actions or actions governed by special
rules;
4. 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 one of
the causes of action fall within the
jurisdiction of said court and the venue
lies therein;
5. Where the claims in the causes of action
are principally for the recovery of
Money, the aggregate amount claimed
32 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
shall be the test of jurisdiction. (Section
5, Rule 2)
Totality Rule
Where the claims in all the causes of action
are principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction (irrespective of which causes of
action arose out of the same or different
transaction).
When Totality Rule Applies
In actions where the jurisdiction of the court is
dependent on the amount involved.
The test of jurisdiction shall be the aggregate
sum of all the money demands, exclusive of
interest and costs, irrespective of whether or
not the separate claims are owned by or due
to different parties. If any demand is for
damages in a civil action, the amount thereof
must be alleged.
In cases where there are two or more
plaintiffs having separate causes of action
against two or more defendants joined in a
complaint.
In cases where a plaintiff has separate causes
of action against two or more defendants
joined in a complaint.
Note: For the Totality Rule to apply in cases
provided for under (b) and (c), it is necessary
that:
1. The causes of action arose out of the
same transactions or series of
transactions; and
2. There is a common question of law or
fact.
An instance where joinder of ordinary
civil action and special action is allowed.
To begin with, petitioner could have joined
together all his allegations of error in one
petition for review under Rule 45 of the 1997
Rules of Civil Procedure since only questions
of law are raised in the instant case. At any
rate, there is nothing irregular in joining both
petitions for review (Rule 45) and certiorari
(Rule 65) in one pleading for purposes of

resolving the issues raised by petitioner G & S.
This procedural step may even avoid
inconsistency of rulings which might result in
case the writ of preliminary injunction is
validated but the civil case from which the writ
emanated is ordered dismissed. Although a
petition for review under Rule 45 is an appeal
process while a petition for certiorari under
Rule 65 is an original action and the rule is
that joinder of causes of action shall not
include special civil actions governed by
special rules, the conceptual and procedural
differences between them are overshadowed
by the more significant probability of divergent
rulings in case the two (2) petitions are not
joined which in the end would only cause
difficulties in determining which of the
conflicting decisions should be enforced. (G &
S Transport Corporation vs. Court of Appeals, G.R.
No. 120287, May 28, 2002)
SPLITTING OF CAUSE JOINDER OF
OF ACTION CAUSE OF ACTION
There is a single cause of Contemplates
action several causes of
action
PROHIBITED, as it ENCOURAGED, as it
causes multiplicity of minimizes
suits and double vexation multiplicity of suits
on the part of the and inconvenience
defendant on the parties
Misjoinder of Causes of Action
This is not a ground for dismissal of an action
(Sec. 6, Rule 2).
Remedy
The court may drop the causes of action not
within its jurisdiction and retain the ones it
can handle, either motu proprio or upon
motion of the parties.
There is no sanction against non-joinder of
separate causes of action since a plaintiff only
needs a single cause of action to maintain an
action.
3.C. PARTIES TO A CIVIL ACTION
There are two main categories of parties to a
civil action namely, the plaintiff and the
defendant (Section 1, Rule 3, Rules of Court).
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3.C.1. Real Parties-in-Interest;
Indispensable Parties; Representatives
as Parties; Necessary Parties; Indigent
Parties; Alternative Defendants
Real Party in Interest
Definition
Real party in interest is one who stands to be
benefited or injured by the judgment in the
suit, or the party entitled to the avails of the
suit.
 Every action must be prosecuted or
defended in the name of the real party in
interest, unless otherwise authorized by
law or the rules.
 Remedy if the suit is not in the name of or
against the real party in interest: Motion
to Dismiss on the ground that the
complaint states no cause of action.
 Remedy if one party in the suit is not a
real party in interest:
1. Upon motion of a party, the court may
drop or add a party by order; or
2. Upon its own initiative, the court
may drop the name of a misjoined
party.
3. This may be done at any stage of the
proceeding.
 Interest within the meaning of the Rules
of Court means material interest or an
interest in issue to be affected by the
decree or judgment of the case, as
distinguished from mere curiosity about
the question involved. A real party in
interest is the party who, by the
substantive law, has the right sought to
be enforced. (Ang vs. Sps Ang, G.R. No.
186993, August 22, 2012)
Classification of parties in interest
Indispensable Parties
An indispensable party is a party in interest
without whom no final determination can be
had of an action, and who shall be joined
either as plaintiffs or defendants.
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The joinder of indispensable parties is in court. (CHINA BANK vs. Oliver, G.R. No.
mandatory. Thus, without the presence of 135796, October 3, 2002)
indispensable parties to a suit or proceeding,
judgment of a court cannot attain real finality. Necessary parties
The absence of an indispensable party renders
all subsequent actions of the court null and Necessary Parties are those who are not
void for want of authority to act, not only as indispensable but ought to be parties if
to the absent parties but even as to those complete relief is to be accorded to those
present. (LOTTE PHIL. CO., INC. vs. Dela Cruz already parties, or for a complete
etl.al., G.R. No. 166302. July 28, 2005) determination or settlement of the claim
subject of the action. (Sec. 8, Rule 3)
 The Court clarified x x x that the failure to
implead indispensable parties is a curable  Solidarity does not make a party
error. (PACAÑA-CONTRERAS vs. Rovila Water indispensable. Article 1216 of the Civil
Supply, G.R. No. 168979, December 2, 2013). Code says that the creditor may proceed
The court, either motu proprio or upon the against anyone of the solidary debtors or
motion of a party, may order the inclusion some or all of them simultaneously. (De
of the indispensable party or give the Castro vs. CA, G.R. No. 115838. July 18,
plaintiff opportunity to amend his 2002)
complaint in order to include indispensable
parties. If the plaintiff to whom the order  Both indispensable and necessary parties
to include the indispensable party is are considered as real parties in interest,
directed refuses to comply with the order since both classes of parties stand to be
of the court, the complaint may be benefited or injured by the judgment of
dismissed upon motion of the defendant the suit." (PACAÑA-CONTRERAS, supra)
or upon the court's own motion. (NAVARRO
vs. ESCOBIDO, G.R. No. 153788, November INDISPENSABLE
NECESSARY PARTIES
27, 2009).The operative act that would PARTIES
lead to the dismissal of the case would be The action cannot The action can proceed
the refusal to comply with the directive of proceed unless they even in the absence of
are joined. Their some necessary parties.
the court for the joinder of an
presence issine qua
indispensable party to the case. (Nocom v. non for the exercise of
Camerino, et al., G.R. No. 182984, February judicial power.
10, 2009). Likewise, jurisprudence on the No valid judgment if Case may be determined
Federal Rules of Procedure, x x x allows indispensable party is in court even if a
the joinder of indispensable parties even not joined. necessary party is not
after judgment has been entered if such is joined but the judgment
needed to afford the moving party full therein will not resolve
relief. Mere delay in filing the joinder the entire controversy.
motion does not necessarily result in the They are those with They are those whose
such an interest in the interests are so far
waiver of the right as long as the delay is
controversy that a separable that a final
excusable. X x x The Court has the power final decree would decree can be made in
to avoid delay in the disposition of this necessarily affect their their absence without
case, and to order its amendment in order rights. affecting them.
to implead an indispensable party.
(PACAÑA-CONTRERAS, supra) Representative party

 A party is not indispensable to the suit if Representative party is someone acting in a

his interest in the controversy or subject
matter is distinct and divisible from the
interest of the other parties and will not
necessarily be prejudiced by a judgment
which does complete justice to the parties
fiduciary capacity for or in behalf of the
principal or beneficiary.
Who May Be Made a Representative?
 Trustee of an express trust.
 Guardian

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 Executor or Administrator; or
 Any party authorized by law or by the
Rules of Court.
 Minor or incompetent persons may
sue or be sued but with the assistance
of his father, mother, guardian, or if
none, a guardian ad litem. (Sec. 5, Rule
3)
 A person need not be judicially
declared incompetent in order that the
court may appoint a guardian ad
litem. It is enough that he be alleged
to be incompetent.
 In case of supervening incapacity or
incompetency of a party, the action
shall continue to be prosecuted by or
against him personally and not
through his representative, since he
continues to be the real party in
interest although assisted by his
guardian.
 An agent may sue or be sued without
joining the principal if he acted:
 In his own name, and
 For the benefit of an undisclosed
principal.
Exception: When the contract involves things
belonging to the principal (Sec. 3, Rule 3)
The right of choice as to venue of the plaintiff-
non-resident does not apply to his
representative
To construe the express requirement of
residence under the rules on venue as
applicable to the attorney-in-fact of the
plaintiff would abrogate the meaning of a ―real
party in interest‖, as defined in Section 2 of
Rule 3 of the 1997 Rules of Court vis-à-vis
Section 3 of the same Rule. X x x There is
nothing therein that expressly allows, much
less implies that an action may be filed in the
city or municipality where either a
representative or an attorney-in-fact of a real
party in interest resides. Sec. 3 of Rule 3
merely provides that the name or names of
the person or persons being represented must
be included in the title of the case and such
person or persons shall be considered the real
party in interest. In other words. The principal
2018
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PURPLE NOTES
remains the true party to the case and not the
representative. (Ang vs. Sps Ang, supra)
Pro forma party
Required to be joined as a co-party in a suit
by or against another party, as may be
provided by the applicable substantive law or
procedural rule. (Sec. 4, Rule 3)
A nominal or pro forma party is one who is
joined as a plaintiff or defendant, not because
such party has any real interest in the subject
matter or because any relief is demanded, but
because the technical rules of pleadings
require the presence of such party on the
record.
General Rule: Spouses should sue and be
sued together as they are both administrators
of their community property or conjugal
partnership property.
Exception: Those provided by law:
Petition for receivership; for judicial separation
of property; for authority to be the sole
administrator of the absolute community;
when a spouse without just cause abandons
the other or fails to comply with his or her
obligations to the family with respect to
marital, parental or property relations (Article
101 and 128, Family Code)
Actions involving the mortgage, encumbrance,
alienation or other disposal of a spouse‘s
exclusive property (Article 111, Family Code)
Actions involving the property of a spouse
under the regime of separation of property
(Article 145, Family Code)
Remedy if there is failure to implead one of
the spouses: Amendment of the complaint.
Quasi-Parties
Are those in whose behalf a class or
representative suit is brought. (Sec. 12, Rule 3)
Indigent Party
Party who has no money or property sufficient
and available for food, shelter and basic
necessities for himself and his family. (Sec. 21,
Rule 3)
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To litigate as an indigent party, authority may
be granted upon an ex parte application and
hearing. However, it may be contested to at
any time before judgment is rendered.
Authority to litigate as an indigent shall
include an exemption:
1. From the payment of docket fees, and
2. From the payment of transcript of
stenographic notes.
Alternative Defendant
Party sued, as a substitute of another, when
the plaintiff is uncertain of whom to sue,
although a right to relief against him may be
inconsistent with another. (Sec. 13, Rule 3)
Defendants with unknown identity – after
knowing identity, amend complaint to indicate
correct name of defendant. (Sec. 14, Rule 3)
Plaintiffs
One who have an interest in the subject
matter of the action or in obtaining the relief
demanded.
An unwilling co-plaintiff shall be made a
defendant and the reason therefore shall be
stated in the complaint (Sec. 10, Rule 3).
Defendants
Those persons who claim an interest in the
controversy or the subject thereof adverse to
the plaintiff or who ordinarily should be joined
as plaintiffs but who do not consent thereto,
the reason therefore being stated in the
complaint.
 Before a party may be considered as
unwilling plaintiff, it must be shown that
said party is made aware of the filing of
the complaint.
 It is true that an unwilling party plaintiff
may be joined as a defendant but this
must be set out at the inception of the
complaint. Even if, for the sake of
argument, that this joinder may be made
via an amendment, the allegations of the
36 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
complaint do not clearly indicate that the
case involves a party who refuses to give
her consent to be joined as a plaintiff. As
revealed in open court during the hearing
on the incidents, the plaintiff Encarnacion
Cleaofas Vda. de Biglang Awa has not
been made aware at all of the filing of the
complaint and of the reasons therefore. It
may not therefore be correctly said that
she was an unwilling co-plaintiff. (RTC
decision in Biglang-awa vs. Philippine Trust
Company, G.R. No. 158998, March 28, 2008)
3.C.2. Compulsory and Permissive
Joinder of Parties
General Rule: Permissive. (Section 6, Rule 3,
Rules of Court)
Exception: Compulsory only when parties
involved are indispensable parties. (Section 7,
Rule 3, Rules of Court)
Exceptions to the Exception
1. Class suits, where it would be
impractical to include all the names of
the members of the class in the action.
2. When the inclusion of an indispensable
party is merely a formality.
Examples
 Co-owners are not indispensable parties in
case one of them appoints an agent as
their obligation is solidary.
 Art. 1915. If two or more persons
have appointed an agent for a
common transaction or undertaking,
they shall be solidarily liable to the
agent for all the consequences of the
agency.―The rule in this article applies
even when the appointments were
made by the principals in separate
acts, provided that they are for the
same transaction. The solidarity
arises from the common interest of
the principals, and not from the act of
constituting the agency. By virtue of
this solidarity, the agent can recover
from any principal the whole
compensation and indemnity owing to
him by the others. The parties,
however, may, by express agreement,

negate this solidary responsibility.
The solidarity does not disappear by
the mere partition effected by the
principals after the accomplishment of
the agency. X x x When the law
expressly provides for solidarity of the
obligation, as in the liability of co-
principals in a contract of agency,
each obligor may be compelled to pay
the entire obligation. The agent may
recover the whole compensation from
any one of the co-principals. (De
Castro vs. CA, G.R. No. 115838. July 18,
2002, supra)
 Co-owners are neither indispensable nor
necessary parties in case one of them
brings an action for recovery of co-owned
property
 In suits to recover properties, all co-
owners are real parties in interest.
However, pursuant to Article 487 of the
Civil Code and relevant jurisprudence, any
one of them may bring an action, any kind
of action, for the recovery of co-owned
properties. Therefore, only one of the co-
owners, namely the co-owner who filed
the suit for the recovery of the co-owned
property, is an indispensable party
thereto. The other co-owners are not
indispensable parties. They are not even
necessary parties, for a complete relief
can be accorded in the suit even without
their participation, since the suit is
presumed to have been filed for the
benefit of all co-owners. (NAVARRO vs.
ESCOBIDO, supra)
Permissive joinder of parties
The rule on permissive joinder of parties
enunciates that parties can either be joined in
one single complaint or may themselves
maintain or be sued in separate suits.
Requisites:
1. The right to relief arose out of the same
transaction or series of transactions;
2. There is a question of law or fact
common to all the plaintiffs or
defendants; and
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3. Such joinder is not otherwise proscribed
by the provisions of the Rules of Court
on jurisdiction and venue. (Regalado,
F.D., Remedial Law Compendium, Volume 1,
p. 91)
Series of Transactions – separate dealings
with the parties but all of which dealings are
directly connected with the same type of
subject matter of the suit.
Parties can either be joined in one single
complaint or may themselves maintain or be
sued in separate suits.
The rule also applies to counterclaims.
3.C.3. Misjoinder and Non-Joinder of
Parties
Misjoinder and/or non-joinder of Parties is not
a ground for dismissal of the action (Sec. 11,
Rule 3).
Remedy when there is misjoinder: Motion to
Strike the names of the parties impleaded
(objection to be raised at the earliest
opportunity, i.e. the moment defect becomes
apparent; cannot be raised for the first time
on appeal).
A separate action should be brought against
the party misjoined.
Effect of non-joinder of indispensable
parties:
It renders all subsequent actions of the court
null and void for want of authority to act, not
only as to the parties absent but even as to
those present.
Effect of non-joinder of necessary
parties:
Non-joinder of necessary parties 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.
What should the pleader do if a
necessary party is not joined?
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He shall set forth the name of such necessary
party, if known, and the reason for the latter‘s
omission. (Sec. 9, Rule 3)
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.
Failure to comply with such order, without
justifiable cause, shall be deemed a waiver of
the claim against such party.
3.C.4 Class Suit
A suit brought by a number of persons
sufficiently numerous and representative so as
to fully protect the interests of all concerned,
who are so numerous that it is impracticable
to join all as parties, and the subject matter of
the controversy is one of common or general
interest to them.
 The subject matter of the complaint is of
common and general interest not just to
several, but to all citizens of the
Philippines. Consequently, since the
parties are so numerous, it, becomes
impracticable, if not totally impossible, to
bring all of them before the court. We
likewise declare that the plaintiffs therein
are numerous and representative enough
to ensure the full protection of all
concerned interests. Petitioners minors x x
x can, for themselves, for others of their
generation and for the succeeding
generations, file a class suit. Their
personality to sue in behalf of the
succeeding generations can only be based
on the concept of intergenerational
responsibility insofar as the right to a
balanced and healthful ecology is
concerned. (Oposa vs. Factoran, G.R. No.
101083 July 30, 1993)
Requisites of a class suit:
1. The subject matter is one of common or
general interest to many persons;
2. The persons are so numerous that it is
impracticable to join all of them as
parties;
3. The parties actually before the court are
sufficiently numerous and representative
as to fully protect the interests of all
concerned; and
38 CENTER FOR LEGAL EDUCATION AND RESEARCH
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4. The representatives sue or defend for the
benefit of all. (Sec. 12, Rule 3)
A class suit will not lie when the numerous
occupants of a parcel of land are sued for
ejectment from the land because their interest
is not common to all. The interest of each
defendant is only with respect to the portion
he claims and occupies (Sulo ng Bayan, Inc. vs
Araneta, 72 SCRA 347).
3.C.5 Suits Against Entities Without
Juridical Personality
Persons associated in an entity without
juridical personality may be sued under the
name by which they are generally or
commonly known, but they cannot sue under
such name.
Note: Summons to one of them is valid
service of summons to all of them (see rules
on Summons)
3.C.6 Effect of Death of a Party Litigant
Duty of Counsel
Whenever a party to a pending action dies,
and the claims not thereby extinguished, it
shall be the duty of the 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 this 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.
"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."
The court may order the opposing party
appoint an executor or administrator when:
The counsel for the deceased does not name
a legal representative; or
There is a representative named but he failed
to appear within the specified period (Sec. 16,
Rule 3)
 The death of a client immediately divests
the counsel of authority. (CARABEO vs.
Dingco, G.R. No. 190823, April 4, 2011)
 A formal substitution by heirs is not
necessary when they themselves
voluntarily appear.
 The rule on the substitution of parties was
crafted to protect every party‘s right to
due process. X x x No adjudication can be
made against the successor of the
deceased if the fundamental right to a day
in court is denied. This general rule
notwithstanding, a formal substitution by
heirs is not necessary when they
themselves voluntarily appear, participate
in the case, and present evidence in
defense of the deceased. These actions
negate any claim that the right to due
process was violated. X x x Strictly
speaking, the rule on the substitution by
heirs is not a matter of jurisdiction, but a
requirement of due process. Thus, when
due process is not violated, as when the
right of the representative or heir is
recognized and protected, noncompliance
or belated formal compliance with the
Rules cannot affect the validity of a
promulgated decision. Mere failure to
substitute for a deceased plaintiff is not a
sufficient ground to nullify a trial court‘s
decision. The alleging party must prove
that there was an undeniable violation of
due process. (SPS DE LA CRUZ vs. Joaquin,
G.R. No. 162788. July 28, 2005)
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Effect of 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. (Sec. 19, Rule 3)
 The substitution of parties in this case is
not mandatory but only permissive.
 A transferee pendente lite is a proper
party and not an indispensable party.
 If the transfer was effected before the
commencement of the suit, the transferee
must necessarily be a party to the case.
 But said party may file a third party
complaint and implead the transferor in
the action whenever the same is
necessary for the complete determination
of all the rights of the parties.
Actions that survive even against the
decedent‟s representative
1) Action to recover real and personal
property against the estate;
2) Action to enforce a lien thereon;
3) Action to recover for an injury to person
or property by reason of tort or delict
committed by the deceased. (Sec. 1, Rule
87)
Substitute defendant need not be
summoned.
Order or substitution shall be served upon the
parties to acquire jurisdiction over the
substitute.
If the action does not survive (like the purely
personal action of support, annulment of
marriage and legal separation), the court shall
simply dismiss the case.
When the action is for the recovery of money
arising from contract and the defendant dies
before entry of final judgment, the court shall
not dismiss the suit. It shall continue and his
legal representative or legal heir shall
substitute the deceased. If the plaintiff obtains
a favorable judgment, said judgment shall be
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enforced as a money claim against the estate 3.C.7. Distinction between real party in
of the deceased. (Sec. 20, Rule 3). interest and locus standi

Consequences of death or separation of Real Party In Locus Standi

a public officer who is sued in his official Interest
capacity and leaves office/ dies during The party who stands to Right of appearance in a
its pendency (Sec. 17, Rule 3) be benefited or injured court of justice on a
by the judgement in the given question.
suit or the party entitled
 The action may be continued and to the avails of the suit.
maintained by or against his successor if
within 30 days after said successor takes
The Doctrine of Locus Standi requires a
office or such time as may be granted by
litigant to have a material interest in the
the court, it is satisfactorily shown by any
outcome of a case. In private suits, locus
party that there is a substantial need for
standi requires a litigant to be a ―real party-in-
continuing or maintaining it and that the
interest‖. (Riano, Civil Procedure, 2014 Ed.)
successor adopts or continues or
threatens to adopt or continue the action
3.D. VENUE
of his predecessor.
 Before substitution, proper notice must be
Definition
given to the officer to be affected and
accorded an opportunity to be heard.
Place of trial or geographical location where
the action or proceeding should be brought.
Consequences of death of the defendant
before entry of final judgment in the
 The rules on venue, like other procedural
court upon an action for recovery of
rules, are designed to insure a just and
money arising from contract (Sec. 20, Rule
3)
orderly administration of justice or the
impartial and evenhanded determination
 The case shall not be dismissed, instead, of every action and proceeding. Obviously,
it will continue until entry of final this objective will not be attained if the
judgment. plaintiff is given unrestricted freedom to
 A favorable judgment obtained by the choose where to file the complaint or
plaintiff shall be enforced in a manner petition. (Mangila vs. Court of Appeals, G.R.
No. 125027, August 12, 2002)
especially provided for prosecuting claims
against the estate of a deceased person.
 In case the property of the deceased has 3.D.1.Venue vs. Jurisdiction
been attached, the writ of attachment will
not be dissolved but will entitle the
judgment-creditor to preference over Jurisdiction Distinguished from Venue
other creditors against the estate.
 When a party to a pending action dies and JURISDICTION VENUE
the claim is not extinguished, the Rules of The authority to hear The place where the
Court require a substitution of the and determine a case. case is to be instituted;
deceased. The procedure is specifically deals with locality.
governed by Sec.16 of Rule 3. A matter of A matter of procedural
substantive law. or adjective law.
 The Court has nullified not only trial
Conferred by law or May be conferred by the
proceedings conducted without the the Constitution and act or agreement of the
appearance of the legal representatives of cannot be otherwise parties.
the deceased, but also the resulting agreed upon by the
judgments. In those instances, the courts parties.
acquired no jurisdiction over the persons Cannot be waived; May be waived.
of the legal representatives or the heirs except jurisdiction over
upon whom no judgment was binding. the person.
Establishes a relation Establishes a relation

40 CENTER FOR LEGAL EDUCATION AND RESEARCH

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JURISDICTION VENUE
between the court and between the plaintiff 3.D.4. Venue of Actions Against Non-
the subject matter. and the defendant. Residents (Sec. 3, Rule 4)
Limitation on the Limitation on the court.
plaintiff. Non-Resident Defendant
Deals with substance. Matter of convenience. Venue of Not Found in
Courts may motu Courts may not motu Found in the
the Action the
proprio dismiss a case proprio dismiss a case Philippines
Philippines
for lack of jurisdiction. on ground of improper Residence of Personal Actions
venue. the Plaintiff Actions involving
personal status
Note: The parties may stipulate on the venue of the plaintiff
as long as the agreement is: Where the Real Actions Actions
a. in writing Property is involving any
b. made before the filing of the action, and Located property of the
c. exclusive as to the venue. said defendant
located in the
Philippines
3.D.2. Venue of Real Actions (Sec. 1, Rule
4)
Residence - the place where the party
The venue of real actions is the place where actually resides at the time of action; does not
the property involved, or a portion of it is mean permanent home or domicile.
situated.
 The rule on venue of real actions covers  The plaintiff in this action has no
actions pertaining to title or possession to residence in the Philippine Islands. Only
real property or interest therein. one of the parties to the action resides
 Venue if it involves property located at the here. There can be, therefore, no election
boundary of 2 places: File a case in either by plaintiff as to the place of trial. It must
place at the option of the plaintiff. be in the province where the defendant
 Venue if case involves 2 properties located resides. (Ang vs. Sps Ang, supra)
in 2 different places:
 If the properties are the object of the 3.D.5. When the Rules on Venue Do Not
same transaction: file it in any of the Apply (Sec. 4, Rule 4)
2 places.
 If the properties are the subject of 2 The Rules do not apply:
distinct transactions: separate actions a. In those cases where a specific rule or
should be filed in each place unless law provides otherwise, e.g. civil case
properly joined. for damages in case of libel Art. 360
RPC; or
 In case of forcible entry and unlawful b. Where the parties have validly agreed in
detainer, the action shall be commenced writing before the filing of the action on
and tried in the M.T.C. of the municipality the exclusive venue thereof. (Pacific
Consultants v. Schonfeld, Supra)
or city wherein the real property or a
portion thereof is situated.
3.D.6. Effects of Stipulations on Venue
3.D.3. Venue of Personal Actions
The settled rule on stipulations regarding
(Sec. 2, Rule 4) venue is that while they are considered valid
and enforceable, venue stipulations in a
The venue of personal actions is the place contract do not, as a rule, supersede the
where the plaintiff or any of the principal general rule set forth in Rule 4 of the Revised
plaintiffs or where the defendant or any of the Rules of Court in the absence of qualifying or
principal defendants reside, at the election of restrictive words x x x like "only," "solely,"
the plaintiff. "exclusively in this court," "in no other court

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save —," "particularly," "nowhere else Pleadings

but/except —," or words of equal import x x x.
They should be considered merely as an Pleadings are the written statements of the
agreement or additional forum, not as limiting respective claims and defenses of the parties
venue to the specified place. They are not submitted to the court for appropriate
exclusive but, rather permissive. If the judgment. (Sec. 1, Rule 6)
intention of the parties were to restrict venue,
there must be accompanying language clearly Pleading distinguished from Motion
and categorically expressing their purpose and
design that actions between them be litigated PLEADING MOTION
only at the place named by them. (Pacific
Consultants v. Schonfeld, 516 SCRA 210, 19 Feb A statement of the claims An application for relief
2007). and defenses, focusing other than by a pleading
on matters to be
included in the judgment
The court may declare an agreement on
General relief is prayed Particular relief is sought.
venue as contrary to public policy if the
for
stipulation unjustly denies a party a fair Pleadings are not Motion is a kind of
opportunity to file suit in the place motions. pleading.
designated by the rules. (Sweet Lines Inc. May be initiatory
vs. Teves, G.R. No. L-37750). Always filed before
judgment
 A third party complaint is ancillary to the
main action. Hence, it must yield to the 3.E.1. Kinds of pleadings
jurisdiction and venue of the main action
even if said third party complaint is based INTERPOSING A INTERPOSING A
on a separate agreement specifying a CLAIM DEFENSE
different venue. Includes: Includes:
1. Complaint 1. Answer
Improper venue 2. Counterclaim 2. Reply
3. Cross-claim
4. 3rd, 4th, 5th, etc.
General Rule: Although the venue is 5.Complaint-in-
technically improper, the venue will be intervention(Rule 19)
deemed proper if the defendant does not
object. Since venue is not a matter of
PLEADINGS TO BE FILED BYDIFFERENT
substantive law but is primarily for the
PARTIES
convenience of the parties, it would be up for
the defendant to question the venue. If he
PARTY PLEADING TO BE FILED
does not raise the issue of venue, the Court Plaintiff Complaint; Reply
has no authority to motu propio dismiss a case Defendant Answer; Counterclaim;
for improper venue. Cross-claim
3rd, 4th, etc Party Answer; Counterclaim;
Exception: In cases covered by summary Defendant Cross-claim
procedure, the court may dismiss a case Counter-claimant Answer; Counterclaim;
outright on any of the grounds apparent in the or Cross-claimant Cross-claim
complaint. This of course includes improper Intervenor Complaint-in-intervention;
venue. The dismissal here need not be Answer-in-intervention
preceded by a motion to dismiss because it
may be done by the court motu propio (Sec. 4, Case: Procedure for dismissed cases when re-
1991 Rules of Summary Procedure). filed; same as though it was initially lodged
3.E. RULES ON PLEADINGS and assigned to branch to which the original
case pertained.

 The procedure for dismissed cases when

re-filed is the same as though it was

42 CENTER FOR LEGAL EDUCATION AND RESEARCH


initially lodged, i.e., the filing of answer,
reply, answer to counter-claim, including
other foot-dragging maneuvers, except for
the rigmarole of raffling cases which is
dispensed with since the re-filed complaint
is automatically assigned to the branch to
which the original case pertained. A
complaint that is re-filed leads to the re-
enactment of past proceedings with the
concomitant full attention of the same trial
court exercising an immaculate slew of
jurisdiction and control over the case that
was previously dismissed, which in the
context of the instant case is a waste of
judicial time, capital and energy. (RCBC vs.
Magwin Marketing, G.R. No. 152878, May 5,
2003)
3.E.1.A. Complaint
Complaint is a pleading alleging the plaintiff‘s
cause/s of action (Sec. 3, Rule 6)
 It states the names and residences of the
plaintiff and defendant, together with the
ultimate facts constituting the cause of
action.
Ultimate Facts - the essential facts
constituting the plaintiff‘s cause of action.
Test of Sufficiency of the Facts (alleged in
the complaint): If upon admission or proof of
the facts being alleged, a judgment may
properly be given.
3.E.1.B. Answer
An answer is a pleading in which a defending
party sets forth his defenses (Sec. 4, Rule 6).
3.E.1.B.1. Negative defense
Negative defense involves specific denial of
the material facts alleged in the pleading of
the claimant essential to his cause of action
(Sec. 5[a], Rule 6).
General denial will be deemed an admission of
the averments in the complaint.
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3.E.1.B.2. Negative pregnant
Negative Pregnant is a denial which is
equivalent to an admission
An admission in avoidance which does not
qualify as a specific denial.
 A denial pregnant with the admission of
the substantial facts in the pleading
responded to which are not squarely
denied. It was in effect an admission of
the averments it was directed at.34 Stated
otherwise, a negative pregnant is a form
of negative expression which carries with
it an affirmation or at least an implication
of some kind favorable to the adverse
party. It is a denial pregnant with an
admission of the substantial facts alleged
in the pleading. Where a fact is alleged
with qualifying or modifying language and
the words of the allegation as so qualified
or modified are literally denied, has been
held that the qualifying circumstances
alone are denied while the fact itself is
admitted. (Republic of the Philippines vs.
Sandiganbayan, G.R. No. 152154, July 15,
2003)
 Effect of negative pregnant- admission of
the averments it was directed at and so
there is a failure to raise any genuine
issue of fact in their pleadings. Thus, on
motion x x x, summary judgment should
take place as a matter of right. (ibid)
3.E.1.B.3. Affirmative defense
Affirmative defense is an allegation of a new
matter, which, while hypothetically admitting
the material allegations in the pleading would
nevertheless prevent or bar recovery by him.
Any of the grounds for a Motion to Dismiss
may be pleaded as an affirmative defense.
3.E.1.C. Counterclaims
Alleges any claim, which a defending party
may have against an opposing party.
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Counterclaim alleges any claim which a
defending party may have against an opposing
party. (pleading interposing a claim)
A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is NOT part of the answer. It is a
distinct and independent cause of action.
Upon its filing, the same proceedings are had
as in the original complaint. For this reason, it
must be answered within 10 days from
service.
3.E.1.C. 1. Compulsory Counterclaim
Requisites of compulsory counterclaim:
 It must arise out of, or be necessarily
connected with the transaction or
occurrence that is the subject matter of
the opposing party or co-party‘s claim.
 It does not require for its adjudication the
presence of third parties over whom the
court cannot acquire jurisdiction; and
 It must be within the jurisdiction of the
court and is cognizable by the regular
courts of justice.
“Compelling Test of Compulsoriness” -
requires a logical relationship between the
claim and the counterclaim, that is, where
conducting separate trials of the respective
claims of the parties would entail a substantial
duplication of effort and time of the parties
and of the court. (Quintanilla v. C.A., 279 SCRA
397)
 If the counterclaim in excess of the
jurisdiction of the court is interposed in
the same action and the court finds both
plaintiff's complaint and defendant's
counterclaim (for an amount exceeding
said court's jurisdiction) meritorious, it will
simply dismiss the complaint on the
ground that defendant has a bigger credit.
Since defendant still has to institute a
separate action for the remaining balance
of his counterclaim, the previous litigation
did not really settle all related
controversies (Calo vs. Ajax International,
Inc., 22 SCRA 996)
A compulsory counterclaim cannot be the
subject of a separate action but it should
instead be asserted in the same suit involving
44 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
the same transaction or occurrence, which
gave rise to it.
Test to determine whether a
counterclaim is compulsory or not:
1) Are the issues of fact or law raised by the
claim and the counterclaim largely the
same?
2) Would res judicata bar a subsequent suit
on defendant‘s claim absent the
compulsory counterclaim rule?
3) Will substantially the same evidence
support or refute plaintiff‘s claim as well
as the defendant‘s counterclaim?
4) Is there any logical relation between the
claim and the counterclaim?
Affirmative answers to the above queries
indicate the existence of a compulsory
counterclaim. (Financial Building vs. Forbes Park,
338 SCRA 346, 17 Aug 2000)
Rules on Counterclaim:
Doctrine of Ancillary Jurisdiction
The counterclaim may be considered
compulsory regardless of the amount.
Filing of a motion to dismiss and settling up a
compulsory counterclaim are incompatible
remedies. If both are availed and in the event
the motion to dismiss is meritorious, he will
lose his counterclaim. Thus, if he opts to set
up his counterclaim, he may still plead his
ground for dismissal as an affirmative defense
in his answer.
A plaintiff who fails or chooses not to answer
a compulsory counterclaim may not be
declared in default, principally because the
issues raised in the counterclaim are deemed
automatically joined by the allegations of the
complaint (Gojo vs. Goyala, 35 SCRA 557)
3.E.1.C.2. Permissive Counterclaim
COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM
Arises out of or is Does not arise out of
necessarily connected or is necessarily
with the transaction connected with the
that is the subject subject matter of the
matter of the opposing opposing party‘s claim
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COMPULSORY PERMISSIVE merits, unless otherwise declared by the

COUNTERCLAIM COUNTERCLAIM court. The dismissal of the main action does
party‘s claim not carry with it the dismissal of the
Does not require for its It may require for its counterclaim (Sec. 6, Rule 16).
adjudication the adjudication the
presence of third presence of third
Another situation is contemplated in Section 6
parties of whom the parties over whom the
court cannot acquire court cannot acquire of Rule 16. Here, the defendant does not file a
jurisdiction jurisdiction motion to dismiss. Instead, he files an answer
Need not be Must be answered, and utilizes certain grounds for a motion to
answered; no default otherwise there can be dismiss as affirmative defenses. Included in
an order of default the answer is a counterclaim. He then asks for
This is not an initiatory This is an initiatory a preliminary hearing on the affirmative
pleading; hence, there pleading and defenses set up, which is granted by the
is no need to pay the therefore, there is a court. During the hearing on the affirmative
docket fees. need to pay the docket defenses, the court decides to dismiss the
fee.
complaint. If the complaint is dismissed, the
Barred if not set up in Not barred even if not
the action except set up in the action. counterclaim, compulsory or permissive, is not
after-acquired The defendant can dismissed. (Riano, Civil Procedure, 2014 Ed.)
counterclaim. institute another action
for recovery. 3.E.1.D. Cross-claim

3.E.1.C.2. Effect on the counterclaim
when the complaint is dismissed
If a counterclaim has already been pleaded by
the defendant prior to the service upon him of
the plaintiff‘s motion to dismiss, and the court
grants the said motion to dismiss, the
dismissal shall be limited to the complaint
(Sec. 2, Rule 17). The dismissal upon motion of
plaintiff shall be without prejudice to the right
of the defendant to prosecute the
counterclaim. The defendant if he so desires
may prosecute his counterclaim either in a
separate action or in the same action. Should
he choose to have his counterclaim resolved in
the same action, he must notify the court of
his preference within 15 days from notice of
the plaintiff‘s motion to dismiss. Should he opt
to prosecute his counterclaim in a separate
action, the court should render the
corresponding order granting and reserving
his right to prosecute his claim in a separate
complaint. A class suit shall not be dismissed
or compromised without the approval of the
court.
The dismissal of the complaint under Sec. 3,
Rule 17 (due to fault of plaintiff) is without
prejudice to the right of the defendant to
prosecute his counterclaim in the same action
or in a separate action. This dismissal shall
have the effect of an adjudication upon the
Cross-claim is any claim by one party against
a co-party arising out of the transaction or
occurrence that is the subject matter either of
the original action or of a counterclaim
therein.
General Rule: It is barred if not set up in the
action. (Sec. 6, Rule 6)
Exceptions:
 When it is outside the jurisdiction of the
court; or
 If the court cannot acquire jurisdiction
over third parties whose presence is
necessary for the adjudication of the
cross-claim.
 The dismissal of a complaint carries with it
the dismissal of a cross-claim, which is
purely defensive but not a cross-claim
seeking an affirmative relief.
Note: The cross-claim that shall be barred if
not asserted is the cross claim already existing
at the time the answer is filed, not the cross-
claim that may mature or may be acquired
after service of the answer. As to the latter,
Sec 9 of Rule 11 declares that it may, by leave
of court, be set up by way of a supplemental
pleading.
3.E.1.E. Third (Fourth, etc.) party
complaint

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Third, 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 who
is called the third-party defendant, for
contribution, indemnity, subrogation, or any
other relief, in respect of his opponent‘s claim.
(Sec. 11, Rule 6).
Test to determine if third party claim is
in respect of plaintiff‟s claim:
1) Need not arise out of or entirely
dependent on main action it is sufficient
that it must be in respect of the
opponent‘s claim.
2) Third party-defendant would be liable to
the plaintiff or to the defendant for all or
part of the claim against original
defendant.
3) Third party defendant may assert any
defenses which third party plaintiff has or
may have to the plaintiff‘s claim.
Judgment on a third-party complaint may
become final and executory without waiting
for the determination of the main case.
An order disallowing a third-party complaint is
appealable since it would finally dispose of
defendant‘s right to implead the third party.
 The purpose of Section 11, Rule 6 of the
Rules of Court is to permit a defendant to
assert an independent claim against a
third-party which he, otherwise, would
assert in another action, thus preventing
multiplicity of suits. All the rights of the
parties concerned would then be
adjudicated in one proceeding. This is a
rule of procedure and does not create a
substantial right. Neither does it abridge,
enlarge, or nullify the substantial rights of
any litigant. This right to file a third-party
complaint against a third-party rests in the
discretion of the trial court. The third-
party complaint is actually independent of,
separate and distinct from the plaintiff‘s
complaint, such that were it not for the
rule, it would have to be filed separately
from the original complaint.
A prerequisite to the exercise of such right is
that some substantive basis for a third-party
claim be found to exist, whether the basis be
46 CENTER FOR LEGAL EDUCATION AND RESEARCH
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one of indemnity, subrogation, contribution or
other substantive right. The bringing of a
third-party defendant is proper if he would be
liable to the plaintiff or to the defendant or
both for all or part of the plaintiff‘s claim
against the original defendant, although the
third-party defendant‘s liability arises out of
another transaction. The defendant may
implead another as third-party defendant
a) on an allegation of liability of the latter to
the defendant for contribution, indemnity,
subrogation or any other relief;
b) on the ground of direct liability of the
third-party defendant to the plaintiff; or
c) the liability of the third-party defendant to
both the plaintiff and the defendant.
There must be a causal connection
between the claim of the plaintiff in his
complaint and a claim for contribution,
indemnity or other relief of the defendant
against the third-party defendant.
Causal Connection Test: Causal connection
between the claim of the plaintiff in his
complaint and a claim for contribution,
indemnity or other relief of the defendant
against the third-party defendant:
1) whether it arises out of the same
transaction on which the plaintiff‘s claim is
based; or whether the third-party claim,
although arising out of another or
different contract or transaction, is
connected with the plaintiff‘s claim;
2) whether the third-party defendant would
be liable to the plaintiff or to the
defendant for all or part of the plaintiff‘s
claim against the original defendant,
although the third-party defendant‘s
liability arises out of another transaction;
and
3) whether the third-party defendant may
assert any defenses which the third-party
plaintiff has or may have to the plaintiff‘s
claim.
 It goes without saying that the denial of
the petitioner‘s motion with leave to file a
third-party complaint against Becthel is
without prejudice to its right to file a
separate complaint against the latter.
(Asian Construction and Development
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Corporation vs. CA, G.R. No. 160242, May 17,  If the answer is based on an actionable
2005) document. The genuineness and due
execution of an actionable document shall
THIRD PARTY be deemed admitted unless specifically
CROSS CLAIM
COMPLAINT denied under oath. (Sec. 8, Rule 8)
Against a person not Against a co- party
a party to the action
 A party cannot, in his reply, amend his
Third party is not yet Cross defendant is a co-
impleaded. party. cause of action nor introduce new causes
Must be pertaining to Must arise out of the of action. Such shall be set forth in an
the opponent‘s transaction that is the amended or supplemental complaint.
(plaintiff) claim subject matter of the
original action or of the 3.E.2. Pleadings Allowed in Small Claim
counterclaim therein Cases and Cases Covered by the Rules
on Summary Procedure
THIRD PARTY COMPLAINT IN
COMPLAINT INTERVENTION  The only pleadings allowed to be filed are
Brings into the action Same the Complaints, Compulsory Counterclaims
a third person not
and Cross Claims pleaded in the answer,
originally a party
and the answer thereto.
Initiative is with the Initiative is with a non-
person already a party who seeks to join
party to the action. the action. Scope: Civil Case

3.E.1.F. Complaint-in-intervention  All cases of Forcible Entry and Unlawful

Complaint in intervention is a legal proceeding
by which a person who is not a party to the
action is permitted by the court to become a
party by intervening in appending action after
meeting the conditions and requirements set
by the Rules of court. This third person who
intervenes is one who is not originally
impleaded in the action. (First Philippine
Holdings Corp. vs. Sandiganbayan, 253 SCRA 30;
Rule 19).
3.E.1.G. Reply
Reply is the pleading-response of the plaintiff
to the defendant‘s answer, the office 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.
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)
 All other cases, except probate
proceedings, where the total amount of
the plaintiff‗s claim does not exceed one
hundred thousand pesos (P100, 000) or
two hundred thousand pesos (P200,000)
in metropolitan Manila, exclusive of
interest and costs.
Note: All pleadings shall be verified
3.E.3. Parts of a Pleading
3.E.3.A. Caption (Sec. 1, Rule 7)
The caption sets forth the following:

General Rule: A reply is not mandatory. 1) Name of the court.

2) Title of the action; and
Exceptions: 3) The docket number, if assigned.

 If new matters are alleged in the answer, Body (Sec. 2, Rule 7)

a reply is necessary; otherwise, such new
matters are deemed controverted. The body of the pleading sets forth the
following:
1) Designation of the pleading;

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ARELLANO UNIVERSITY SCHOOL OF LAW
2) Allegations of the party‘s claims or
defenses;
3) Relief prayed for; and
4) Date of the pleading.
 It is not the caption of the pleading but
the allegations therein which determine
the nature of the action and the court
shall grant relief warranted by the
allegations and proof even if no such relief
is prayed for (Solid Homes, Inc. vs. Court of
Appeals, 271 SCRA 157).
3.E.3.B. Signature and address
Every pleading must be signed by the party or
by the counsel representing him stating the
address which should not be a post office box
(Sec.3, Rule 7)
Consequence of an unsigned pleading:
It produces no legal effect. Such a pleading
may be stricken out as sham and false, and
the action may proceed as though the
pleading has not been served. However, the
court is authorized to allow the pleader to
correct the deficiency if the pleader shows to
the satisfaction of the court, that the failure to
sign the pleading was due to mere
inadvertence and not to delay the proceedings
(Sec 3, Rule 7).
3.E.3.C. Verification and Certification
against Forum Shopping
Verification
An affidavit that the affiant has read the
pleading and that the allegations therein are
true and correct of his personal knowledge or
based on authentic records.
A pleading need not be under oath. This
means that a pleading need not be verified
except when verification is required by law or
by a particular rule.
Two modes of verification
 A reading of the above-quoted Section 4
of Rule 7 indicates that a pleading may be
verified under either of the two given
modes or under both. The veracity of the
48 CENTER FOR LEGAL EDUCATION AND RESEARCH
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allegations in a pleading may be affirmed
based on either one‘s own personal
knowledge or on authentic records, or
both, as warranted. The use of the
preposition "or" connotes that either
source qualifies as a sufficient basis for
verification and, needless to state, the
concurrence of both sources is more than
sufficient. Bearing both a disjunctive and
conjunctive sense, this parallel legal
signification avoids a construction that will
exclude the combination of the
alternatives or bar the efficacy of any one
of the alternatives standing alone. (Hun
Hyung Park vs. Eung Won Choi, G.R. No.
165496, February 12, 2007)
When verification is required:
1) Answer contesting the genuineness of an
actionable document.
2) Petition for Relief from Judgment.
3) Complaint with application for Preliminary
Injunction.
4) Complaint for Replevin.
5) Certiorari, Prohibition and Mandamus.
6) Pleadings under the Rules on Summary
Procedure.
 Pleading required to be verified which
contains a verification based on
―knowledge, information and belief‖
Note: Use of the phrase ―true of his own
knowledge‖ is not required if such is logically
inferable, especially if plaintiff is a party and it
does not appear that he is verifying upon
information and belief.
 A pleading without the required
verification has no legal effect, but
amending the pleading with the required
verification may cure the same.
 The absence of verification or the non-
compliance with the verification
requirement does not necessarily render
the pleading defective. It is only a formal
and not a jurisdictional requirement. The
requirement is a condition affecting only
the form of the pleading (Benguet
Corporation vs. Cordillera Caraballo Mission,
Inc., 469 SCRA 381) and non-compliance
therewith does not necessarily render it

fatally defective (Sarmiento vs. Zaratan, GR
No. 167471, February 5, 2007).
 Any person who personally knew the facts
may sign the verification; but only the
plaintiff or the principal parties, not the
counsel, may execute the certification of
non-forum shopping.
 The petitioner in this case is the
Commission on Appointments, a must involve the same transaction, same
government entity created by the
Constitution, and headed by its
Chairman. There was no need for the
Chairman himself to sign the verification.
Its representative, lawyer or any person
who personally knew the truth of the
facts alleged in the petition could sign
the verification. With regard, however, to
the certification of non-forum shopping,
the established rule is that it must be
executed by the plaintiff or any of the
principal parties and not by counsel.
(Commission on Appointments vs. Paler, G.R.
No. 172623, March 3, 2010)
Forum Shopping
Forum shopping is the act of a party litigant
against whom an adverse judgment has been
rendered in one forum seeking and possibly
getting a favorable opinion in another forum,
other than by appeal or the special civil action
of certiorari, or the institution of two or more
actions or proceedings grounded on the same
cause or supposition that one or the other
court would make a favorable disposition.
Forum shopping happens when, in the two or
more pending cases, there is identity of
parties, identity of rights or causes of action,
and identity of reliefs sought.
Test in determining the existence of forum
shopping) Where the elements of litis
pendentia are present, and where a final
judgment in one case will amount to res
judicata in the other, there is forum shopping.
For litispendentia to be a ground for the
dismissal of an action, there must be:
a. identity of the parties or at least such
as to represent the same interest in
both actions;
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b. identity of rights asserted and relief
prayed for, the relief being founded
on the same acts; and
c. the identity in the two cases should be
such that the judgment which may be
rendered in one would, regardless of
which party is successful, amount to
res judicata in the other.
 For forum shopping to exist, both actions
essential facts and circumstances and
must raise identical causes of action,
subject matter and issues. Clearly, it does
not exist where different orders were
questioned, two distinct causes of action
and issues were raised, and two
objectives were sought. (Alma Jose vs.
Javellana, G.R. No. 158239, January 25, 2012)
 In any case, we reiterate that where the
petitioners are immediate relatives, who
share a common interest in the property
subject of the action, the fact that only
one of the petitioners executed the
verification or certification of forum
shopping will not deter the court from
proceeding with the action. (Medado vs.
Heirs of Consing, G.R. No. 186720, February
8, 2012)
Three ways to commit forum shopping:
 through litis pendentia — filing multiple
cases based on the same cause of action
and with the same prayer, the previous
case not having been resolved yet
 through res judicata — filing multiple
cases based on the same cause of action
and the same prayer, the previous case
having been finally resolved
 splitting of causes of action — filing
multiple cases based on the same cause
of action but with different prayers. (Sps.
Plaza vs. Lustiva, G.R. No. 172909, March 5,
2014)
Litis pendentia
Litis pendentia is a situation wherein another
action is pending between same parties for
the same cause of action and the second
action becomes unnecessary and vexatious. X
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x x A notice of adverse claim is nothing but a
notice of a claim adverse to the registered
owner, the validity of which is yet to be
established in court at some future date, and
is no better than a notice of lis pendens which
is a notice of a case already pending in court.
(Acap vs. Court of Appeals, G.R. No. 118114,
December 7, 1995)
Lis pendens
Lis Pendens literally means pending suit,
refers to the jurisdiction, power or control
which a court acquires over property involved
in a suit, pending the continuance of the
action, and until final judgment Founded upon
public policy and necessity, lis pendens is
intended to keep the properties in litigation
within the power of the court until the
litigation is terminated, and to prevent the
defeat of the judgment or decree by
subsequent alienation. Its notice is an
announcement to the whole world that a
particular property is in litigation and serves as
a warning that one who acquires an interest
over said property does so at his own risk or
that he gambles on the result of the litigation
over said property. X x x The filing of a notice
of lis pendens has a two-fold effect:
1. to keep the subject matter of the litigation
within the power of the court until the
entry of the final judgment to prevent the
defeat of the final judgment by successive
alienations; and
2. to bind a purchaser, bona fide or not, of
the land subject of the litigation to the
judgment or decree that the court will
promulgate subsequently. (Biglang-awa vs.
Philippine Trust Company, G.R. No. 158998,
March 28, 2008)
Grounds for cancelling notice of lis
pendens:
1. if the annotation was for the purpose of
molesting the title of the adverse party, or
2. When the annotation is not necessary to
protect the title of the party who caused it
to be recorded
The notice of lis pendens hereinabove
mentioned may be cancelled only upon
50 CENTER FOR LEGAL EDUCATION AND RESEARCH
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order of the court, after proper showing
that the notice is for the purpose of
molesting the adverse party, or that it is
not necessary to protect the rights of the
rights of the party who caused it to be
recorded. (Section 14, 2nd paragraph, Rule 13,
Rules of Court)
Res judicata
A final judgment or decree on the merits by a
court of competent jurisdiction is conclusive of
the rights of the parties or their privies, in all
later suits and on all points and matters
determined in the previous suit. The term
literally means a ―matter adjudged, judicially
acted upon, or settled by judgment.‖ The
principle bars a subsequent suit involving the
same parties, subject matter, and cause of
action. Public policy requires that
controversies must be settled with finality at a
given point in time. (Sps. Dela Cruz vs. Joaquin,
Supra)
Elements
1. the former judgment or order must be
final;
2. it must have been rendered on the
merits of the controversy;
3. the court that rendered it must have
had jurisdiction over the subject matter
and the parties; and
4. There must have been -- between the
first and the second actions -- an
identity of parties, subject matter and
cause of action. (Sps. Dela Cruz vs.
Joaquin, Supra)
Two concepts of res judicata.
 Bar by prior or former judgment
 Conclusiveness of judgment or preclusion
of issues or collateral estoppels
Basis of res judicata:
1. Parties should not be permitted to litigate
same issue more than once.
2. When a right or fact has been judicially
tried and determined by a court of
competent jurisdiction, the judgment of
the court, so long as it remains
unreversed, should be conclusive upon the

parties and those in privity with them in
law or estates.
Certification against Forum Shopping
Certification under oath in the complaint or
other initiatory pleading 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 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. (Section 5)
Effect of failure to comply
 Failure to comply with the foregoing, shall
be cause for the dismissal of the case
without prejudice, unless otherwise
provided, upon motion.
 Indirect Contempt - The submission of
a false certification or non-compliance
with any of the undertakings above.
 Direct Contempt - willful and deliberate
forum shopping; ground for summary
dismissal with prejudice
Note: The rule does not apply to cases that
arise from an initiatory or original action which
has been elevated by way of appeal
orcertiorari to higher or appellate courts or
authorities. This is so not only because the
issues in the appellate courts necessarily differ
from those in the lower court, but also
because the appealed cases are a continuation
of the original case and treated as only one
case.
Guidelines:
 The certificate is required only for
complaints and initiatory pleadings. (Korea
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Technologies Co. Ltd. vs. Lerma, G.R. No.
143581, January 7, 2008)
The certificate is to be executed by petitioner
and not by counsel.
 The certification is mandatory under Sec.
5 of Rule 7 but not jurisdictional. (Robert
Dev‘t Corp. vs. Quitain, 315 SCRA 150)
 Certificate of non-forum shopping is not
required in a compulsory counterclaim.
(Santo Tomas University Hospital vs. Surla, 294
SCRA 382)
 All plaintiffs must sign the certification of
non forum shopping. (Loquias vs. Office of
the Ombudsman)
Every petition filed with the Supreme
Court or the CA must be accompanied by
a certificate of non-forum shopping.
 Administrative Circular No. 28-91, dated
February 8, 1994, issued by the Supreme
Court requires that every petition filed
with the Supreme Court or the CA must be
accompanied by a certificate of non-forum
shopping. Later, Administrative Circular
No. 04-94 was issued and made effective
on April 1, 1994. It expanded the
certification requirement to include cases
filed in court and in quasi-judicial
agencies. The Court adopted paragraphs
(1) and (2) of Administrative Circular No.
04-94 to become Section 5, Rule 7 of the
1997 Rules of Civil Procedure.
Significantly, to curb the malpractice of
forum shopping, the rule ordains that a
violation thereof would constitute
contempt of court and be a cause for the
summary dismissal of the petition, without
prejudice to the taking of appropriate
action against the counsel of the party
concerned. (Mandaue Galleon Trade, Inc. vs.
Isidto, G.R. No. 181051, July 5, 2010)
 Certificate of non-forum shopping is not
required or necessary in criminal cases
and distinct causes of action. The absence
of a provision on non-forum shopping in
the Revised Rules of Criminal Procedure,
unlike in the Rules on Civil Procedure,
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ARELLANO UNIVERSITY SCHOOL OF LAW
suggests as much. (Gilbert Guy v. Asia
United Bank, G.R. No. 174874, 4 Oct. 2007)
 Under the omnibus rules implementing the
Labor Code as amended by D.O. No. 9,
labor cases are supposed to be filed in the
Regional Office which has jurisdiction over
the principal office of the employer or
where the bargaining unit is principally
situated. The rules further provide that
where two or more petitions involving the
same bargaining unit are filed in one
Regional Office, the same shall be
automatically consolidated. Hence, the
filing of multiple suits and the possibility of
conflicting decisions will rarely happen in
this proceeding and, if it does, will be easy
to discover.
Notably, under the Labor Code and the
rules pertaining to the form of the petition
for certification election, there is no
requirement for a certificate of non-forum
shopping either in D.O. No. 9, series of
1997 or in D.O. No. 40-03, series of 2003
which replaced the former.
Considering the nature of a petition for
certification election and the rules
governing it, we therefore hold that the
requirement for a certificate of non-forum
shopping is inapplicable to such a
petition. (Samma-Likha v. Samma Corp. G.R.
No. 16714113 March 2009)
3.E.3.C.1. Requirement to a corporation
executing the verification/ certification
of non-forum shopping
The requirement that petitioner should sign
the certificate of non-forum shopping applies
even to corporations, the Rules of Court
making no distinction between natural and
juridical persons. The signatory in the case of
the corporation should be ―a duly authorized
director or officer of the corporation‖ who has
knowledge of the matter being certified. If, as
in this case, the petitioner is a corporation, a
board resolution authorizing a corporate
officer to execute the certification against
forum-shopping is necessary. A certification
not signed by a duly authorized person
renders the petition subject to dismissal.
52 CENTER FOR LEGAL EDUCATION AND RESEARCH
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(Gonzales vs. Climax Mining Ltd., G.R. No. 161957.
February 28, 2005)
 X x x Only individuals vested with
authority by a valid board resolution may
sign the certificate of non-forum shopping
in behalf of a corporation. Proof of said
authority must be attached; otherwise,
the petition is subject to dismissal. (Asean
Pacific Planners vs. City of Urdaneta, G.R. No.
162525, September 23, 2008)
Non-compliance with the requirements
on, or submission of defective,
verification and certification against
forum shopping, GUIDELINES:
 A distinction must be made between non-
compliance with the requirement on or
submission of defective verification, and
non-compliance with the requirement on
or submission of defective certification
against forum shopping.
As to verification, non-compliance
therewith or a defect therein does not
necessarily render the pleading fatally
defective. The court may order its
submission or correction or act on the
pleading if the attending circumstances
are such that strict compliance with the
Rule may be dispensed with in order that
the ends of justice may be served
thereby.
Verification is deemed substantially
complied with when one who has ample
knowledge to swear to the truth of the
allegations in the complaint or petition
signs the verification, and when matters
alleged in the petition have been made in
good faith or are true and correct.
As to certification against forum
shopping, non-compliance therewith or a
defect therein, unlike in verification, is
generally not curable by its subsequent
submission or correction thereof, unless
there is a need to relax the Rule on the
ground of ―substantial compliance‖ or
presence of ―special circumstances or
compelling reasons.‖ (Altres vs. Empleo,
G.R. No. 180986, 573 SCRA 583, December
11, 2008)

3.E.3.D. Effect of the signature of
counsel in a pleading
The signature of counsel signifies that:
1) He has read the pleading.
2) That to the best of his knowledge,
information and belief, there are good
grounds to support it; and
3) That it is not interposed for delay.
3.E.4. Allegations in a Pleading
3.E.4.A. Manner of Making Allegation
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,
omitting the statement of mere evidentiary
facts (Sec. 1, Rule 8).
Ultimate Facts are the important and
substantial facts which either directly form the
basis of the plaintiff‘s primary right and duty
or directly make up the wrongful acts or
omissions of the defendant.
Evidentiary Facts are those which are
necessary to prove the ultimate fact, or which
furnish evidence of the existence of some
other facts. They are not proper as allegations
in the pleadings as they may only result in
confusing the statement of the cause of action
or the defense.
3.E.4.A.1. Condition Precedent
In any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (Sec. 3, Rule 8)
Condition precedent refers to matters which
must be complied with before a cause of
action arises. (Riano, Civil Procedure)
3.E.4.A.2. Fraud, mistake, malice, intent,
knowledge and other conditions of the
mind, judgments, official documents or
documents or acts
In all averments of fraud or mistake the
circumstances constituting fraud or mistake
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must be stated with particularity. Malice,
intent, knowledge, or other condition of the
mind of a person may be averred generally.
(Sec. 5, Rule 8)
Ultimate facts are essential facts that
directly form the basis of the right sought to
be enforced or the defenses relied upon.
When a fact is essential:
When it cannot be stricken out without leaving
the statement of the cause of action or
defense insufficient.
What are not ultimate facts?
 Evidentiary facts, which are facts
necessary for determination of the
ultimate facts or the premises upon
which conclusions of ultimate facts are
based.
 Legal conclusions, conclusions or
inferences of facts from facts not
stated, or incorrect inferences or
conclusions from facts stated.
 The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.
 An allegation that a contract is valid or
void is a mere conclusion of law.
(Remitere, et.al vs. Vda de Yulo, et. al, 16
SCRA 251)
 Conclusions of law alleged in the
complaint are not binding on the
court.
Facts that may be averred generally
3. Condition precedent
Note: There must still be an allegation that
the specific condition precedent has been
complied with; otherwise it will be dismissed
for lack of cause of action.
2. Capacity to sue or be sued.
3. Capacity to sue or be sued in a
representative.
4. Legal existence of an organization.
Note: A party desiring to raise an issue as to
the legal existence or capacity of any party to
sue or be sued in a representative capacity
shall do so by specific denial which shall
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include supporting particulars within the
pleader‘s knowledge.
5. Malice, intent, knowledge, or other
condition of the mind (Sec. 5, Rule 8).
6. Judgments of domestic or foreign courts,
tribunals, boards, or officers; No need to
show jurisdiction (Sec. 6, Rule 8)
7. Official document or act.
Facts that must be averred with
particularly
Circumstances showing fraud or mistake.
If the plaintiff is a foreign corporation, it must
affirmatively aver the following:
 The specific circumstance that it is duly
licensed to do business in the
Philippines; or
 Even if not licensed to do business in
the Philippines, the transaction is an
isolated.
Ways of challenging a party‘s capacity to sue
and be sued
 By specific denial.
 By a motion to dismiss.
 By a motion for bill of particulars.
3.E.4.B. Pleading an Actionable
Document
Actionable document is a document or
instrument which is the basis of a cause of
action or defense, and not merely evidentiary
thereon. (Araneta, Inc. v. Lyric Film Exchange,
Inc. 58 Phil 736)
General Rule: When an actionable document
is properly alleged, failure to deny the same
under oath (verification) shall result to: The
implied admission of the genuineness and
due execution of the document.
The admission of the due execution and
genuineness of a document simply means
 that ―the party whose signature it bears
admits that he signed it or that it was
signed by another for him with his
authority;
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 that at the time it was signed it was in
words and figures exactly as set out in the
pleading of the party relying upon it;
 that the document was delivered; and
 that any formal requisites required by law,
such as a seal, an acknowledgment, or
revenue stamp, which it lacks, are waived
by him.
 X x x When the law makes use of the
phrase ‗genuineness and due execution of
the instrument‘ it means nothing more
than that the instrument is not spurious,
counterfeit, or of different import on its
face from the one executed. It is equally
true, however, that execution can only
refer to the actual making and delivery,
but it cannot involve other matters
without enlarging its meaning beyond
reason. The only object of the rule was to
enable a plaintiff to make out a prima
facie, not a conclusive case, and it cannot
preclude a defendant from introducing any
defense on the merits which does not
contradict the execution of the instrument
introduced in evidence. (Benguet
Exploration vs. CA, G.R. No. 117434. February
9, 2001)
Exceptions:
 When the adverse party was not a party
to the instrument; or
 When the order for the inspection of the
document was not complied with.
 When document need not be formally
offered in evidence
Note: A variance in the substance of the
document set forth in the pleading and the
document annexed thereto does not warrant
the dismissal of an action. The content of the
documents annexed shall prevail.
How to contest an actionable document
a) By specific denial of the due execution and
genuiness;
b) By under oath (verification); and
c) By seeting forth what is claimed to be
facts. (Sec. 8, Rule 8)
Genuineness is alleged by:
1) Copying a substantial portion of the
document into the pleading;

2) Annexing or incorporating the document
into the pleading; and
3) Both copying and annexing the document
into the pleading.
Due execution – that the document was
signed voluntarily and knowingly by the party
whose signature appears thereon, that if
signed by somebody else, such representative
had the authority to do so, that it was duly
delivered, and that the formalities were
complied.
Failure to deny the genuineness and due
execution of the document does not amount
to a waiver. It does not stop a party from
controverting such by evidence of:
a) Fraud
b) Mistake
c) Duress
d) Want/illegality of consideration
e) Compromise
f) Payment
g) Statute of limitations
h) Estoppel
i) Minority or imbecillity
Defenses waived by admission:
1) Forgery of signature.
2) The party charged signed the instrument
in some other capacity.
3) Want of authority of an agent.
4) Corporation was not authorized under the
charter to sign the instrument.
5) Want of delivery; or
6) The document as signed was not in words
and figures exactly set out in the pleading.
Note: Failure to specifically deny under oath
the genuineness and due execution of an
actionable document generally implies an
admission of the same by the other party.
However, such implied admission is deemed
waived if the party asserting the same has
allowed the adverse party to present evidence
contrary to the contents of such document
without objection. (Central Surety v. Hodges, 38
SCRA 159 [1971])
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3.E.4.C. Specific Denials
A defendant must specify each material
allegation of fact the truth of which he does
not admit and whenever practicable, set forth
the substance of the matters upon which he
relies to support his denial.
Note: To be considered a specific denial, it
must conform to the provisions of Rule 8, Sec.
10:
Specify each material allegation of fact the
truth of which he does not admit, and
whenever practicable, set forth the substance
of the matters upon which he relies to support
his denial;
Specify so much of the averment as is true
and material and deny the remainder; or
State defendant‘s lack of knowledge or
information sufficient to form a belief as to the
truth of a material averment made in the
complaint.
Three ways of making a specific denial
Specific absolute denial- By specifically
denying the averment and, whenever
practicable, setting forth the substance of the
matters relied upon for such denial.
Partial specific denial - Part admission and
part denial.
Disavowal of knowledge - By an allegation
of lack of knowledge or information sufficient
to form a belief as to the truth of the
averment in the opposing party‘s pleading.
Note: This does not apply where the fact as
to which want of knowledge is asserted is, to
the knowledge of the court, so plain and
necessarily within the defendant‘s knowledge
that his averment of ignorance must be
palpably untrue.
Not deemed admitted if not specifically
denied:
a) Unliquidated damages. (Rule 8, Sec. 11)
b) Allegations immaterial to the cause of
action.
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c) Allegations where no answer has been
filed.
d) Conclusions of law.
3.E.4.C.1. Effect of failure to make
specific denials
Where the allegation is not specifically denied
it shall be considered as having been admitted
by the party against whom such allegations
are directed against.
3.E.4.C.2. When a specific denial
requires an oath (verification)
1. The denial of the genuineness and due
execution of an actionable document
2. The denial of allegations of usury in a
complaint to recover usurious interest.
Deemed admitted even if specifically
denied but not under oath: (Sec. 12, Rule 8)
 Allegations as to usury
 Authenticity and due execution of
actionable documents properly pleaded,
where the opposing party was a party
thereto.
Note: The law requires that their denial must
be under oath.
3.E.5. Effect of Failure to Plead
Default may occur when the defending party
fails to file his answer within the reglementary
period. It does not occur from the mere failure
of the defendant to attend the trial. The court
cannot motu propio declare the defendant in
default. There must be a requisite motion so
that the defending party can be declared in
default
A declaration of default is not an admission of
the truth or validity of the plaintiff‘s claim
(Vlason Enterprises Corp. vs. CA, 310 SCRA 26).
3.E.5.A. Failure to Plead Defenses and
Objections
General Rule: Defenses and objections not
pleaded either in a motion to dismiss or in the
answer are deemed waived. (Omnibus Motion
Rule)
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Exceptions:
1. Lack of jurisdiction
2. Litis pendencia
3. Res judicata
4. Prescription of the action (Sec. 1, Rule 9)
 The court shall dismiss the claim if any of
these grounds appears from the pleadings
or the evidence on record. These defenses
may be raised at any stage of the
proceedings even for the first time on
appeal EXCEPT that lack of jurisdiction
over the subject matter may be barred by
laches. (Tijam vs. Sibonghanoy, 23 SCRA 29)
A compulsory counterclaim or a cross-claim
not set up shall be bared (Rule 9, Sec.2)
Note: The presence of the said grounds
authorizes the court to motu proprio to
dismiss the claims. These grounds must,
however, appear from the pleadings or the
evidence on record. Moreover, may be raised
at any stage of the proceedings even for the
first time on appeal except estoppel by laches.
Effect of failure of the defendant to file
an answer
General Rule: If the defending party fails to
answer within the time allowed therefore, the
court, upon motion, shall declare him in
default.
Exceptions: In the following cases, no
default may be declared:
 Annulment of marriage;
 Declaration of nullity of marriage;
 Legal separation;
 Special civil actions of certiorari,
prohibition, and mandamus (comment is
filed);or
 Summary procedure
3.E.5.B. Failure to Plead a Compulsory
Counterclaim and Cross-claim
A compulsory counterclaim, or a cross-claim
not set up shall be barred.

3.E.6. Default
The failure of the defendant to answer within
the proper period. It is neither his failure to
appear nor failure to present evidence.
Requisites for a declaration of default:
 Defendant fails to answer within the time
allowed therefore;
 There must be a motion to declare the
defendant in default;
 There must be a notice to the defendant
by serving upon him a copy of such
motion; and
 There must be proof of such failure to
answer.
Other grounds to declare a party in
default:
 Non-compliance or insufficient compliance
with the order of the court to file a bill of
particulars.
 Refusal to comply with the modes of
discovery.
 Failure to furnish plaintiff with a copy of
the Answer.
Note: If an amended complaint is filed
resulting in a withdrawal of the original
complaint, and defendant was declared in
default for failing to answer the original
complaint, the defendant is entitled to answer
the amended complaint as to which he was
not in default.
3.E.6.A. When a declaration of default is
proper
To declare the defendant in default the
following requisites must be present:
The court must have validly acquired
jurisdiction over the person of the defendant
either by service of summons or voluntary
appearance; The defendant fails to answer
within the time allowed therefore; There must
be a motion to declare the defendant in
default; There must be notice to the
defendant by serving upon him a copy of such
motion; There must be proof of such failure to
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answer; and there must be a hearing to
declare the defendant in default.
Order of default
 Issued by the court on plaintiff‘s motion
and at the start of the proceedings, for
failure of the defendant to file his
responsive pleading seasonably.
 The order of default renders the
defending party in default. The court shall
thereupon either: a) proceed to render
judgment granting the claimant such relief
as his pleading may warrant, or b) in its
discretion, shall require the claimant to
submit evidence. The reception of
evidence may be delegated to the clerk of
court (Sec. 3, Rule 9)
3.E.6.B. Effect of an order of default
The party in default is not entitled to take part
in the trial; he is only entitled to receive notice
of subsequent proceedings.
The party in default may still be called on as a
witness, in behalf of the non-defaulting
defendant. (Cavili vs. Florendo 154 SCRA 610).
The court shall proceed to render judgment
granting the claimant such relief as his
pleading may warrant, unless the court in its
discretion requires the claimant to submit
evidence.
Judgment by default
Judgment rendered by the court on the basis
of the complaint or after receiving plaintiff‘s
evidence when the defendant was declared in
default.
General Rule: There is no judgment by
default without an order of default.
Exception: When a party fails to appear
before the officer who is to take his deposition
or fails to serve answers to interrogatories.
(Sec. 5, Rule 29)
Note: A judgment rendered against a party in
default shall not exceed the amount or be
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different in kind from that prayed for nor
award unliquidated damages.
3.E.6.C. Relief from an order of default
The party in default may after notice of the
order of default and before judgment file a
Motion to lift the order of the default (BDO vs.
Transipek, G.R. No. 181235, July 22, 2009) and
show:
That the failure to answer was due to fraud,
accident, mistake or excusable negligence,
and
That he has a meritorious defense appearing
in his affidavit of merit.
3.E.6.D. Effect of a partial default
Partial default
There is partial default when there is a claim
or suit upon a common cause of action against
several defending parties and where at least
one of them files an answer. Those who
failed to file an answer are declared in default.
Note: If the answering defendant succeeds in
defeating the claim of the plaintiff, such result
inures to the benefit of the defaulting
defendants.
 If the co-defendant who filed his answer
died and the case was dismissed as to
him, the answer he filed does not inure to
the benefit of the defaulting defendants.
 If the defenses alleged by the co-
defendant are personal to him, the same
will not inure to the benefit of his co-
defendants in default.
Effect of Partial Default
The court will try the case against ALL
defendants upon the answer of some EXCEPT
where the defense is personal to the one who
answered, in which case, it will not benefit
those who did not answer.
Remedies of a party declared in default:
The following are the alternative and
successive remedies of a party declared in
default:
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Against the ORDER of default
Motion to set aside the order of default
(BDO vs. Transipek, supra) on the ground of:
fraud, accident, mistake, or excusable
negligence (FAME)
 If motion to set aside is denied, Motion for
Reconsideration.
 If motion for reconsideration is denied,
there is no remedy left because such
order is interlocutory. Unless there is
grave abuse of discretion, where the
remedy is a Petition for Certiorari (Rule 65)
Against the JUDGMENT by default:
 Motion for Reconsideration.
 Motion for New Trial.
 If denied, Appeal the judgment.
 Petition for Relief from Judgment or
Petition for Relief from Denial of Appeal.
(Rule 38, Section 1 or 2)
 If denied, Petition for Annulment of
Judgment. (Rule 47)
Notes:
 Meritorious defense is a statement of the
evidence which defendant intends to
present if the motion is granted and which
will warrant a reasonable belief that the
result would probably be different if new
trial is granted.
 Where the defendant was improperly
declared in default and the order is not
lifted, he can elevate the matter by
certiorari without waiting for the judgment
by default.
 If a default judgment was already
rendered, he can also resort immediately
to certiorari because his challenge is on
the nullity of both the order and the
judgment by default.
 An order of default and an order denying
a motion for reconsideration of the default
order are NOT appealable as they are
merely interlocutory orders.
 An order denying a petition for relief,
seeking to set aside an order of default is
final and therefore, appealable.
 An instance when no order of default
is issued by the court, yet defendant

cannot reasonably demand to be
furnished with copies of orders and
processes.
 If a party declared in default is entitled to
notice of subsequent proceedings, all the
more should a party who has not been
declared in default be entitled to such
notice. But what happens if the residence
or whereabouts of the defending party is
not known or he cannot be located? In
such a case, there is obviously no way
notice can be sent to him and the notice
requirement cannot apply to him. The law
does not require that the impossible be
done. Nemo tenetur ad impossibile. The
law obliges no one to perform an
impossibility. Laws and rules must be
interpreted in a way that they are in
accordance with logic, common sense,
reason and practicality. (Santos vs. PNOC
Exploration Corporation, G.R. No. 170943,
September 23, 2008)
 If defendant is declared in default, plaintiff
is to present evidence ex parte
 The plaintiff is not automatically entitled
to the relief prayed for. The law gives the
defendant some measure of protection as
the plaintiff must still prove the allegations
in the complaint. (Saguid vs. Court of
Appeals, G.R. No. 150611, June 10, 2003)
Order of default distinguished from
judgment by default
Order of Default Judgment by Default
Issued by the court, on Rendered by the court
plaintiff‘s motion for following a default order
failure of the or after it received, ex
defendant to file his parte, plaintiff‘s
responsive pleading evidence.
seasonably.
Interlocutory, not Final, appealable.
appealable.
Note: A judgment by default is always
preceded by an order of default. There is only
one exception to this and that is provided
under Rule 29, Sec. 3, par. c which is the
refusal to comply with the modes of discovery.
3.E.6.E. Extent of relief
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That may be granted to claimant – where the
defendant is declared in default and
subsequently judgment is rendered against
him such judgment shall not exceed the
amount or be different in kind from that
prayed for nor award unliquidated damages.
3.E.6.F. Action where default is not
allowed
1. Annulment of marriage.
2. Declaration of nullity of marriage.
3. Legal separation.
4. Special civil actions of certiorari,
prohibition, and mandamus (comment is
filed); or
5. Summary procedure.
3.F. FILING AND SERVICE OF
PLEADINGS, JUDGMENTS, FINAL
ORDERS AND RESOLUTIONS
Filing is the act of presenting the pleading or
other papers to the clerk of court
Service is the act of providing a party with a
copy of pleading or paper concerned
3.F.1. Payment of docket fees
It is not simply the filing of the complaint or
appropriate initiatory pleading but the
payment of the prescribed docket fee that
vests a trial court with jurisdiction over the
subject matter of the action (Proton Pilipinas,
supra)
 Nonpayment at the time of filing does not
automatically cause the dismissal of the
case, as long as the fee is paid within the
prescriptive or reglementary period
(PAGCOR vs. Lopez, 474 SCRA 76)
 If the amount of docket fees is insufficient
considering the amount of the claim, the
party filing the case will be required to pay
the deficiency, but jurisdiction is not
automatically lost (Rivera vs. Del Rosario,
419 SCRA 626)
 The right to appeal is a purely statutory
right. Not being a natural right or a part of
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due process, the right to appeal may be judgment personally to

exercised only in the manner and in the clerk of court.
accordance with the rules provided
therefore. For this reason, payment of the 3.F.3. Periods of Filing Pleadings
full amount of the appellate court docket
and other lawful fees within the Upon motion and on such terms as may be
reglementary period is mandatory and just, the court may extend the time to plead,
jurisdictional. Nevertheless, as this Court or allow an answer or other pleading to be
ruled x x x, the strict application of the filed after the time fixed by the rules.
jurisdictional nature of the above rule on
payment of appellate docket fees may be Once granted, the extension of time starts
mitigated under exceptional circumstances from the end of the original reglementary
to better serve the interest of justice. It is period. It begins to run whether or not the
always within the power of this Court to movant/grantee has knowledge of such action
suspend its own rules, or to except a of the granting court. Notice, in this instance,
particular case from their operation, is unimportant as lawyers should never
whenever the purposes of justice require presume that their motions for extension or
it. (Bautista vs. Unangst, G.R. No. 173002, July postponement would be granted. It behooves
4, 2008) them to follow up on their motions, for the
mere filing of the same is not enough.
3.F.2. Filing versus service of pleadings
Note: Personal filing and service is the
FILING SERVICE preferred mode under Section 6, Rule 13 of
Filing is made by Serviceis the act of the Rules of Court.
presenting the original providing a party
copy of the pleading, with a copy of
notice, appearance, pleading or paper
motion, order or couriered.

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Periods of filing pleadings

10 days 15 days 30 days 60 days

1. Answer to the 1. Answer to the Answer of a defendant Sec 15 Rule 14 extraterritorial
amended complaint complaint, after service foreign private juridical service, after notice
NOT as a matter of of summons unless a entity and service is
right, from notice of different period is fixed made on the
the order admitting the by court (First government official
same (First sentence, paragraph, Section 1, designated by law,
second paragraph, Rule 11) after receipt of
Section 3, Rule 11). summon by such entity
2. Answer to amended (Section 2, Rule 11)
2. Answer to complaint as a matter of
counterclaim or cross right, after being served
claim, from service with a copy. (First
(Section 4, Rule 11). paragraph, Section 3,
Rule 11)
3. Reply, from service
of the pleading 3. Answer to third
responded to (Section (fourth, etc) party
6, Rule 11) complaint (Section 5,
Rule 11)
4. Answer to
supplemental
complaint, from the
order admitting the
same. (Section 7, Rule
11)

Note: Rules on answer to an amended residence, if known, with postage fully

complaint shall apply to amended paid, and with the instruction to the
counterclaim, amended cross claim, amended postmaster to return the mail to the
third (fourth, etc) party complaint, and sender after 10 days if not delivered
amended complaint in intervention. (Sec. 7, Rule 13)

3.F.4. Manner of Filing 3.F.5. Modes of service

1. By presenting the original copy of the
pleading, notice, appearance, motion,
order or judgment personally to the
clerk of court; or
2. By registered mail which must be
through the Registry Service.
Service by ordinary mail may be
done only if no registry service available
in the locality of either the sender or the
addressee (Sec. 7, Rule 13)
Service by Registered mail shall be
done 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, or otherwise at his
Service is the act of providing a party with a
copy of pleading or paper concerned.
Personal service is made by:
Delivering a copy of the papers served to the
party or his counsel or
Leaving a copy at the party‘s or counsel‘s
residence, if known, with a person of sufficient
age and discretion residing therein, if no
person is found in his office or if his office is
not known, by leaving the papers in his office
with his clerk or a person having charge
thereof.

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PERSONAL SERVICE
3.F.5.A.
How Done
Delivering personally a copy
to the party or his counsel,
Leaving a copy in counsel‘s
office with his clerk or with a
person having charge
thereof,
Leaving the copy (between
8am-6pm) at party‘s or
counsel‘s residence, with a
person of sufficient age and
discretion then residing
therein
Upon actual delivery
1. Written admission of
the party served,
2. Official Return of the
server,
Affidavit of the party
serving containing a
full statement of the
date, place, and
manner of service
Existence in the records of
the case; otherwise, by the
written or stamped
acknowledgment of its filing
by the clerk of court on a
copy of the same
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REGISTERED MAIL ORDINARY MAIL
SERVICE
3.F.5.B. 3.F.5.B.
3.F.5.C.
By depositing a copy with Posting via ordinary Delivering a copy to
the post office, in a sealed mail (only when the Chief Clerk of
envelope, plainly addressed registered service is not Court and not with
to the party/his counsel at available in the locality) the branch clerk of
his office / residence, with court with proof of
postage fully pre-paid failure of both
personal service and
service by mail
…with instructions to the
postmaster to return it to
sender after 10 days, if
undelivered
Upon actual receipt by the Upon actual receipt by At the time of
addressee, or after 5 days the addressee, or 10 delivery to the clerk
from the date the addressee days after mailing, of court
received the first notice of whichever date is earlier
the Post Master, whichever
date is earlier
Proof of Service
3.F.5.G.
Affidavit of the party serving Affidavit of the person
containing a full statement of mailing that a copy of
the date, place, and manner the pleading was
of service, and deposited in the post
office, in a sealed
Registry receipt issued by envelope, plainly
the mailing office addressed to the
party/his counsel at his
office/residence, with
postage fully pre-paid
Proof of Filing
3.F.5.G.
Registry Receipt and by the N/A
Affidavit of the person who
mailed
Proof of Receipt
3.F.5.G.
Registry return card
Note: Registry Return Card
shall be filed immediately
upon its receipt by the

PERSONAL SERVICE REGISTERED MAIL
3.F.5.A. 3.F.5.B.
sender, or in lieu thereof, the
unclaimed letter together
with the certified/sworn copy
of the notice given by the
Post Master to the addressee
3.F.5.D. 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. (Section 9, Rule
13)
3.F.5.E. 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. (Sec. 11, Rule 13)
Note: Service by ordinary mail may be done
only if no registry service is available in the
locality of either the sender or the addressee
(Sec. 7, Rule 13)
If the party avails of a private courier, the date
the court actually receives the pleading is
deemed the date of filing.
Service or filing of a copy of a pleading by
courier is not allowed. Service and Filing of
pleadings by a courier is a mode not provided
in the Rules. (Panlilio et al v. Planters Dev. Bank,
GR. No. 193650, October 8, 2014).
3.F.5.F. When service is deemed complete
Personal service is complete upon actual
delivery. Service by ordinary mail is complete
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ORDINARY MAIL
SERVICE
3.F.5.B.
3.F.5.C.
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.
(Section 10, Rule 13)
3.G. AMENDMENT
Amendment is the correction of an error
committed in any process, pleading, or
proceeding at law, or in equity, and which is
done either as of course, or by the consent of
the parties, or upon motion to the court in
which the proceeding is pending.
Supplemental - refers to the process of
adding to a thing to complete it. It is made in
addition to a previous one, in order to supply
some deficiency in it. It refers to one filed for
the purpose of correcting, adding to, and
explaining a pleading already filed.
Amended pleadings may be made by:
1. Adding or striking out an allegation or the
name of any party; or
2. Correcting a mistake in the name of a
party or a mistaken or inadequate
allegation or description in any other
respect. (Sec. 1, Rule 10)
Classes of Amendment
1) Amendment as a matter of right.
2) Amendment by leave of court.
3) Formal amendment.
4) Amendments to conform to or authorize
presentation of evidence.
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3.G.1. Amendment as a matter of right
(Sec. 2, Rule 10)
At any time before a responsive pleading is
served; or
At any time within 10 days after a Reply is
served.
A Motion to Dismiss is not a responsive
pleading. Plaintiff can still amend the
complaint after such motion has been filed
(Remington Industrial Sales vs. CA, 382 SCRA 499).
Amendment as a matter of right may, by the
terms of Sec. 2 Rule 10, be made only ONCE.
3.G.2. Amendments by leave of court
(Sec 3, Rule 10)
When amendment is substantial (affecting the
cause of action alleged in the complaint), it
may only be done with leave of court. Such
leave may be refused if it appears to the court
that the motion was made with intent to
delay.
Note: Even if the amendment is substantial,
no leve of court is required if made as a
matter of right.
Amendment for the second or subsequent
time must always be with leave of court. This
is true even if an answer is yet to be filed or
even if the case is yet to be set for trial.
Amendment for the complaint is now allowed
even if an order for its dismissal has been
issued provided that the amended complaint is
filed before the dismissal order became final
and executory.
 A responsive pleading having been filed,
amendments to the complaint may,
therefore, be made only by leave of court
and no longer as a matter of right. X x x
The clear import of such amendment in
Section 3, Rule 10 is that under the new
rules, "the amendment may (now)
substantially alter the cause of action or
defense." This should only be true,
however, when despite a substantial
change or alteration in the cause of action
or defense, the amendments sought to be
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made shall serve the higher interests of
substantial justice, and prevent delay and
equally promote the laudable objective of
the rules which is to secure a "just,
speedy and inexpensive disposition of
every action and proceeding. The courts
should be liberal in allowing amendments
to pleadings to avoid a multiplicity of suits
and in order that the real controversies
between the parties are presented, their
rights determined, and the case decided
on the merits without unnecessary delay.
(Lisam Enterprise vs. BDO Unonbank, G.R. No.
143264, April 23, 2012)
 Prior to the filing of an answer, the
plaintiff has the absolute right to amend
the complaint whether a new cause of
action or change in theory is introduced.
The reason for this rule is implied in the
subsequent Section 3 of Rule 10[18].
Under this provision, substantial
amendment of the complaint is not
allowed without leave of court after an
answer has been served, because any
material change in the allegations
contained in the complaint could prejudice
the rights of the defendant who has
already set up his defense in the answer.
(Remington Industrial vs. CA, G.R. No. 133657,
May 29, 2002)
When amendment by leave of court is
improper
Where the court has no jurisdiction over the
original complaint and the purpose of the
amendment is to confer jurisdiction;
When it appears that the motion to
amendment would have the effect of delaying
the proceedings or is made with intent to
delay the action.
When it will result in a change of cause of
action or defense or change the theory of the
case;
When the amendment will result to an
inconsistency with the allegations in the
original pleading.
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Note: If the original complaint is for the pleadings to be amended and shall do so with
nullification and declaration as null and void of liberality if the presentation of the merits of
the promissory note and the real estate and the action and the ends of substantial justice
chattel mortgage and the amended pleading will be subserved thereby.
prays for the reformation of the real and
chattel mortgage, it was held that The court may grant a continuance to enable
―Nullification‖ and ―Reformation‖ are the amendment to be made.
inconsistent with each other, hence, improper.
(Guzman-Castillo vs. Court of Appeals, 159 SCRA 3.G.5. Supplemental Pleadings
220)
Upon motion of a party, the court may, upon
When the plaintiff had no cause of action at reasonable notice and just terms, permit
the time of the filing of the original complaint service of a supplemental pleading which sets
and the purpose of the amendment is to forth a cause of action that accrued after the
introduce a subsequently acquired cause of filing of the original complaint. (Sec. 6, Rule 10)
action. A cause of action, which has not yet
accrued, cannot be cured by amendment or This is allowed only if there is a valid
supplemental pleadings. subsisting cause of action at the time the
original complaint was filed.
3.G.3. Formal Amendment
The adverse party may plead thereto within
This can be made at any stage of the action in 10 days from notice of the order admitting the
order for the court to summarily correct any supplemental pleadings.
defect in the designation of parties and other
clearly clerical or typographical errors, Amended pleadings vs. Supplemental
provided, no prejudice is caused thereby to pleadings
the adverse party. (Sec. 4, Rule 10)
Supplemental
Amended Pleadings
3.G.4. Amendments to conform to or Pleadings
authorize presentation of evidence Refers to facts existing Refers to facts arising
at the time of the after the filing of the
Amendments to conform to evidence commencement of the original pleading.
action.
When issues not raised by the pleadings are Supersedes the original Taken together with
pleading. the original pleading.
tried with the express or implied consent of
Can be made as a Always with leave of
the parties, they shall be treated in all matter of right as when court.
respects as if they had been raised in the no responsive pleading
pleadings. has yet been filed.

An amendment of the pleadings is caused to 3.G.6. Effect of Amended Pleadings

make such pleadings conform to the evidence.
It may be made upon motion of any party at An amended pleading supersedes the pleading
any time, even after judgment. However, it amends.
failure to amend does not affect the result of
the trial of these issues. Admissions in superseded pleadings may be
received in evidence against the pleader.
Amendments to authorize presentation
of evidence: Claims or defenses alleged in the superseded
pleadings which are not incorporated in the
If evidence is objected to at the trial on the amended pleading shall be deemed waived.
ground that it is not within the issues made by
the pleadings, the court may allow the

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Note: Absence of a certification against
forum shopping shall not be curable by
amendment of the complaint or pleading; it
shall be cause for the dismissal of the case
without prejudice. However, if the acts of
party or counsel clearly constitute willful and
deliberate forum shopping, such shall be a
ground for dismissal with prejudice and
constitute direct contempt.
 Notice of lis pendens is a notice of
pendency of an action between the
parties involving to or right of
possession over real property (Sec. 14,
Rule 13).
Purpose of Notice of Lis Pendens
To announce to the whole world that a
particular real property is in litigation, serving
as a warning that one who acquires an
interest over the said property does so at his
own risk.
When Available
In an action affecting the title or right of
possession of real property, the plaintiff or
defendant, when affirmative relief is claimed
in his answer, may record a notice of the
pendency of the action in the Office of the
Registry of Deeds of the province where the
property is situated.
When a Notice of Lis Pendens be
cancelled
Only upon order of the court, after proper
showing that the notice is:
a) For the purpose of molesting the adverse
party; or
b) Not necessary to protect the rights of the
party who caused it to be recorded.
3.H. SUMMONS
Summons is the writ or process of securing
appearance of the defendant (Sec. 1, Rule 14).
It is an order from the court directing the
defendant to file his responsive pleading
within the period provided for. Pursuant to a
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right to due process, it is to give notice to the
defendant that an action has been
commenced against him.
Alias Summons is issued when the first
summons has not produced its effect because
it is defective in form or manner of service,
and when issued, supersedes the first (Sec. 5,
Rule 14).
Issued when:
1. Returned without being served; or
2. Lost.
 However, upon the issuance and the
proper service of new summons x x x
whatever defect attended the service of
the original summons, was promptly and
accordingly cured. X x x A case should not
be dismissed simply because an original
summons was wrongfully served. It should
be difficult to conceive, for example, that
when a defendant personally appears
before a Court complaining that he had
not been validly summoned, that the case
against him should be dismissed. An alias
summons can be actually served on said
defendant. (BPI vs. Sps Santiago, G.R. No.
169116, March 28, 2007)
Summons Will Issue: Upon filing of the
complaint and the payment of the requisite
legal fees.
Who Issues: The Clerk of Court
Requisites of a Valid Summons:
 It shall be directed to the defendant.
 It must be signed by the clerk of court
under seal.
It must contain the following:
 The name of the court and the names of
the parties of the action.
 A direction that the defendant answer
within the time fixed by the law.
 A notice that unless the defendant
answers, plaintiff will take judgment by
default and may be granted the relief
applied for. (Sec. 2, Rule 14)

Note: 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.
Summons Served by Whom:
 Sheriff;
 Sheriff‘s deputy or other proper court
officer.
 For justifiable reasons, by any suitable
persons authorized by the court issuing
the summons.
 Also, a warden in case the person to be
served is a prisoner (see rules on
summons)
Effect of non-service or irregular service
of summons
Unless there is waiver, non-service or irregular
service renders all subsequent proceedings
and issuances null and void, including the
order of default, judgment by default, and the
order of execution, because jurisdiction over
the person of the defendant was not acquired.
 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. (Sec. 18,
Rule 14)
Admissible as evidence without offer.
Cases:
 Another summons must be served only
when the amended complaint alleges new
causes of action.
 The rule is that it is only when new causes
of action are alleged in an amended
complaint filed before the defendant has
appeared in court that another summons
must be served on the defendant with the
amended complaint. (De Dios vs. Court of
Appeals, G.R. No. 80491, August 12, 1992)
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3.H.1. Nature and Purpose of Summons
in Relation to Actions in Personam, in
Rem and Quasi in Rem
Nature of Summons
Issuance of summons is not discretionary on
the part of the clerk of court but it is a
mandatory requirement. (Section 1, Rule 14)
Purpose of Summons
In an Action in Personam:
 to notify the defendant of the against him;
 to acquire jurisdiction over his person
(Umandap vs. Sabio, 339 SCRA 243)
 In an action in personam, personal service
of summons or, if this is not possible and
he cannot be personally served,
substituted service, as provided in Rule
14, sections 7-8 is essential for the
acquisition by the court of jurisdiction over
the person of a defendant who does not
voluntarily submit himself to the authority
of the court. If defendant cannot be
served with summons because he is
temporarily abroad, but otherwise he is a
Philippine resident, service of summons
may, by leave of court, be made by
publication. Otherwise stated, a resident
defendant in an action in personam, who
cannot be personally served with
summons, may be summoned either by
means of substituted service in
accordance with Rule 14, section 8 or by
publication as provided in sections 17 and
18 of the same Rule. (Valmonte vs. CA, G.R.
No. 108538, January 22, 1996)
 As petitioner Lourdes A. Valmonte is a non
resident who is not found in the
Philippines, service of summons on her
must be in accordance with Rule 14,
section 17 (extraterritorial). Such service,
to be effective outside the Philippines,
must be made either (1) by personal
service; (2) by publication in a newspaper
of general circulation in such places and
for such time as the court may order, in
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which case a copy of the summons and
order of the court should be sent by
registered mail to the last known address
of the defendant; or (3) in any other
manner which the court may deem
sufficient. (Ibid)
 Term ―dwelling house‖ or ―residence‖ are
generally held to refer to the time of
service; hence, it is not sufficient to leave
the summons at the former‘s dwelling
house, residence or place of abode, as the
case may be. Dwelling house or residence
refers to the place where the person
named in the summons is living at the
time when the service is made, even
though he may be temporarily out of the
country at the time. It is, thus, the
service of the summons intended for the
defendant that must be left with the
person of suitable age and discretion
residing in the house of the defendant. X
x x The service of the summons on a
person at a place where he was a visitor is
not considered to have been left at the
residence or place or abode, where he has
another place at which he ordinarily stays
and to which he intends to return.
(Domagas vs. Jensen, Supra)
In an Action in Rem or Quasi in Rem:
 Service of summons in the manner
provided in section 17 (extraterritorial
service of summons) is not for the
purpose of vesting it with jurisdiction but
for complying with the requirements of
fair play or due process, so that he will be
informed of the pendency of the action
against him and the possibility that
property in the Philippines belonging to
him or in which he has an interest may be
subjected to a judgment in favor of the
plaintiff and he can thereby take steps to
protect his interest if he is so minded (PCI
Bank vs. Alejandro 533 SCRA 738).
 If the action is in rem or quasi in rem,
jurisdiction over the person of the
defendant is not essential for giving the
court jurisdiction so long as the court
acquires jurisdiction over the res. If the
defendant is a nonresident and he is not
68 CENTER FOR LEGAL EDUCATION AND RESEARCH
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found in the country, summons may be
served extraterritorially (Valmonte vs. CA.
Supra) in accordance with Rule 14, section
15, which provides:
 Section 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.
3.H.2. Voluntary Appearance
General Rule: Any form of appearance in
court, by the defendant, by his agent
authorized to do so, or by attorney, is
equivalent to service of summons.
Exception: Where such appearance is
precisely to object to the jurisdiction of the
court over the person of the defendant.
Note: 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.
 For the court to acquire jurisdiction over
the person of the defendant by voluntary
appearance, there must be an
―unequivocal submission‖ (and intentional

submission) of himself to the jurisdiction
of the court. So if it is equivocal then the
court does not acquire jurisdiction.
Jurisdiction over the person must be
seasonably raised, i.e., that it is pleaded in
a motion to dismiss or by way of an
affirmative defense. Voluntary appearance
shall be deemed a waiver of this defense.
The assertion, however, of affirmative
defenses shall not be construed as an
estoppel or as a waiver of such defense. X
x x It would be absurd to hold that
petitioner unequivocally and intentionally
submitted itself to the jurisdiction of the
court by seeking other reliefs to which it
might be entitled when the only relief that
it can properly ask from the trial court is
the dismissal of the complaint against it.
(Millenium Industrial Commercial Corporation
vs. Tan, G.R. No. 131724, February 28, 2000)
 Thus, a defendant who files a motion to
dismiss, assailing the jurisdiction of the
court over his person, together with other
grounds raised therein, is not deemed to
have appeared voluntarily before the
court. What the rule on voluntary
appearance—the first sentence of the
above-quoted rule—means is that the
voluntary appearance of the defendant in
court is without qualification, in which
case he is deemed to have waived his
defense of lack of jurisdiction over his
person due to improper service of
summons. (Garcia vs. Sandiganbayan, G.R.
No. 170122, October 12, 2009)
 Assuming arguendo that the service of
summons was defective, such flaw was
cured and respondents are deemed to
have submitted themselves to the
jurisdiction of the trial court when they
filed an Omnibus Motion to Admit the
Motion to Dismiss and Answer with
Counterclaim, an Answer with
Counterclaim, a Motion to Inhibit, and a
Motion for Reconsideration and Plea to
Reset Pre-trial. The filing of Motions
seeking affirmative relief -- to admit
answer, for additional time to file answer,
for reconsideration of a default judgment,
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and to lift order of default with motion for
reconsideration -- are considered
voluntary submission to the jurisdiction of
the court. Having invoked the trial court‘s
jurisdiction to secure affirmative relief,
respondents cannot -- after failing to
obtain the relief prayed for -- repudiate
the very same authority they have
invoked. (Oaminal vs. Castillo, G.R. No.
152776, October 8, 2003)
Effects of Voluntary Appearance
 Defendant‘s voluntary appearance in the
action shall be equivalent to service of
summons.
 Whatever defect there was in the mode of
service is deemed waived and the court
acquires jurisdiction over the person of
the defendant by his voluntary submission
thereto.
 The filing of motions seeking affirmative
relief, such as, to admit answer, for
additional time to file answer, for
reconsideration of a default judgment, and
to lift order of default with motion for
reconsideration, are considered voluntary
submission to the jurisdiction of the court.
 For purposes of the rule on summons, the
fact of doing business must first be
―established by appropriate allegations in
the complaint‖ and the court in
determining such fact need not go beyond
the allegations therein. A general
allegation, standing alone, that a party is
doing business in the Philippines does not
make it so. (Hongkong and Shanghai
Banking Corporation Limited vs. Catalan, 440
SCRA 498)
3.H.3.Personal Service (Service in
Person)
Summons shall be served by:
 Handing a copy thereof to the defendant
in person, or
 Tendering it to him, if he refuses to
receive and sign for it. (Sec. 6, Rule 14)
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Note: Under the present rule, Sec. 6, Rule 14
refers to the mode of service therein as
―Service in Person on defendant‖ not
―personal‖ service.
Service of summons upon Domestic
Corporation.
 Rule 14, Section 11. ―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.‖
 The purpose is to render it reasonably
certain that the corporation will receive
prompt and proper notice in an action
against it or to insure that the summons
be served on a representative so
integrated with the corporation that such
person will know what to do with the legal
papers served on him. In other words, ‗to
bring home to the corporation notice of
the filing of the action.‘ (EB Villarosa vs.
Benito, G.R. No. 136426, August 6, 1999).
Basic is the rule that a strict compliance
with the mode of service is necessary to
confer jurisdiction of the court over a
corporation. The officer upon whom
service is made must be one who is
named in the statute; otherwise, the
service is insufficient. (BPI vs. Sps Santiago,
supra)
Note: since service of summons on domestic
corporation is exclusive to the above, there
can be no substituted service.
 Since service upon it was invalid, the trial
court did not acquire jurisdiction over it.
Hence, all the subsequent proceedings in
the trial court are null and void, including
the order of default. (Sps. Mason vs. CA,
G.R. No. 144662. October 13, 2003)
Take note: AM No. 11-3-6-SC
New Rule: Amendment of Section 12, Rule
14 on Service of Summons upon Foreign
Private Juridical Entity
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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.
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."
3.H.4. Substituted Service
How made:
By leaving copies of the summons at the
defendant‘s residence with some person of
suitable age and discretion residing therein;
By leaving the copies at defendant‘s office or
regular place of business with some
competent person in charge thereof.
Requisites:
Personal service of summons is preferred to
substituted service. Only if the former cannot
be made promptly can the process server
resort to the latter. Moreover, the proof of
service of summons must:

a. indicate the impossibility of service of
summons within a reasonable time;
b. specify the efforts exerted to locate the
defendant; and
c. state that the summons was served upon
a person of sufficient age and discretion
who is residing in the address, or who is
in charge of the office or regular place of
business, of the defendant.
d. The pertinent facts proving these
circumstances be stated in the proof of
service or in the officer‘s return.
 The failure to comply faithfully, strictly
and fully with all the foregoing
requirements of substituted service
renders the service of summons
ineffective. X x x This is necessary
because substituted service is in
derogation of the usual method of service.
(Sps. Jose vs. Sps Boyon, G.R. No. 147369.
October 23, 2003)
Break down of the requirements to
effect a valid substituted service:
(2) Specific Details in the Return
(1) Impossibility of Prompt Personal
Service
 The party relying on substituted service or
the sheriff must show that defendant
cannot be served promptly or there is
impossibility of prompt service. Section 8,
Rule 14 provides that the plaintiff or the
sheriff is given a "reasonable time" to
serve the summons to the defendant in
person, but no specific time frame is
mentioned. x x x Under the Rules, the
service of summons has no set period.
However, when the court, clerk of court,
or the plaintiff asks the sheriff to make the
return of the summons and the latter
submits the return of summons, then the
validity of the summons lapses. The
plaintiff may then ask for an alias
summons if the service of summons has
failed. What then is a reasonable time for
the sheriff to effect a personal service in
order to demonstrate impossibility of
prompt service? To the plaintiff,
"reasonable time" means no more than
seven (7) days since an expeditious
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processing of a complaint is what a
plaintiff wants. To the sheriff, "reasonable
time" means 15 to 30 days because at the
end of the month, it is a practice for the
branch clerk of court to require the sheriff
to submit a return of the summons
assigned to the sheriff for service. The
Sheriff‘s Return provides data to the Clerk
of Court, which the clerk uses in the
Monthly Report of Cases to be submitted
to the Office of the Court Administrator
within the first ten (10) days of the
succeeding month. Thus, one month from
the issuance of summons can be
considered "reasonable time" with regard
to personal service on the defendant
X x x "Several attempts" means at
least three (3) tries, preferably
on at least two different dates. In
addition, the sheriff must cite why
such efforts were unsuccessful. It is
only then that impossibility of service
can be confirmed or accepted.
 X x x The date and time of the
attempts on personal service, the
inquiries made to locate the
defendant, the name/s of the
occupants of the alleged residence or
house of defendant and all other acts
done, though futile, to serve the
summons on defendant must be
specified in the Return to justify
substituted service. The form on
Sheriff‘s Return of Summons on
Substituted Service prescribed in the
Handbook for Sheriffs published by
the Philippine Judicial Academy
requires a narration of the efforts
made to find the defendant personally
and the fact of failure. Supreme Court
Administrative Circular No. 5 dated
November 9, 1989 requires that
"impossibility of prompt service should
be shown by stating the efforts made
to find the defendant personally and
the failure of such efforts," which
should be made in the proof of
service.
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(3) A Person of Suitable Age and
Discretion
 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. X x x 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 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.
(4) A Competent Person in Charge
 If the substituted service will be done
at defendant‘s office or regular place
of business, then it should be served
on a competent person in charge of
the place. Thus, the person on whom
the substituted service will be made
must be the one managing the office
or business of defendant, such as the
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president or manager; and such
individual must have sufficient
knowledge to understand the
obligation of the defendant in the
summons, its importance, and the
prejudicial effects arising from inaction
on the summons. Again, these details
must be contained in the Return.
(Manotoc vs. CA, G.R. No. 130974 August
16, 2006)
 A security guard is not a competent
person in charge in case of
substituted service of summons at the
defendant‘s office
 It is to be noted that in case of
substituted service, there should be a
report indicating that the person who
received the summons in the
defendant's behalf was one with
whom the defendant had a relation of
confidence, ensuring that the latter
would actually receive the summons.
(Chu vs. Mach Asia Trading, G.R. NO.
184333, April 1, 2013)
 Effort to serve the said summons
personally upon said defendants were
made, but the same were ineffectual
and unavailing on the ground that per
information of a person of sufficient
age and discretion working therein
who signed to acknowledge receipt ,
said defendants is always roving
outside and gathering news, thus,
substituted service was applied.
To warrant the substituted service of
the summons and copy of the
complaint, the serving officer must
first attempt to effect the same upon
the defendant in person. Only after
the attempt at personal service has
become FUTILE or impossible within a
reasonable time may the officer resort
to substituted service. (Macasaet vs. Co,
G.R. No. 156759, June 05, 2013)

3.H.5. Constructive Service (by
publication)
Conditions:
1. There must be leave of court.
2. The action is in rem or quasi in rem.
3. Defendant‘s identity or whereabouts are
unknown and cannot be ascertained by
diligent inquiry or defendant is a resident
temporarily out of the Philippines.
As a rule, summons by publication is available
only in actions in rem or quasi in rem. It is not
available as a means of acquiring jurisdiction
over the person of the defendant in an action
in personam.
Against a resident, the recognized mode of
service is service in person on the defendant
under Sec. 6 Rule 14. In a case where the
defendant cannot be served within a
reasonable time, substituted service will apply
(Sec. 7, Rule 14), but no summons by
publication which is permissible however,
under the conditions set forth in Sec. 14, Rule
14.
Against a non-resident, jurisdiction is acquired
over the defendant by service upon his person
while said defendant is within the Philippines.
As once held, when the defendant is a
nonresident, personal service of summons in
the state is essential to the acquisition of
jurisdiction over him (Banco Do Brasil, supra).
This is in fact the only way of acquiring
jurisdiction over his person if he does not
voluntarily appear in the action. Summons by
publication against a nonresident in an action
in personam is not a proper mode of service.
Publication is notice to the whole world that
the proceeding has for its object to bar
indefinitely all who might be minded to make
an objection of any sort against the right
sought to be established. It is the publication
of such notice that brings the whole world as
a party in the case and vests the court with
jurisdiction to hear and decide it (Alaban vs. CA,
GR 156021, Sept. 23, 2005).
3.H.5.A. Service upon a defendant where
his identity is unknown or his
whereabouts are unknown
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In any action where the defendant is
designated as an unknown owner, or the like,
or whenever his whereabouts are 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 times as the court may order. (Sec. 14,
Rule 14).
 The in rem and in personam distinction
was significant under the old rule
because it was silent as to the kind of
action to which the rule was applicable.
Because of this silence, the Court limited
the application of the old rule to in rem
actions only. This has been changed. The
present rule expressly states that it
applies ―[i]n any action where the
defendant is designated as an unknown
owner, or the like, or whenever his
whereabouts are unknown and cannot be
ascertained by diligent inquiry.‖ Thus, it
now applies to any action, whether in
personam, in rem or quasi in rem. (Santos
vs. PNOC, G.R. No. 170943, September 23,
2008)
 As a rule, service of summons by
publication must be complemented by
service of summons by registered mail to
the defendant‘s last known address. This
complementary service is evidenced 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.‖ (Ibid)
 To pursue the matter to its logical
conclusion, if a party declared in default is
entitled to notice of subsequent
proceedings, all the more should a party
who has not been declared in default be
entitled to such notice. But what happens
if the residence or whereabouts of the
defending party is not known or he cannot
be located? In such a case, there is
obviously no way notice can be sent to
him and the notice requirement cannot
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apply to him. The law does not require
that the impossible be done. (Ibid)
Rules on Summons on Defendant
1. Resident
a) Present in the Philippines
 Personal service (Rule 14, Sec. 6)
 Substituted service (Rule 14, Sec. 7)
 Publication, but only if
 his identity or whereabouts is
unknown (Rule 14, Sec. 14); and
 The action is in rem or quasi in rem
(Citizen Surety vs. Melencio-Herrera, 38
SCRA 369).
b) Absent from the Philippines
 Substituted service (Rule 14, Sec. 7)
 Extraterritorial service (Rule 14, Sec. 16
and 15); action need not be in rem or
quasi in rem (Valmonte vs. CA, Supra)
2.) Non-resident
a) Present in the Philippines
 Personal service (Sec. 6, Rule 14)
 Substituted service (Sec. 7, Rule 14)
 Absent from the Philippines
 Action in rem or quasi in rem – only
Extraterritorial service (Rule 14, Sec.
15);
 Action in personam, and judgment
cannot be secured by attachment
(e.g. action for injunction);
 Wait for the defendant to come to the
Philippines to serve summon;
Plaintiff cannot resort to extraterritorial service
of summons (Kawasaki Port Services vs. Amores,
199 SCRA 230).
3.H.5.B. Service upon residents
temporarily outside of the Philippines
Service of summons upon a resident of the
Philippines who is temporarily out of the
country, may, by leave of court be effected
out of the Philippines as under the rules on
extraterritorial service in Sec. 15, Rule 14 by
any of the following modes: (a) by personal
service as in Sec. 6, (b) by publication in a
news paper of general circulation together
with a registered mailing of a copy of the
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summons and the order of the court to the
last known address of the defendant, or (c) by
any manner the court may deem sufficient
under Sec. 16. (Montalban vs. Maximo, 22 SCRA
1070). This is because even if he is abroad, he
has a residence in the Philippines or a place of
business and surely, because of his absence,
he cannot be served in person within a
reasonable time.
 But, in the case of Montefalcon vs.
Vasquez, 2008, substituted service of
summons is the normal mode of service
against a temporarily absent resident.
 The normal method of service of
summons on one temporarily absent is by
substituted service because personal
service abroad and service by publication
are not ordinary means of summoning
defendants. Summons in a suit in
personam against a temporarily absent
resident may be by substituted service as
domiciliaries of a State are always
amenable to suits in personam therein. X
x x A man temporarily absent from this
country leaves a definite place of
residence, a dwelling where he lives, a
local base, so to speak, to which any
inquiry about him may be directed and
where he is bound to return. Where one
temporarily absents himself, he leaves his
affairs in the hands of one who may be
reasonably expected to act in his place
and stead; to do all that is necessary to
protect his interests; and to communicate
with him from time to time any incident of
importance that may affect him or his
business or his affairs. It is usual for such
a man to leave at his home or with his
business associates information as to
where he may be contacted in the event a
question that affects him crops up. If he
does not do what is expected of him, and
a case comes up in court against him, he
cannot in justice raise his voice and say
that he is not subject to the processes of
our courts. He cannot stop a suit from
being filed against him upon a claim that
he cannot be summoned at his dwelling
house or residence or his office or regular
place of business. (Montefalcon vs. Vasquez,
G.R. No. 165016, June 17, 2008)
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voluntarily submits to the jurisdiction of the

3.H.6. Extra-territorial service, when court by appearing therein through his counsel
allowed filing the corresponding pleading in the court.

When applicable (Sec. 15, Rule 14) Where the defendant has already been served
with summons on the original complaint, no
The defendant does not reside andis not further summons is required on the amended
found in the Philippines, and complaint if it does not introduce new causes
of action.
The action:
3.H.7. Service upon prisoners and minors
Affects the personal status of the plaintiff;
SERVICE UPON SERVICE UPON
Relates to or the subject of which is property PRISONERS MINORS
within the Philippines, in which the defendant Service shall be In the case of minor,
has or claims a lien or interest, actual or effected upon the service SHALL be made
prisoner by the on the minor AND his
contingent;
officer having the father or mother;
management of such
In which relief is demanded consists, wholly or jail (warden) who is On the minor AND legal
in part, of excluding the defendant from any deemed deputized as guardian, if there is no
interest therein; or a special sheriff for parent; or
the purpose.
The property of the defendant has been On the minor AND
attached in the Philippines. guardian ad litem
whose appointment
shall be applied for by
How effected:
the plaintiff.

Service in person on defendant with leave of

3.H.8. Proof of Service
court;
The proof of service of a summons shall be
Service by publication
made in writing by the server and shall set
forth the manner, place, and date of service;
With leave of court, serving also a copy to the
shall specify any papers which have been
defendant‘s last known address in the
served with the process and the name of the
Philippines by registered mail
person who received the same; and shall be
sworn to when made by a person other than a
Any other mode authorized by the court.
sheriff or his deputy. (Section 18, Rule 14)
Notes: Summons cannot be served by mail. If
Proof of service by publication
one or all of the requirements have not been
complied with, the service of summons shall
If the service has been made by publication,
be invalid.
service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of
In all actions strictly in personam, personal
the editor, business or advertising manager, to
service of summons on the defendant is
which affidavit a copy of the publication shall
essential to acquire jurisdiction over his
be attached, and by an affidavit showing the
person, hence summons by publication is null
deposit of a copy of the summons and order
and void.
for publication in the post office, postage
prepaid, directed to the defendant by
Jurisdiction cannot be acquired over the
registered mail to his last known address. (Sec.
defendant without service of summons, even 19, Rule 14)
if he knows of the case against him, unless he

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3.I. MOTIONS 4. Complies with 3-day notice rule.

5. Have proof of service of motions to
General Rule: All motions must be in writing. determine compliance with 3-day notice.

Exception: 3.I.1.C. Contents and forms of motions

a) Those made in open court; or
b) Those made in the course of the hearing
or trial
c) Set for hearing (by the applicant).
d) Motions which the court may act upon
without prejudice to the rights of the
adverse party.
3.I.1. Motions in general
1) It shall state the relief sought and the
grounds upon which it is based.
2) The grounds upon which it is based. (If
required by the Rules, the motion shall be
accompanied by affidavits and other
papers).
3.I.1.D. Notice of hearing and hearing of
motions

3.9.1.A. Definition of a motion Requisites of notice of hearing

A motion is an application for relief other than  Addressed to all parties concerned.
by a pleading. (Sec. 1, Rule 15)  Specify the time and date of the hearing
which must be set not later than 10 days
3.I.1.B. Motion vs. Pleadings after the filing of the motion.

MOTION PLEADING  A motion must contain a notice of hearing,

A motion is an A pleading is a written
application for relief statement of the
other than a pleading respective claims and
(Sec. 1, Rule 15) defenses of the parties
submitted to the court for
Its purpose is to appropriate judgment
submit a claim or (Sec. 1, Rule 6).
defense for
appropriate judgement It may be in the form of a
complaint, counterclaim,
Always filed before cross-claim, third-party
judgment must be complaint, or complaint-
written in-intervention, answer or
reply (Sec. 2, Rule 6).
Its purpose is to apply for
an order not included in
the judgment
May me oral when made
in open court or in the
course of hearing or trial
Requirements of a valid litigated motion
1. In writing.
2. Contains the grounds or legal basis relied
upon, relief sought, and whenever
appropriate, must include supporting
affidavits and documents.
3. Set for hearing not later than 10 days
after filing the motion.
failure of which will not toll the running of
the period. (Dela Pena v. Dela Pena, 258
SCRA 298).
Hearing of Motion
3-day Notice Rule
General Rule: Every written motion is
required to be heard. The notice of the
hearing thereof shall be served in such a
manner as to ensure receipt by the other
party at least 3 days before date of hearing,
unless the court for good cause sets the
hearing for a shorter notice.
Exceptions:
 Ex parte motions;
 Urgent motions;
 Motions agreed upon by the parties to
be heard on shorter notice or jointly
submitted by the parties; and
 Motions for summary judgment (must
be served at least 10 days before its
hearing).
While ex parte filing a motion may be allowed
and is an exception to the 3-day notice rule, it

76 CENTER FOR LEGAL EDUCATION AND RESEARCH


does not necessarily mean that the hearing
thereof shall be dispensed with.
 ―The general rule is that the three-day
notice requirement in motions under
Sections 4 and 5 of the Rules of Court is
mandatory. It is an integral component of
procedural due process. X x x Motion that
does not comply with the requirements of
Sections 4 and 5 of Rule 15 of the Rules
of Court is a worthless piece of paper x x
x .―Being a fatal defect, in cases of
motions to reconsider a decision, the
running of the period to appeal is not
tolled by their filing or pendency.‖ X x x
Nevertheless, the three-day notice
requirement is not a hard and fast rule.
When the adverse party had been
afforded the opportunity to be heard, and
has been indeed heard through the
pleadings filed in opposition to the motion,
the purpose behind the three-day notice
requirement is deemed realized.The three-
day notice rule is not absolute. X x x The
three-day notice required by the Rules is
not intended for the benefit of the
movant. Rather, the requirement is for the
purpose of avoiding surprises that may be
sprung upon the adverse party, who must
be given time to study and meet the
arguments in the motion before a
resolution of the court. Principles of
natural justice demand that the right of a
party should not be affected without
giving it an opportunity to be heard.
The test is the presence of opportunity to
be heard, as well as to have time to study
the motion and meaningfully oppose or
controvert the grounds upon which it is
based. x x x
It is undisputed that the hearing on the
motion for reconsideration filed by the
spouses Cabrera was reset by the RTC
twice with due notice to the parties; it was
only after 2 months that the motion was
actually heard by the RTC. At that time,
(more than two months had passed) since
the respondent received a copy of the said
motion for reconsideration. X x x The
respondent was thus given sufficient time
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to study the motion and to enable him to
meet the arguments interposed
therein. (Cabrera vs. Ng, G.R. No. 201601,
March 12, 2014)
3.I.1.E. Omnibus Motion Rule
A motion attacking a pleading, order,
judgment or proceeding shall include all
objections then available, and all objections
not included shall be deemed waived subject
to the provisions of Rule 9, Sec.1 in relation to
Rule 15 Sec. 8 of the Rules of Court
Exceptions to the Omnibus Motion Rule
1. The court has no jurisdiction over the
subject matter of the case
2. That there is an action pending between
the same parties for the same cause
3. That the action is barred by a prior
judgment or
4. That the action is barred by the statute of
limitations.
 Petitioners raised the ground of defective
verification and certification of forum
shopping only when they filed their
second motion to dismiss, despite the fact
that this ground was existent and
available to them at the time of the filing
of their first motion to dismiss. Absent any
justifiable reason to explain this fatal
omission, the ground of defective
verification and certification of forum
shopping was deemed waived and could
no longer be questioned by the petitioners
in their second motion to dismiss. X x x
Moreover, contrary to petitioners'
assertion, the requirement regarding
verification of a pleading is formal, not
jurisdictional. Such requirement is simply a
condition affecting the form of the
pleading, and non-compliance with which
does not necessarily render the pleading
fatally defective.
X x x Section 8, Rule 15 of the Rules of
Court defines an omnibus motion as a
motion attacking a pleading, judgment or
proceeding. A motion to dismiss is an
omnibus motion because it attacks a
pleading, that is, the complaint. For this
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reason, a motion to dismiss, like any other
omnibus motion, must raise and include
all objections available at the time of the
filing of the motion because under Section
8, "all objections not so included shall be
deemed waived." As inferred from the
provision, only the following defenses
under Section 1, Rule 9, are excepted
from its application: [a] lack of jurisdiction
over the subject matter; [b] there is
another action pending between the same
parties for the same cause
(litispendentia); [c] the action is barred by
prior judgment (res judicata); and [d] the
action is barred by the statute of
limitations or prescription. (Sps De Guzman
vs. Ochoa, G.R. No. 169292, April 13, 2011)
Motion for leave
A motion for leave to file pleading shall be
accompanied by the pleading or motion
sought to be admitted. (Sec. 9, Rule 15)
Any motion that does not comply with Section
4 (Hearing on Motion), Section 5 (Notice of
Hearing), and Section 6 (Proof of Service) is a
mere scrap of paper, and should not be
accepted for filing. If such is filed, it is not
entitled to judicial cognizance and does not
affect any reglementary period involved for
the filing of the requisite pleading.
3.I.1.F. Litigated and ex-parte motions
Non-Litigated
Litigated Motion
Motion
(De Parte)
(Ex-Parte)
A motion made A motion with notice to
without the presence the adverse party to
or a notification to give an opportunity to
the other party oppose; will affect the
because the question rights of the parties.
presented is not
debatable.
3.I.1.G. Pro-forma motions
A motion pro forma intended merely to delay
the proceedings and it shall not interrupt or
suspend the period of time for the perfection
of an appeal.
3.I.2. Motion for Bill of Particulars
78 CENTER FOR LEGAL EDUCATION AND RESEARCH
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Bill of Particulars
Bill of Particulars is a complementary
procedural document consisting of an
amplification or more particularized outline of
a pleading.
3.I.2.A. Purpose and when applied for
Purpose
To seek an order from the court directing the
pleader to submit a bill of particular which
avers matters with sufficient definiteness or
particularity to enable the movant to properly
prepare his responsive pleading.
 An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant is
to move for a bill of particulars or avail of
the proper mode of discovery. (Galeon vs.
Galeon, G.R. No. L-30380, February 28, 1973)
Before responding to a pleading, a party
may move 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.
Purpose: To aid in the preparation of a
responsive pleading.
 Motion for Bill of Particulars must be filed
within the reglementary period for the
filing of a responsive pleading. If sufficient
in form and substance, the filing of the
motion will interrupt the time to plead.
 The Bill of Particular be filed either in a
separate motion or in an amended
pleading it may also be granted in whole
or in part.
 A Bill of Particular becomes part of the
pleading that it supplements.
 The function of the bill of particular is not
to obtain evidentiary matter. (Salita vs.
Magtolis GR. No. 106429 June 13, 1994)

3.I.2.B. Actions of the court
Upon 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. (Sec. 2, Rule 12)
3.I.2.C. Compliance with the order and
effect of noncompliance
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. (Sec 3, Rule 12)
Effect of noncompliance
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. (Sec. 4, Rule 12)
3.I.2.D. Effect on the period to file a
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. (Sec. 5, Rule 12)
Effect if motion for bill of particulars is
granted
The movant can wait until the Bill of
Particulars is served on him and then he will
have the balance of the reglementary period
within which to file his responsive pleading.
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Effect if motion for bill of particulars is
denied
The movant still has such balance of the
reglementary period to file his responsive
pleading.
Note: Whether the Motion for Bill of
Particulars is granted or not, the moving shall
have at least 5 days to file his responsive
pleading, counted from the date of the receipt
of the court order.
Effect of non-compliance with the order
for bill of particulars or in case of
insufficient compliance there with
The court may order the striking out of the
pleading or the portion thereof to which the
order is directed or make such other order as
may deem just.
If non-compliance is by the plaintiff, his
complaint will be stricken off and dismissed;
unless otherwise ordered by the court.
If non-compliance is by the defendant, his
answer will be stricken off and his
counterclaim dismissed, and he will be
declared in default upon motion of the
plaintiff.
Note: Rules on answer to an amended
complaint shall apply to amended
counterclaim, amended cross claim, amended
third (fourth, etc) party complaint, and
amended complaint in intervention.
3.I.3. Motion to Dismiss
Motion to Dismiss is a motion which is
generally interposed before trial to attack the
action on the basis of the presence of any of
the grounds enumerated under Section 1, Rule
16 of the Rules of Court. It is not a responsive
pleading.
When to File:
General Rule: A motion to dismiss must be
filed within the time for but BEFORE filing an
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answer to the complaint or pleading asserting
a claim.
Exceptions: It can be filed after the answer
on the following:
1. Lack of jurisdiction over the subject
matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
 It must comply with the requirements
of motions under Rule 15: it MUST be
in writing, with hearing and with
notice.
 Movant shall present all the evidence
available; otherwise it is waived.
(Omnibus Motion Rule)
 Plaintiff can avail of Rule 16 only as
regard to the counterclaim.
 A Motion to Dismiss is not a
responsive pleading.
 A judge cannot defer resolution of a
motion to dismiss
General types of a motion to dismiss
 Motion to dismiss before answer under
Rule 16.
 Motion to dismiss under Rule 17, upon:
 Notice by plaintiff;
 Motion of plaintiff; or
 Due to fault of plaintiff.
5. Motion to dismiss on demurrer to evidence
under Rule 33.
6. Motion to dismiss the appeal filed either in
lower court under Sec. 13, Rule 41 or in
appellate court under Sec. 1, Rule 50
3.I.3.A. Grounds
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:
1. That the court has no jurisdiction over
the person of the defending party;
2. That the court has no jurisdiction over
the subject matter of the claim;
3. That venue is improperly laid;
80 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
4. That the plaintiff has no legal capacity
to sue;
5. That there is another action pending
between the same parties for the same
cause;
6. That the cause of action is barred by a
prior judgment or by the statute of
limitations;
7. That the pleading asserting the claim
states no cause of action;
8. That the claim or demand set forth in
the plaintiff's pleading has been paid,
waived, abandoned, or otherwise
extinguished;
9. That the claim on which the action is
founded is enforceable under the
provisions of the statute of frauds; and
10. That a condition precedent for filing the
claim has not been complied with (Sec.
1, Rule 16).
Requisites of litis pendentia
 Identity of parties;
 Identity of Rights asserted and relief
prayed for;
 Identity of the two cases such that
judgment in one, regardless of which
party is successful, would amount to res
judicata in the other.
Notes: Given the pendency of two actions,
the following are the relevant considerations in
determining which action should be dismissed.
Date of filing:
 Whether the action sought to be
dismissed was filed merely to pre-empt
the latter action or to anticipate its filing
and lay the basis for its dismissal; or
 Whether the action is the appropriate
vehicle for litigating the issues between
the parties.
Note: Motion to dismiss may be filed in either
suit.
Requisites of Res Judicata
a) Previous final judgment.
b) Judgment on the merits.
c) The court that rendered the judgment had
jurisdiction.
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d) There must be between the first and

second action. Prescription distinguished from Laches

 identity of parties. Prescription Laches

 identity of subject matter, and Fact of delay Effect of delay
 identity of cause of action. Matter of status of
Question of inequity
time
Aspects: Statutory Not statutory
Applies in law Applies in equity
Barred by Former Judgment: when Based on Fixed time Not based in fixed time
between the first cause where the judgment is
invoked, there is identity of parties, subject
Actions that the Court can take Upon
matter and cause of action.
Filing of a Motion to Dismiss:
Conclusiveness of Judgment: when there
Either dismiss the action, deny the Motion to
is identity of parties but not cause of action,
Dismiss, or order the amendment of the
the judgment being conclusive in the second
pleading
case only as to those matters actually and
directly controverted and determined, not as
An order denying the motion is interlocutory
to other matters involved therein.
and not appealable.
There could be res judicata without a trial,
An order granting the Motion to Dismiss is a
such as in a judgment on the pleadings, a
final order and is appealable.
summary judgment or an order of dismissal
for failure to prosecute.
If the order of dismissal is not an adjudication
of the merits, the dismissal is not a bar to
Failure to state cause of action
another action when the circumstances
change and warrant the re-filing and
When the ground for dismissal is that the
prosecution.
complaint states no cause of action, such fact
can be determined only from the facts alleged
If the order denying the motion is tainted with
in the complaint.
grave abuse of discretion, the remedy is to file
either certiorari or prohibition.
Where the plaintiff has not exhausted all
administrative remedies, the complaint not
Time to Plead
having alleged such fact of exhaustion, the
same may be dismissed for lack of cause of
If the motion is denied, the movant, is granted
action.
only the balance of the reglementary period to
which he was entitled at the time he filed his
Note: An action cannot be dismissed on the
Motion to Dismiss, counted from his receipt of
ground that the complaint is vague or
the denial order, but not less than 5 days in
indefinite. The remedy of the defendant is to
any event.
move for a bill of particulars or avail of the
proper mode of discovery.
If the pleading is ordered to be amended, he
shall file his answer within the reglementary
Non-compliance with PD 1508 (Katarungang
period counted from service of amended
Pambarangay Law) is a ground for motion to
pleading, unless the court provides for longer
dismiss for failure to comply with condition
period.
precedent.

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3.I.3.B. Resolution of Motion
After the hearing, the court may either:
a) dismiss the action
b) deny the Motion to Dismiss, or
c) order the amendment of the pleading
 An order denying the motion is
interlocutory and not appealable.
 An order granting the Motion to
Dismiss is a final order and is
appealable.
Note: The court shall not defer the resolution
of the motion for the reason that the ground
relied on is indubitable.
In every case, the resolution shall state clearly
and distinctly the reasons thereof.
3.I.3.C. Remedies of plaintiff when the
complaint is dismissed
If without prejudice the order of dismissal is
not an adjudication of the merits, the
dismissal is not a bar to another action when
the circumstances change and warrant the re-
filing and prosecution.
If with prejudice (dismissal based on the
grounds of (1) res judicata, (2) prescription,
(3) extinguishment of the claim or demand,
and (4) unenforceability under the Statutes of
Fraud), the remedy is appeal.
3.I.3.D. Remedies of the defendant when
motion is denied
1) File an answer and prceed with the trial;
2) If judgment has been rendered and
decision is adverse, appeal and raise as
erro the denial of the motion; and
3) If the order denying the motion is tainted
with grave abuse of discretion, the remedy
is to file either certiorari or prohibition.
3.I.3.E. Effect of dismissal of complaint
on certain grounds
General Rule: The action or claim may be re-
filed.
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Exception: The action cannot be re-filed if it
was dismissed on any of the following
grounds:
 Res judicata;
 Prescription;
 Extinguishment of the claim;
 Unenforceability under the Statute of
Frauds.
In these instances, the remedy of the plaintiff
is appeal. (Sec. 5, Rule 16)
3.I.3.F. When grounds pleaded as
affirmative defenses
If no motion to dismiss has been filed, any of
the grounds under Section 1 of Rule 16,
including improper venue, may be pleaded as
an affirmative defense in the answer. In the
discretion of the court, a preliminary hearing
may be had thereon as if a Motion to Dismiss
had been filed.
Note: If the defendant would want to file a
counterclaim, he should allege the grounds of
a motion to dismiss as affirmative defenses in
his answer with a counterclaim.
The dismissal of the complaint shall be
without prejudice to the prosecution in the
same or separate action of a counterclaim
pleaded in the answer.
The 2nd paragraph has now clarified the effect
of the dismissal of the complaint upon a
counterclaim duly pleaded in the action.
3.I.3.G. Bar by Dismissal
Subject to the right of appeal, an order
granting a motion to dismiss based on res
judicata, prescription, extinguishment of the
claim, unenforceability under Statute of
Frauds, shall bar the refiling of the same
action or claim. (Section 5, Rule 16)
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3.I.3.H. Distinguished from demurrer to without the order of confirmation, the

evidence under Rule 33 dismissal does not become effective.

Motion to Motion to Dismiss What causes plaintiff‘s loss of the right to

Dismiss under under Rule 33 effect dismissal by mere notice is not the
Rule 16 defendant‘s act of filing the answer but the
Grounded on any Based on insufficiency of service of such answer upon him.
of those evidence.
The dismissal as a matter of right ceases
enumerated under
Rule 16.
when an answer or a motion for summary
May be filed by a May be filed ONLY by the judgment is served on the plaintiff and not
defending party defendant against the when the answer or the motion is filed with
against whom a complaint of the plaintiff. the court. thus, if a notice of dismissal is filed
claim is asserted in by the plaintiff even after an answer has been
the action. filed in court but before the responsive
Filed before Filed after plaintiff rested pleading has been served on the plaintiff, the
responsive its case. (Completion of notice of dismissal is still a matter of right.
pleading (answer) Evidence) (Riano, 2007, p. 224)
is made by the
defendant.
General Rule:
If denied, the If denied, defendant may
defendant files an present evidence.
answer or else he If granted, plaintiff appeals Dismissal upon notice by the plaintiff is
may be declared in and the order of dismissal without prejudice. It does not constitute res
default. is reversed, the defendant judicata.
If granted, plaintiff loses his right to present
may appeal or if a evidence. Exceptions: Where the notice of dismissal so
subsequent case is provides.
not barred, he may
re-file the case.
Two-Dismissal Rule:

3.J. DISMISSAL OF ACTIONS Where the plaintiff has previously dismissed

Kinds of dismissal
(Rule 17)
1. Dismissal upon notice by plaintiff (Sec. 1)
2. Dismissal upon motion of plaintiff (Sec. 2)
3. Dismissal due to fault of plaintiff (Sec. 3)
4. Dismissal of counterclaim, cross-claim or
third-party complaint
3.J.1. Dismissal upon notice by plaintiff;
two- dismissal rule
Dismissal is effected not by motion but by
mere notice of dismissal, which is a matter of
right before the service of:
1. The answer; or
2. A motion for summary judgment.
Upon such notice being filed, the court shall
issue an order confirming the dismissal
the same case in a court of competent
jurisdiction.
The two-dismissal rule requires that the court
grant both dismissals. The second dismissal
shall be considered as adjudication on the
merits.
Exception to the exception: When the
prior dismissal is for lack of jurisdiction.
If the plaintiff files a notice of dismissal
providing therein a reason that prevents the
refilling of the complaint, the dismissal must
be deemed one with prejudice. This happens
when the notice provides that the plaintiff
recognizes the fact of prescription or
extinguishment of the obligation of the
defendant or for reasons stated in Sec. 5 of
Rule 16. (Riano, 2007, p. 225)

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 Where such notice is premised on the fact Dismissal under this Rule is without
of payment by the defendant of the claim prejudice, except:
involved, even if the notice of dismissal
does not provide that it is with prejudice  When otherwise stated in the motion to
(Serrano vs. Cabrera, 80 SCRA 100) dismiss; or
 When stated to be with prejudice in the
order of the court.
3.J.2. Dismissal upon motion by plaintiff; Note: The approval of the court is necessary
effect on existing counterclaim in the dismissal or compromise of a class suit.
Under this section, the dismissal of the Difference between Section 2 and
complaint is subject to the discretion of the Section 3
court and upon such terms and conditions as
may be just. Dismissal upon Dismissal due to
motion of plaintiff. fault of plaintiff.
An answer has already been filed. (Section 2) (Section 3)
Dismissal is at the Dismissal is NOT
The plaintiff can move for the dismissal of the instance of the plaintiff. procured by plaintiff
entire case provided that the defendant has though justified by
not filed a counterclaim (compulsory or causes imputable to
permissive) and the court deems the dismissal him.
proper. The compulsory counterclaim survives Dismissal is a matter of Dismissal is a matter
procedure, without of evidence,an
the dismissal of the complaint.
prejudice unless adjudication on the
otherwise stated in the merits.
Where the plaintiff moves for the dismissal of order of the court or on
the complaint to which a counterclaim has plaintiff‘s motion to
been interposed, the dismissal shall be limited dismiss his own
to the complaint. complaint.
Dismissal is without Dismissal is without
Such dismissal shall be without prejudice to prejudice to the right of prejudice to the right
the right of the defendant to either: the defendant to of the defendant to
prosecute his prosecute his
counterclaim in a counterclaim on the
Prosecute his counterclaim in a separate separate action unless same or separate
action. within 15days from action.
notice of the motion he
The court shall render the corresponding order manifests his intention
granting and reserving his right to prosecute to have his
his claim in a separate complaint. counterclaim resolved
in the same action.
To have the same resolved in the same action.
3.J.3. Dismissal due to the fault of the
1. Defendant must manifest such preference plaintiff
to the trial court within 15 days from
notice to him of plaintiff‘s motion to Complaint may be dismissed:
dismiss.
 Upon motion of the defendant; or
Note: These alternative remedies of the  Upon court‘s own initiative.
defendants are available to him regardless of
whether his counterclaim is compulsory or
permissive.

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Instances when the court can dismiss
the case motu proprio:
 The plaintiff fails to appear on the date of
the presentation of his evidence-in-chief
on the complaint; (Sec. 3, Rule 17)
 Plaintiff fails to prosecute his action for an
unreasonable length of time; (Sec. 3, Rule
17)
 Plaintiff fails to comply with the Rules or
the orders of the court; (Sec. 3, Rule 17)
 Lack of jurisdiction;
 In cases of Summary Procedure
 Unjustifiable inaction on the part of
plaintiff to have the case set for trial is a
ground for dismissal for failure to
prosecute.
 The dismissal is with prejudice unless
otherwise declared by the court. It shall
have the effect of adjudication upon the
merits of the case.
3.J.4. Dismissal of counterclaim, cross-
claim or third-party complaint
 The provisions of Rule 17 shall apply to
the dismissal of any counterclaim, cross-
claim, or 3rd party complaint. A voluntary
dismissal by the claimant by notice as in
Sec 1 of the said rule shall be made
before a responsive pleading is served or,
if there is none, before the introduction of
evidence at the trial or hearing.
A dismissal or discontinuance of an action
operates to annul orders; rulings or
judgments previously made in a case, as
well as all proceedings had in connection
therewith and renders all pleadings
ineffective. (Servicewide Specialist, Inc. VS
CA, GR No. 110597, May 8, 1996)
3.K. PRE-TRIAL
3.K.1. Concept of Pre-Trial
Pre-trial is a mandatory conference and
personal confrontation between the parties in
the presence of their respective counsel and
the judge.
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After the last pleading has been served and
filed, it shall be the duty of the plaintiff to
promptly move ex-parte that the case be set
for pre-trial.
3.K.2. Nature and Purpose
What the court shall consider during the pre-
trial conference:
1) Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution.
2) Simplification of issues.
3) Necessity or desirability of amendments of
the pleadings.
4) Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof.
5) Limitation on the number of witnesses.
6) Advisability of a preliminary reference of
issues to a commissioner.
7) Propriety of rendering judgment on the
pleadings, or summary judgment or of
dismissing the action should a valid
ground be found to exist.
8) Advisability or necessity of suspending the
proceedings.
9) Such other matters as may aid in the
prompt disposition of the action.
3.K.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. (Sec. 3, Rule 18)
Sending a notice of pre-trial stating the date,
time and place of pre-trial is mandatory. Its
absence will render the pre-trial and
subsequent proceedings void (Maxima v. Tecson,
G.R. No. 145276, November 29, 2005.)
3.K.4. Appearance of parties; effect
offailure to appear
It is mandatory on the plaintiff, defendant and
their counsels to appear at the pre-trial.
A special power of attorney is required before
a lawyer can enter into any amicable
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settlement; the SPA must specifically state the
authority to enter into an amicable settlement.
Note: In case of juridical person, a board
resolution is required. The appearance of the
counsel without the SPA shall render the
absent plaintiff non-suited and the defendant
may move for the dismissal of the case.
It must be filed with the court and served on
the adverse party at least 3 days before the
date of the pre-trial
Records of pre-trial
The proceedings in the pre-trial shall be
recorded.

Effects of non-appearance The pre-trial order shall be issued within ten

Of the plaintiff: it is a cause for the
dismissal of the action, with prejudice, unless
otherwise ordered by the court
Of the defendant: it is a cause to allow the
plaintiff to present evidence ex parte and the
court to render judgment on the basis thereof
Note: There is no more declaration of default
in case one of the parties is absent, the court
may proceed in the rendition of judgment or
presentation of evidence. The remedy of a
plaintiff who is non-suited is to appeal.
(10) days after the termination of the pre-trial
(A.M. 03-1-09-SC)
The order shall recite in detail the matters
taken up in the conference.
If the action proceeds to trial, the order shall
explicitly define and limit the issues to be
tried.
The contents of the order shall control the
subsequent courses of the action, unless
modified before trial to prevent manifest
injustice.

3.K.5 Pre-trial brief; effect of failure to Note: There is no need to go to trial if only
file legal issues will be presented. It is presumed
that the judge and the parties know the law.
The pre-trial brief shall contain the
following: 3.K.6. Distinction between pre-trial in
civil case and pre-trial in criminal case
a) Statement of willingness to enter into
amicable settlement or alternative modes CIVIL CASES CRIMINAL CASES
of dispute resolution, indicating the Mandatory. Mandatory.
desired terms. C 1. Possibility of an 1. Plea bargaining
b) A summary of admitted facts and O amicable
N settlement or of a 2. Stipulation of facts
proposed stipulation of facts.
S submission to
c) The issues to be tried or resolved. I alternative modes 3. Marking for
d) The documents and exhibits to be D of dispute identification of
presented, stating its purpose. E resolution. evidence of the
e) A manifestation of their having availed or R parties
their intention to avail themselves of A 2. Simplification of
discovery procedures or referral to T issues. 4. Waiver of
commissioners; and I objections to
f) The number and names of witnesses and O 3. Necessity or admissibility of
N desirability of evidence
the substance of their respective
amendments of the
testimonies. pleadings. 5. Modification of the
order of trial if the
Effect of failure to file 4. Possibility of accused admits the
obtaining charge but interposes
Failure to file a pre-trial brief has the same stipulations or a lawful defense
effect as failure to appear at the pre-trial. admissions of facts
and of documents 6. Such matters as

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CIVIL CASES CRIMINAL CASES comes into the case, in order to protect his
Mandatory. Mandatory. right or interpose his claim.
to avoid will promote a fair
unnecessary proof. and expeditious trial It is a remedy by which a third party, not
of criminal and civil originally impleaded in the proceedings,
5. Limitation on the aspects of the case.
becomes a litigant therein to enable him to
number of
witnesses. protect or preserve a right or interest which
may be affected by such proceeding. (Riano
6. Advisability of a 2009).
preliminary
reference of issues Note: An intervention is always supplemental
to a commissioner. to an existing litigation. A dismissal of the
principal action will give rise to the denial of a
7. Propriety of pending motion for intervention.
rendering judgment
on the pleadings, Who may intervene
or summary
(Sec. 1, Rule 19)
judgment or of
dismissing the
a) One who has interest in the matter in
action should a
valid ground be litigation;
found to exist. b) One who has legal interest in the success
of either of the parties:
8. Advisability or c) One who has an interest against both
necessity of parties;
suspending the d) One who is so situated as to be adversely
proceedings. affected by the distribution or disposition
of property in the custody of the court or
9. Such other
of its officer.
matters as may aid
in the prompt
disposition of the  For a person to intervene in a suit, the
N 1. Of the plaintiff: it 1. If counsel for the interest, must be actual and material, on a
O is a cause for the accused or the matter in litigation, and of such direct and
N dismissal of the prosecutor does not immediate character that the intervenor
A action, with appear at the pre-trial will either gain or lose by the direct legal
P prejudice, unless conference and does operation and effect of the judgment.
P otherwise ordered not offer an
E by the court acceptable excuse for
 The legal interest of the party must be
A this lack of
R 2. Of the cooperation, the court
direct, concrete and inchoate. (Pagtalunan
A defendant: it is a may impose proper vs. Tamayo, G.R no. 58168, March 19, 1990)
N cause to allow the sanctions or penalties
C plaintiff to present The intervenor may only intervene with leave
E evidence ex parte of court. Admittance of intervention is a
and the court to matter of judicial discretion.
render judgment
on the basis Motion for intervention can stand on its own.
thereof The dismissal of the principal case does not
necessarily carry with it the dismissal of
3.L. INTERVENTION motion for intervention.

Intervention is the remedy by which a third Pleadings in intervention (Sec. 3, Rule 19)
person, not originally a party to the suit, but
claiming an interest in the subject matter,

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1. Complaint-in-intervention - if it asserts
claim against either or all of the original
parties.
2. Answer-in-intervention – if it joins the
defendant.
A complaint-in-intervention is an initiatory
pleading (A.M. 04-94). As such, it is subject to
the requirements on the payment of docket
fees and certification against forum shopping.
3.L.1 Requisites for Intervention
A person should have a legal interest
either:
1) In the matter in litigation; or
2) In the success of either party; or
3) Against both parties; or
4) May be adversely affected by a
distribution/disposition of property which
is in the court‘s or its officer‘s custody;
5) One who seeks to intervene should seek
the court‘s permission;
The court would have to consider whether or
not the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties; and the court must also
determine whether or not the intervenor‘s
rights may be fully protected in a separate
proceeding. (Section 1, Rule 19)
 To warrant intervention under Rule 19 of
the Rules of Court, two requisites must
concur: (1) the movant has a legal
interest in the matter in litigation; and (2)
intervention must not unduly delay or
prejudice the adjudication of the rights of
the parties, nor should the claim of the
intervenor be capable of being properly
decided in a separate proceeding. (Office
of the Ombudsman vs. Sison, G.R. No. 185954,
February 16, 2010). Section 1 of Rule 19 of
the Rules of Court provides that a person
who has a legal interest in the matter in
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
property in the custody of the court or of
an officer thereof may, with leave of
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court, be allowed to intervene in the
action. Conversely, a person who is not a
party in the main suit cannot be bound by
an ancillary writ, such as a preliminary
injunction. Indeed, he cannot be affected
by any proceeding to which he is a
stranger. Thus, a person not a party to
the proceedings in the trial court or in the
CA cannot maintain an action for certiorari
in the Supreme Court to have the
judgment reviewed. Stated differently, if a
petition for certiorari or prohibition is filed
by one who was not a party in the lower
court, he has no standing to question the
assailed order. (Fernandez vs. CA, A.M. OCA
IPI No. 12-201-CA-J, February 19, 2013)
 A court‘s power to allow or deny
intervention, albeit discretionary in nature,
is circumscribed by the basic demand of
sound judicial procedure that only a
person with interest in an action or
proceeding may be allowed to intervene.
Otherwise stated, a court has no authority
to allow a person, who has no interest in
an action or proceeding, to intervene
therein. Consequently, when a court
commits a mistake and allows an
uninterested person to intervene in a
case—the mistake is not simply an error of
judgment, but one of jurisdiction.
(Añonuevo vs. Intestate Estate of Jalandoni,
G.R. No. 178221, December 1, 2010)
3.L.2. Time to Intervene
General Rule: At any time before rendition
of judgment by the trial court. (Sec. 2, Rule 19)
Exceptions:
a) Even after judgment, where the
intervenors are indispensable parties that
without them no final adjudication of the
controversy could be made. (Rodriguez vs.
CA, G.R. No. 184589, June 13, 2013);
b) When the Republic is the intervenor (Lim v.
Pacquing, G.R. 115044, January 27, 1995);
c) To protect public interest (Pinlac vs. CA,
G.R. No. 91486. September 10, 2003);
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INTERVENTI0N INTERPLEADER
Factors to be considered by the court already original sued precisely to implead
parties to the them.
Whether or not the intervention will unduly pending suit.
delay or prejudice the adjudication of the
rights of the original parties. 3.M. SUBPOENA

Whether or not the intervenor‘s rights may be Subpoena is a process directed to a person
fully protected in a separate proceeding. requiring him to attend and to testify at the
hearing or the trial of an action, or at any
How to Intervene: investigation conducted by competent
authority, or for the taking of his deposition.
 File a motion for leave of court to file (Sec. 1, Rule 21)
intervention;
Types of subpoena
 Attach the complaint or answer in
intervention.
1. Subpoena Duces Tecum
2. Subpoena Ad Testificandum
3.L.3. Remedy for The Denial of Motion
to Intervene
3.M.1. Subpoena duces tecum
An improper denial of a motion to intervene is
Subpoena duces tecum is a process directed
correctible by appeal, but if there is grave
to a person requiring him to produce in court
abuse of discretion, mandamus will lie if there
any books, documents or things under his
is no other plain, speedy and adequate
control on which he must testify
remedy.
3.M.2. Subpoena ad testificandum
Remedies for the denial of intervention
Subpoena ad testificandum is a process
 Appeal.
directed to a person requiring him to attend
 Certiorari and Mandamus, if there is abuse
and to testify at the hearing or trial of an
of discretion.
action or at any investigation conducted by
competent authority, or for taking of his
Note: The grant or refusal of a motion to
deposition.
intervene is discretionary upon the court.
Once exercised, the decision cannot be
3.M.3. Service of subpoena
reviewed or controlled by mandamus, except,
if there is arbitrary abuse of the discretion,
It shall be made in the same manner as
where the court will be called upon to review
personal or substituted service of summons.
the exercise of such discretionary power. If
there is grave abuse of discretion, the party
SUBPOENA SUMMONS
may also avail of certiorari.
An order to appear An order to answer
INTERVENTI0N INTERPLEADER and testify or to the complaint
produce books and
An ancillary action. An original action.
documents
Proper in any of the Presupposes that the
May be served to a Served on the
four situations plaintiff has no interest in
non-party defendant
mentioned in this the subject matter of the
Rule. action or has an interest Requires tender of Does not need tender
therein which, in whole kilometrage, of kilometrage and
or in part, is not disputed attendance fee and other fees
by the other parties to reasonable cost of
the action. production fee
Defendants are Defendants are being

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The original shall be exhibited and a copy
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.
Note: 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.
Purpose: To allow the witness a reasonable
time to prepare and travel to the place of
attendance.
If the subpoena is duces tecum, the
reasonable cost of producing the books,
documents or things demanded shall also be
tendered. (Sec. 6 Rule 21)
Tendering - to present to another person, an
unconditional offer to enter into a contract; it
is also a method of delivery, except that the
recipient has the choice not to accept the
tender. However, the act of tender completes
the responsibility of the person making the
tender.
The tender may save the tendering party from
a penalty of non-performance or may, if the
other party unjustly refuses to accept the
tender, it places the other party in default
(Black‘s Law dictionary 8th edition).
Who May Issue a Subpoena?
 The court before which the witness is
required to attend.
 The court of the place where the
deposition is to be taken.
 The officer or body authorized by law to
do so, in connection with an investigation.
 Any Justice of the Supreme Court or of
the Court of Appeals in any case or
investigation pending within the
Philippines. (Sec. 2, Rule 21)
Other Errors Allowed by LAW to issue
subpoena (not by the Rules):
 DOJ;
 Ombudsman;
 City Prosecutor
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Note: No prisoner sentenced to death,
reclusion perpetua, or life imprisonment, and
who is confined in any penal institution shall
be brought outside for appearance or
attendance in any court, unless authorized by
the S.C. ONLY.
3.M.4. Compelling Attendance of
Witnesses; Contempt
The court upon showing of the failure of the
witness to attend and upon proof of the
service of the subpoena may issue a warrant
to arrest the witness and bring him before the
court or officer where his attendance is
required. The cost of such warrant and seizure
shall be paid by the witness if the court finds
that his failure to appear was willful and
without just cause.
Failure to obey a subpoena without adequate
cause shall be deemed a contempt of the
issuing court. If the subpoena was not issued
by a court, the disobedience shall be punished
in accordance with the applicable law or Rule.
Exceptions:
1) Where the witness resides more than 100
kilometers from his residence to the place
where he is to testify by the ordinary
course of travel (Viatory Right), and
2) Where permission of the court in which the
detained prisoner‘s case is pending was not
obtained.
3.M.5. Quashing of Ssubpoena
A subpoena duces tecum may be quashed
upon motion promptly made and in any event
before the time specified therein. It must be
shown that 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.
A subpoena ad testificandum may be quashed
upon showing that the witness is bound
thereby or that the witness feed and
kilometrage allowed by the Rules were not
tendered when the subpoena was served.

Grounds for Quashing Subpoena
(A) Subpoena Ad Testificandum
 Witness is not bound thereby.
 Not meritorious; or
 Not qualified to testify.
(B) Subpoena Duces Tecum
 Unreasonable and oppressive.
 Relevancy of the books, documents or
things does not appear to be prima facie
relevant to the issue.
 Person asking for the subpoena does not
advance the cost for the production of the
articles desired; or
 Subject matter or documents are not
within his power.
Note: In either case, the subpoena may be
quashed for failure to render the witness fees
and kilometrage allowed by the rules.
3.N. MODES OF DISCOVERY
Discovery - is the procedure that enables
one party in an action to obtain, before trial,
knowledge of relevant facts and of material
evidence in the possession of the adverse
party or of a witness.
It is a device employed by a party to obtain
information about relevant matters on the
case from the adverse party in preparation for
the trial (Riano 2009).
Rationale:
1) To enable the parties to obtain the fullest
possible knowledge of the issues and
evidence long before the trial thereby
preventing surprises during trial;
2) To effectively shorten the period of
litigation and speed up adjudication.
Modes of discovery
Q: How many modes of discovery?
A: There are 14 modes of discovery.
1. Deposition pending action (Rule 23)
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2. Deposition before action (Rule 24)
3. Deposition pending appeal (Rule 24)
4. Interrogatories to parties (Rule 25)
5. Admission by the adverse parties (Rule
26)
6. Production of documents (Rule 27)
7. Production of things (Rule 27)
8. Production of documens and things
9. Inspection of documents (Rule 27)
10. Inspection of things (Rule 27)
11. Inspection of documents and things
12. Physical examination of persons (Rule
28)
13. Mental examination of persons (Rule
28)
14. Physical and mental examination of
persons.
Note: Rule 23 inapplicable to Criminal
Procedure
Civil procedure has suppletory application to
criminal cases. However, it is likewise true that
the criminal proceedings are primarily
governed by the Revised Rules of Criminal
Procedure. X x x Sections 12, 13 and 15, Rule
119 of the Revised Rules of Criminal
Procedure, allow the conditional examination
of both the defense and prosecution
witnesses. X x x
Section 15. Examination of witness for the
prosecution. – When it satisfactorily appears
that a witness for the prosecution is too sick
or infirm to appear at the trial as directed by
the court, or has to leave the Philippines with
no definite date of returning, he may forthwith
be conditionally examined before the
court where the case is pending. 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 after
notice shall be considered a waiver. The
statement taken may be admitted in behalf of
or against the accused.
The conditional examination of a prosecution
witness must take place at no other place than
the court where the case is pending.
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Twofold purpose:
(1) To afford the accused an opportunity to
test the testimony of witnesses by cross-
examination, and
(2) To allow the judge to observe the
deportment of witnesses, to insures that
the witness will give his testimony under
oath, thus deterring lying by the threat of
perjury charge (Harry L. Go. Vs. People of
the Philippines, G.R. No. 185527, July 18,
2012)
 Examination of defense witness may be
made before any judge, but examination
of prosecution witness may be made only
before the court where the case is
pending.
 Unlike an examination of a defense
witness which, pursuant to Section 5, Rule
119 of the previous Rules, and now
Section 13, Rule 119 of the present
Revised Rules of Criminal Procedure, may
be taken before any ―judge, or, if not
practicable, a member of the Bar in good
standing so designated by the judge in the
order, or, if the order be made by a court
of superior jurisdiction, before an inferior
court to be designated therein,‖ the
examination of a witness for the
prosecution under Section 15 of the
Revised Rules of Criminal Procedure
(December 1, 2000) may be done only
―before the court where the case is
pending.‖ (Viuda de Manggera vs. Risos, G.R.
No. 152643, August 28, 2008)
WHO Any party
1. Before summons has been served
- with leave of court
WHEN
2. After answer has been served -
without leave of court
Deponent
AGAINST 1. Any party [Sec 4 (c), Rule 23]
WHOM 2. Third party (not party to the case)
i.e. witness.
In the Philippines:
BEFORE Judge
WHOM Notary public
Any person authorized
administer oath as agreed by the
parties.
In foreign countries:
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1. Also by persons mentioned above
BEFORE 2. Secretary of Embassy or legation,
WHOM consul-general, consul, vice-consul
or consular agent.
HOW Introduced as evidence
Discovery resorted to before answer
It is only in the exceptional or unusual case
that the need for discovery arises, or that it
should be allowed before service of answer.
Modes of discovery are intended to be
cumulative and not alternative nor mutually
exclusive.
Discovery is not mandatory but failure to avail
of it carries sanctions under Rules 25 and 26.
Depositions pending action; depositions before
action or pending appeal
When Deposition Pending Action is
Taken
 By leave of court, after jurisdiction has
been obtained over any defendant or over
the property which is the subject of the
action
 By leave of court, where no answer has
yet been filed, even if jurisdiction has
been obtained over the defendant, since
before filing of answer, the disputed facts
are not clear.
 Without leave of court after an answer has
been served.
The deposition of a person confined in prison
may be taken only by leave of court. (Sec. 1,
Rule 23)
Effects of Errors and Irregularities in
Depositions
(Sec. 29, Rule 23)
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.
to
As to disqualification of deposition
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.
As to competency or relevancy of
evidence – Objections to the competency of
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.
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.
As to form of written interrogatories -
Objections to the form of written
interrogatories submitted under Secs. 25 and
26 are waived unless served in writing upon
the party propounding them within the time
allowed for serving succeeding cross or other
interrogatories and within 3 days after service
of the last interrogatories authorized.
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 Secs. 17, 19, 20 and 26 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,
ascertained (Sec. 29, Rule 23)
3.N.1. Deposition Pending Action;
Deposition before action or Pending
Appeal
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There is no rule that limits deposition-taking
only to the period of pre-trial or before it; no
prohibition against the taking of depositions
after pre-trial. Indeed, the law authorizes the
taking of depositions of witnesses before or
after an appeal is taken from the judgment of
a Regional Trial Court ―to perpetuate their
testimony for use in the event of further
proceedings in the said court‖ (Rule 134, Rules
of Court), and even during the process of
execution of a final and executory judgment.
(Dasmarinas Garments vs. Reyes, G.R. No. 108229,
August 24, 1993)
Deposition in Perpetuam Rei Memoriam
(Perpetuation of Testimony)
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 file a verified
petition in the court of the place of residence
of any expected adverse party.
Purpose: To preserve the testimony of
witnesses for probable use in a future case or
in the event of further proceedings in the
same case (Regalado: Vol. 1 8th ed.).
How to avail:
By filing a verified petition in the court of the
place of residence of any expected adverse
party, 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.
Note: Deposition is taken conditionally, and
may be used in trial only in case the deponent
is not available.
It is considered a judicial admission although
it does not form part of the records of the
case yet.
The deposition taken does not prove the
existence of any right. The testimony is not
conclusive as to the existence of such right,
nor of the facts to which they relate as it may
be controverted at trial in the same manner as
though no perpetuation of testimony was ever
had.
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If there is no objection to its taking and even
if the deponent did not testify at the hearing,
the perpetuated testimony constitutes prima
facie proof of facts referred to in the
deposition. (Regalado. Vol. 1. 8th ed. p. 330)
DEPOSITION DEPOSITION
PENDING ACTION BEFORE ACTION
Pending action. No action.
Terminated in the trial
court but no entry of
judgment.
Initiated thru notice. By verified petition.
 That the deposition-taking will take place
in ―a foreign jurisdiction not recognized by
the Philippines x x x is inconsequential.
What matters is that the deposition is
taken before a Philippine official acting by
authority of the Philippine Department of
Foreign Affairs and in virtue of a
commission duly issued by the Philippine
Court in which the action is pending, and
in accordance, moreover, with the
provisions of the Philippine Rules of Court
pursuant to which opportunity for cross-
examination of the deponent will be fully
accorded to the adverse party.(Ibid)
Depositions Pending Appeal
 If an appeal has been taken, 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 or
deposition of witnesses to perpetuate their
testimony for use in the event of further
proceedings in the said court.
 The party who desires to do so may make
a motion in the said court for leave to take
deposition.
 Judgment must be final, but not
executory.
Depositions are taken pending appeal with the
view to their being used in the event of
further proceeding in the court of origin or
appellate court. (Sec. 7, Rule 24)
The deposition taken under this Rule is
admissible in evidence in any action
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subsequently brought involving the same
subject matter (Sec. 6, Rule 24)
DEPOSITIONS AFFIDAVITS
Written testimony of Mere sworn written
deponent in course of statements.
judicial proceedings in
advance of trial and
hearing.
Opportunity for cross- No cross
examination. examination.
Can be competent Little testimonial
probative value. evidence.
3.N.1.A. Meaning of deposition
 Deposition, explained Depositions are
chiefly a mode of discovery. They are
intended as a means to compel disclosure
of facts resting in the knowledge of a
party or other person which are relevant
in some suit or proceeding in court.
Depositions, and the other modes of
discovery (interrogatories to parties;
requests for admission by adverse party;
production or inspection of documents or
things; physical and mental examination
of persons) are meant to enable a party to
learn all the material and relevant facts,
not only known to him and his witnesses
but also those known to the adverse party
and the latter's own witnesses. In fine, the
object of discovery is to make it possible
for all the parties to a case to learn all the
material and relevant facts, from whoever
may have knowledge thereof, to the end
that their pleadings or motions may not
suffer from inadequacy of factual
foundation, and all the relevant facts may
be clearly and completely laid before the
Court, without omission or suppression. X
x x Depositions are principally made
available by law to the parties as a means
of informing themselves of all the relevant
facts; they are not therefore generally
meant to be a substitute for the actual
testimony in open court of a party or
witness. The deponent must as a rule be
presented for oral examination in open
court at the trial or hearing. This is a
requirement of the rules of evidence.
(Dasmarinas Garments vs. Reyes, Supra)

 Deposition is testimony of a witness
taken upon oral question or written
interrogatories, not in open court, but
in pursuance of a commission to take
testimony issued by court, or under a
general law or court rule on the
subject, and reduce to writing and
duly authenticated, and intended to
be used in preparation and upon the
trial of a civil or a criminal
prosecution.. The person who is
deposed is called the deponent. The
deposition is conducted under oath
outside of the court room, usually in
one of the lawyer's offices. A
transcript — word for word account —
is made of the deposition. Testimony
of [a] witness, taken in writing, under
oath or affirmation, before some
judicial officer in answer to questions
or interrogatories. (People vs. Webb, 312
SCRA 573)
Rules on Civil Procedure can apply
suppletorily in criminal cases. Hence,
the rules on deposition may apply in
criminal cases. Depositions may be
taken before trial, or even during trial,
upon the discretion of the court.
Depositions are intended as a means
to compel disclosure of facts resting in
the knowledge of a party or other
person, which are relevant in suit or
proceeding.
Classification of Depositions
a) Deposition on Oral Examination;
b) Deposition upon Written Interrogatories;
c) Depositions De Bene Esse are those taken
for purposes of a pending action (Rule 23);
d) Depositions In Perpetuam Rei Memoriam -
those taken to perpetuate evidence for
purposes of an anticipated action or
further proceedings in a case on appeal.
(Rule 24)
Deposition may be used at the trial upon
hearing of a motion or hearing of an
interlocutory order.
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Scope of inquiry in deposition
Deponent may be examined on all matters:
1) Matters which are relevant to the subject
of the pending action;
2) Matters which are not privileged; and
3) Matters that are not restricted by a
protective order.
Depositions are not generally meant to
substitute for the actual testimony in open
court of a party or witness.
The deponent must be presented for oral
examination in open court during trial.
Otherwise, any deposition offered to prove the
facts at the trial of the case may be opposed
and excluded as hearsay, except in specific
instances authorized by the rules under Sec.
4, Rule23
3.N.1.B. Uses; Scope of Examination
Use of Deposition Pending Action
Who Use of Deposition
Any party. For contradict or for impeaching the
testimony of deponent as a witness.
Adverse For any purpose, when deponent was
party. an officer, director, or managing agent
of a public or private corporation,
partnership, or association which is a
party at the time the deposition was
taken.
Any party. For any purpose, if the court finds
that the:
1. Witness is dead; or
2. Witness resides at a
distance more than 100
kilometers from the place of
trial or hearing, unless it
appears that his absence was
procured by the party
offering the deposition, or
3. Witness is unable to testify
because of age, sickness,
infirmity, or imprisonment; or
4. That the party offering the
deposition has been unable
to procure the attendance of
witnesses by subpoena; or
5. Exceptional circumstances
exist to make it desirable to
allow the use of the
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Who Use of Deposition
deposition, in the interest of
justice and with due regard
to the importance of
presenting the testimony of
witnesses orally in open
court.
Adverse When a party offers in evidence only a
party. part of the deposition:
Any party. To require party offering to introduce
all of it which is relevant to the part
introduced.
Adverse To introduce any other parts, when
party. the party using the deposition is
offering only a part of it in evidence.
Any party.
Scope of Examination
(Unless otherwise ordered by the court as
provided by Sec. 16 or 18, the deponent may
be examined regarding:)
a. any matter not privileged
b. which is relevant to 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.
c. Not restricted by a protective order.
Use of Deposition Pending Appeal
a) To allow appellate court to admit
evidence;
b) Retrial;
c) New Trial;
d) Remand for Further Proceedings.
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Effects of Taking Depositions:
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition. (Sec. 7, Rule 23)
Effect of Using Depositions:
The introduction in evidence of the deposition
or any part thereof for any purpose makes the
deponent the witness of the party introducing
the deposition, except —
 If it is introduced to impeach or contradict
the witness; or
 If it is the deposition of the opposing
party. (Sec. 8, Rule 23)
3.N.1.C. When May Objections to
Admissibility be made
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. (Sec. 6, Rule 23)
3.N.1.D. When May Taking of Deposition
be Terminated or its Scope Limited
Motion to terminate or limit the
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.
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If the order made terminates the examination, been ―returned unexecuted‖ as is

it shall be resumed thereafter only upon the apparent from Form 21 of the ―Judicial
order of the court in which the action is Standard Forms‖ appended to the Rules of
pending. Upon demand of the objecting party Court. (Ibid)
or deponent, the taking of the deposition shall
be suspended for the time necessary to make Letters Rogatory – also known as letters of
a notice for an order. In granting or refusing request, is a document issued by one court to
such order, the court may impose upon either a foreign court requesting it to:
party or upon the witness the requirement to a) Take evidence from a specific person
pay such costs or expenses as the court may within the foreign jurisdiction or serve
deem reasonable. (Sec. 18, Rule 23) process on a person whether real or
artificial within the foreign jurisdiction;
Persons before whom deposition may be b) Return the testimony or proof of service
taken (Secs. 10-11, Rule 23) for use in the pending case. (Black‘s Law
dictionary. 8th edition)
A. Within the Philippines (JAN)
1) Judge. Commission - An instrument issued by a
2) Any person authorized to administer Court of Justice, or other competent tribunal,
oaths, if the parties so stipulate in to authorize a person to take depositions or do
writing. any other acts by authority of such court or
3) Notary Public. tribunal (Dasmarinas Garments, Inc. vs Reyes,
G.R. No 108229)
B. Outside the Philippines
 On notice, before a Secretary of COMMISSION LETTERS
Embassy or Legation, Consul General, ROGATORY
To Whom Issued to a non- Issued to the
Consul, Vice-Consul, or consular agent
Issued judicial foreign appropriate
of the Philippines. officer who will judicial officer
 Before such person or officer as may directly take the of the foreign
be appointed by commission or under testimony. country who
letters rogatory. will direct
 Any person authorized to administer somebody in
oaths, if the parties so stipulate in said foreign
writing. country to
take down
testimony.
 Commission may be defined as ―an
Applicable Applicable rules Applicable
instrument issued by a court of justice, or
Rules of procedure are rules of
other competent tribunal, to authorize a those of the procedure are
person to take depositions, or do any requesting court. those of the
other act by authority of such court or foreign court
tribunal.‖ (Ibid) requested to
act.
 Letters rogatory may be defined as ―an When Resorted to if Resorted to if
instrument sent in the name and by the Resorted to permission of the the execution
authority of a judge or court to another, foreign country is of the
given. commission is
requesting the latter to cause to be
refused in the
examined, upon interrogatories filed in a foreign
cause pending before the former, a country.
witness who is within the jurisdiction of As to Leave of court is Leave of court
the judge or court to whom such letters Nessecity not necessary. is necessary.
are addressed.‖ (Ibid) Noteworthy x x x is of Leave of
that letters rogatory may be applied for Court
and issued only after a commission has

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3.N.2. Written Interrogatories to
Adverse Parties
A party desiring to take relevant facts from
any adverse party shall file and serve upon
the latter written interrogatories to be
answered by the party served.
If the person served is a private or public
corporation, partnership or association, then it
will be answered by any officer competent to
testify in its behalf. (Sec 1, Rule 25)
How served:
With leave of court: Before answer has
been served.
Without leave of court: Only after answer
has been served for the first set of
interrogatories.
Written interrogatories and the answers
thereto must both be filed and served.
Answers may constitute judicial admissions.
Interrogatories may embrace any relevant
matter, unless the same is privileged or
prohibited by a court order.
Since answers to interrogatories may be used
in the same manner as a deposition, such may
also be used as a basis for summary judgment
under Rule 35.
BILL OF
INTERROGATORIES
PARTICULARS
A party may properly A party may properly
seek disclosure of seek disclosure only of
matter of proof which matter which define
may later be made a the issues and become
part of the records as part of the pleadings
evidence
Bill of Particulars - designed to clarify
ambiguties in a pleading or to state with
sufficient definiteness allegations in a
pleading. Hence, it is a direct pleading.
Interrogatories to parties - not directed to a
particular pleading. Instead they seek to
disclose all material and relevant facts from a
party.
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Scope of Interrogatories
Any matters that can be inquired into under
Section 2 of Rule 23
Note: 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 identity and location of
persons having knowledge of relevant facts.
(Sec. 5, Rule 25)
Use of Interrogatories
(Sec. 5, Rule 25)
The answers to interrogatories may be used
for the same purposes provided in Section 4 of
Rule 23:
a) By any party, to contradict or impeach the
testimony of deponent as a witness.
b) By an adverse party, for any purpose,
when deponent was an officer, director, or
managing agent of a public or private
corporation, partnership, or association
which is a party at the time the deposition
was taken.
c) By any party, for any purpose, when the
court finds that:
 The witness is dead; or
 The witness resides at a distance
more than 100 kilometers from the
place of trial or hearing, or is out of
the Philippines, or
 The witness is unable to attend or
testify because of age, sickness,
infirmity, or imprisonment; or
 The witness has not been
subpoenaed, or
 Exceptional circumstances exist to
make it desirable to allow the use of
the deposition, in the interest of
justice a
 nd with due regard to the
importance of presenting the
testimony of witnesses orally in
open court
 When a party offers in evidence only
a part of the deposition:
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1) By an adverse party, to require

party offering to introduce all of
it that is relevant to the part
introduced.
2) To introduce any other parts,
when the party using the
deposition is offering only a part
of it in evidence.
Answer to written interrogatories
The interrogatories shall be answered:
1. Fully in writing; and
2. Signed and sworn to by the person
making them.
Exception: UNLESS thereafter allowed by
the court
 For good cause shown and
 To prevent a failure of justice
A party who previously avails of written
interrogatories, as a mode of discovery,
cannot be prevented from resorting to a
deposition on oral examination because
the fact that information sought had been
obtained by answers to interrogatories does
not bar an examination before trial, and such
prior taking is not a valid objection to the use
of deposition in good faith, there being no
duplication.

Knowledge by the petitioner of the facts

concerning which the proposed deponent is to
3.N.2.A. Consequences of Refusal to be examined on does not justify refusal of
Answer such examination.

The party who fails to serve his answer to DISTINCTIONS BETWEEN DEPOSITION
written interrogatories may be the subject of a UPON WRITTEN INTERROGATORIES
judgment by default. AND INTERROGATORIES TO PARTIES

3.N.2.B. Effect of failure to serve written

interrogatories (Sec. 6, Rule 25)
Deposition Upon
Interrogatories to
General Rule: A party not served with Written
Parties
written interrogatories may not be: Interrogatories
(Rule 25)
(Rule 23)
Deponent may be a Deponent must be a
 Compelled by the adverse party to give
party or ordinary party.
testimony in open court, or witness.
 To give a deposition pending appeal. Covers direct, cross, Covers only one set of
redirect, re-cross interrogatories.
 One of the purposes of the above rule is examination.
to prevent fishing expeditions and Proceeded upon with No intervention of such
needless delays; it is there to maintain the intervention of the an officer. Interrogatories
order and facilitate the conduct of trial. It officer authorized by are directed to the party
will be presumed that a party who does the court to take himself.
not serve written interrogatories on the deposition.
No fixed time to 15 days to answer unless
adverse party beforehand will most likely
answer. extended or reduced by
be unable to elicit facts useful to its case if
the Court
it later opts to call the adverse party to
the witness stand as its witness. Instead,
3.N.3. Request for Admission
the process could be treated as a fishing
expedition or an attempt at delaying the
Purpose: To expedite trial and relieve the
proceedings; it produces no significant
parties of the costs of proving facts which will
result that a prior written interrogatories
not be disputed on trial and the truth of which
might bring. (Sps. Afulugencia vs. Metrobank,
can be ascertained by reasonable inquiry.
G.R. No. 185145, February 5, 2014)

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Admission by Adverse Party
This mode of discovery contemplates
interrogatories seeking clarification in order to
determine the truth or falsity of the allegation
in a pleading.
Scope of Request for Admission (Sec. 1,
Rule 26)
Admission of the genuineness of any material
and relevant document described in and
exhibited with the request.
The documents herein referred to are not
actionable documents.
Admission of the truth of any material and
relevant matter of fact set forth in the request.
A matter of fact not related to any documents
may be presented to the other party for
admission or denial.
Distinguished from Rule on Actionable
Documents (Rule 8 Section 8)
 Actionable Document under Rule 8 is a
written instrument upon which the action
or defense is based.
 Documents sought to be admitted under
the modes of discovery (Rule 26) are other
written instruments where action or
defense are not based.
A request for admission is proper when the
genuineness of an evidentiary document is
sought to be admitted.
If not denied under oath in accordance with
Section 2, its genuineness is deemed
admitted. If the document is actionable, the
original or a copy should be attached to the
complaint, or copied therein, and its
genuineness and due execution is deemed
impliedly admitted unless specifically denied
under oath by the adverse party.
Distinguished from Written
Interrogatories
WRITTEN REQUEST FOR
INTERROGATORIES ADMISSION
Adverse party or witness Adverse party only
NOT required to deny or Required to admit or
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admit anything deny anything
Written request must be Written request
filed in court and served must be filed in
on the adverse party court and served on
the adverse party
Must be objected within Must be objected
10 days (Rule 25) within 15 days
3.N.3.A. Implied Admission by
Adverse Party
Each of the matters of which an admission is
requested shall be deemed admitted unless,
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 whom 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. (Sec. 2, Rule 26)]
Upon service of request for admission, the
party served may do any of the following acts:
a) he may admit each of the matters of which
an admission is requested, in which case, he
need not file an answer;
b) he may admit the truth of the matters of
which admission is requested by serving upon
the party requesting a written admission of
such matters within the period stated in the
request, which must not be less than ten (10)
days after service, or within such further time
as the court may allow on motion and notice;
c) he may file a sworn statement denying
specifically the matter of which an admission
is requested; or
d) he may file a sworn statement setting forth
in detail the reasons why he cannot truthfully
either admit or deny the matters of which an
admission is requested. (Allied Agri-business
Development Co., Inc. vs. CA G.R. No. 118438,
December 4, 1998)

Remedy of the party:
File a motion to be relieved of the
consequences of the implied admission. The
amendment of the complaint per se cannot set
aside the legal effects of the request for
admission since its materiality has not been
affected by the amendment.
3.N.3.B. Consequences of failure to
answer request for admission
Summary judgment may be asked when a
request and order for admission was never
answered. It is a settled rule that summary
judgment may be granted if the facts which
stand admitted by reason of a party‘s failure to
deny statements contained in a request for
admission show that no material issue of fact
exists. By its failure to answer the other
party‘s request for admission, petitioner has
admitted all the material facts necessary for
judgment against itself. (Ibid)
3.N.3.C. Effect of Admission
An admission under this mode of discovery is
for the purpose of the pending action only and
cannot be used in other proceedings.
Form of Admission: A sworn statement
either denying specifically the matters for
which an admission is requested, or setting
forth in detail the reason why he cannot
truthfully admit or deny those matters. (Sec.
2, Rule 26)
3.N.3.D Effect of Failure to File and
Serve Request For Admission
General Rule: The party who fails or refuses
to file and serve a request the admission of
facts in question is prevented from thereafter
presenting evidence thereon unless otherwise
allowed by the court.
Exception:
(1) For good cause shown‘ and
(2) To prevent a failure of justice.
If there is a request for admission, and there
is no answer to such request, a motion for
summary judgment is proper because facts
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alleged therein are deemed admitted, hence
no issues. (Allied Agri-business vs. CA, supra)
3.N.4. Production or Inspection of
Documents or Things
Purpose: The purpose of this mode of
discovery is to allow a party to seek an order
from the court in which the action is pending
to:
(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
tangible things, not privileged, which
constitute or contain evidence
material to any matter involved in the action
and which are in his possession, custody or
control;
(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 (Sec. 1,
Rule 27, Rules of Court)
Applicability: Applicable to a pending action
and the documents or things subject of the
motion must be only those within the
possession, control, or custody of a party
Note: Production of documents affords more
opportunity for discovery than a subpoena
duces tecum because in the latter, the
documents are brought to the court for the
first time on the date of the scheduled trial
wherein such documents are required to be
procured.
Requisites of production or inspection of
documents or things:
1. A motion must be filed by a party showing
good cause thereof;
2. Notice of the motion must be given to all
other parties;
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3. The motion must be sufficiently describe  upon notice to the party to be examined
the documents or thing sought to be and to all other parties, and shall specify
produced or inspected; the time, place, manner, conditions and
4. The document or thing sought to be scope of the examination and the person
produced or inspected must constitute or or persons by whom it is to be made.
contain evidence material to the pending Waiver of privilege:
action:
Where the party examined requests and
 The document or thing sought to be obtains a report on the results of the
produced or inspected must not be examination:
privileged; and
 The document or thing sought to be  He is obliged to furnish the other party a
produced or inspected mus be in the copy of the report of any previous or
possession of the adverse party or, at subsequent examination of the same
least, under his control. physical and mental condition; and
 He waives any privilege he may have in
The test to be applied in determining the that action or any other involving the
relevancy of the documents and sufficiency of same controversies regarding the
their description is one of reasonableness and testimony of any other person who has so
practicality. examined him or may thereafter examine
him.
PRODUCTION OF SUBPOENA DUCES
DOCUMENTS TECUM
Refusal to Comply with Modes of
Essentially a mode of Means of compelling
Discovery
discovery. production of evidence.
Limited to the parties May be directed to a
to the action. person whether a party or Sanctions:
not. 1) Those which are sought to be established
The order under this May be issued upon an ex are deemed established;
rule is issued only parte application. 2) Contempt;
upon motion with 3) Payment of reasonable fees;
notice to adverse 4) The matter regarding which the questions
party. were asked, character or description of
land, et al., be taken to be in accordance
3.N.5. Physical and Mental Examination with the claim of the party obtaining the
of Persons order;
5) Prohibition on the refusing party to
 This applies only to parties, NOT produce evidence, support or oppose the
witnesses. designated claims or defenses;
 Since the results of the examination are 6) Striking out pleadings, order the dismissal
intended to be made public, the same are of the action, or stay the action until
not covered by the physician-patient compliance, or to render judgment by
privilege. default; and
 Under this rule, the examining physician 7) Order the arrest of the refusing party
becomes essentially an officer of the court except in case of physical and mental
ordering the examination. examination.

Order for examination Note: Availment of one mode of discovery will

not bar the party from obtaining another
mode of discovery. (Fortune Corp vs. C.A, G.R.
The order for examination may be made only: No. 108119, January 19, 1994)
 on motion for good cause shown, and

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Note: The only exception where order of
default is not preceded by a motion to declare
in default- failure to comply with the modes of
discovery
3.N.6 Consequences of Refusal to
comply with the discovery
Refusal Effects
Refusal to answer any (a) The court may upon
question upon oral proper application, compel
examination a deponent who refuses to
answer an oral
examination. The same
applies to a witness who
refuses to answer an
interrogatory submitted
(Sec. 1, Rule 29, Rules of
Court).
A refusal to answer after
being directed by the court
may be considered as a
contempt of court (Sec. 2,
Rule 29, Rules of Court).
The court may order the
deponent, a party, or the
counsel advising the
refusal, or both of them, to
pay the proponent the
amount of reasonable
expenses incurred in
obtaining the order,
including attorney‘s fees
(Sec. 1, Rule 29, Rules of
Court).
(b) If the application for an
order to compel a deponent
to answer is denied
because of the absence of
a substantial justification,
the court may require the
proponent or the counsel
advising the application, or
both of them, to pay
to the refusing party or
deponent the amount of
reasonable expenses
incurred in opposing the
application, including
attorney‘s fees (Sec. 1,
Rule 29, Rules of Court).
Refusal to answer (a) The court may order
designated or that the matters regarding
particular questions or which the questions were
refusal to produce asked shall be taken as
documents or things or established for purposes of
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to submit to physical the action in accordance
or mental examination with the claim of the party
obtaining them (Sec. 3[a],
Rule 29, Rules of Court).
(b) The court may issue an
order refusing to allow the
disobedient party to refuse
or support designated
claims or defenses or
prohibiting him from
introducing in evidence
designated documents or
things or items of
testimony, or from
introducing evidence of
physical or mental
condition (Sec. 3[b], Rule
29, Rules of Court).
(c) The court may issue 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 (Sec. 3[c], Rule 29,
Rules of Court).
(d) The court may direct
the arrest of any party or
agent of a party for
disobeying any of the
orders of the court, except
an order to submit to a
physical or mental
examination (Sec. 3[d],
Rule 29, Rules of Court).
Refusal to be sworn A refusal of a party to be
sworn after being directed
by the court may be
considered as contempt of
court (Sec. 2, Rule 29,
Rules of Court).
Refusal to admit If a party refuses to admit
the genuineness of any
document or the truth of
any matter of fact and
serves a sworn denial
thereof and if the other
party later on proves the
genuineness of the
document or the truth of
such matter of fact, the
court upon proper
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application, may order the Exceptions:

former to pay the 1) Judgment on the pleading
reasonable expenses in 2) Summary judgment where there is no
making such proof, genuine issue
including attorney‘s fees
3) Judgment on compromise
(Sec. 4, Rule 29, Rules of
Court). 4) Judgment by confession
5) Dismissal with prejudice
Failure to attend 1. The court may: 6) Cases under Rules on Summary Procedure
depositions or to serve (a) strike out all or any part
answers to of the pleading of that 3.O.1 Adjournment and Postponements
interrogatories party, or dismiss the action (Sec. 2, Rule 30)
or proceeding or any part
thereof, or Adjournment
(b) enter a judgment by
default against that party,
A court has the power to adjourn trial from
and in its discretion,
(c) order him to pay
day to day, and to any stated time, as the
reasonable expenses expeditious and convenient transaction of
incurred by the other, business may require.
including attorney‘s fees
(Sec.5, Rule 29, Rules of However, the court has no power to adjourn a
Court). trial for a period longer than one (1) month
for each adjournment, nor more than three
2. The consequences under (3) months in all, EXCEPT when authorized in
Sec. 5 of Rule 29 will apply
writing by the Court Administrator of the
if a party refuses to answer
the whole set of written
Supreme Court.
interrogatories, and not
just a particular question. 3.O.2. Requisites of Motion to Postpone
Where the party upon Trial
whom the written A motion to postpone trial may be granted on
interrogatories is served, the following grounds and upon showing of
refuses to answer a the requisite affidavit or certification:
particular question in the
set of written
a) Unavailability of evidence or witness (Sec.
interrogatories and despite
3, Rule 30)
an order compelling him to
answer the particular
b) Unavailability or illness of party or counsel
question, still refuses to
(Sec. 4, Rule 30)
obey the order, Sec. 3(c) of c) When actions are suspended
Rule 29 will apply (Zepeda v.
China Banking Corporation, 3.O.2.A. Requisites of postponement due
G.R. No. 172175, October 9, to unavailability of evidence or witness:
2006).
1. Motion for postponement stating the
grounds relied upon.
3.O. TRIAL
2. Affidavit showing:
Trial is the judicial process of investigating and
 The evidence expected to be obtained is
determining the legal controversies starting
material or relevant; or
with the production of evidence by the plaintiff
 Due diligence has been used to procure
and ending with his closing arguments.
the evidence.
General Rule: When an issue exists, trial is
Note: If the adverse party admits the facts for
necessary. Decisions should not be rendered
which evidence to be given in evidence, even
without trial.
if he objects or reserves the right to their

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admissibility, the trial shall not be postponed.
(Sec 3, Rule 30)
3.O.2.B. Requisites of postponement due
to illness of party or counsel:
1. Motion for postponement stating the
grounds relied upon.
2. Affidavit showing:
 That the presence is indispensable; or
 Character of illness is such as to render
non-attendance excusable.
Every civil action or proceeding shall be
suspended:
 If willingness to discuss a possible
compromise is expressed by one or both
parties; or
 If it appears that one of the parties,
before the commencement of the action
or proceeding, offered to discuss a
possible compromise but the other party
refused the offer. (Art. 2030, Civil Code)
3.O.3. Agreed Statement of Facts (Sec. 6,
Rule 30)
Also known as STIPULATION OF FACTS and is
among the purposes of a pre-trial.
Agreed Statement of Facts is conclusive on the
parties as well as on the court. Neither of the
parties may withdraw from the agreements,
nor may the court ignore the same.
The parties may also stipulate verbally in open
court. Such stipulations are permitted by the
court on good cause shown. Judgment based
on a compromise agreement is executory and
non-appealable.
The counsels cannot stipulate on what their
respective evidence consists of and ask that
judgment be rendered on the basis of such
stipulation.
Stipulation of Facts are not permitted in
actions for annulment of marriage, legal
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separation, and declaration of nullity of
marriage.
Facts stipulated by the parties need not be
proven. It cannot be contradicted by evidence
to the contrary, and it is conclusive upon the
parties, unless it is shown that the admission
was made through a palpable mistake. (Bunag
vs Court of Appeals, 158 SCRA 299, G.R. No. L-
39013, 1988)
3.O.4. Order of trial; Reversal of order
Order of Trial
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 complaints;
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 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
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defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence. (1a, R30)
Reverse Order of Trial
As a rule, plaintiff opens the trial. However,
where the answers of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come up with evidence in
support of his special defenses. (Yu vs Mapayo,
44 SCRA 163, G.R. No. L-29742, 1972)
 If the answer admits the defendant‘s
obligation as alleged in the complaint but
special defenses were alleged, the plaintiff
does not have to present evidence since
judicial admissions do not require proof
and it should be the defendant who
should forthwith present evidence in
support of his special defenses.
Additional evidence may be offered at the
rebuttal stage if it was newly discovered
evidence, or omitted through mistake or
inadvertence or where the purpose is to
correct evidence previously offered,
subject to the discretion of the court.
(Heirs of Santioque vs. Heirs of Calma, GR. No.
160832, October 27, 2006)
“HOT TUB” HEARING
In a "hot tub" hearing, the judge can hear all
the experts discussing the same issue at the
same time to explain each of their points in a
discussion with a professional colleague. The
objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-
examination and increased emphasis on
professional dialogue, and swifter
identification of the critical areas of
disagreement between the experts.
[International Service for the Acquisition of Agri-
Biotech Applications, Inc. vs. Greenpeace Southeast
Asia (Philippines), G.R. No. 209271, December 08,
2015]
All trials upon merits shall be conducted in
open court and so far as convenient in a
regular courtroom. All other acts or
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proceedings may be done or conducted by a
judge in chambers, without the attendance of
the clerk or other court officials.
3.O.5 Consolidation or Severance of
Hearing or Trial
Consolodation
Consolodation is the act or process of uniting
several actions into one trial and judgment, by
order of a court, where all the actions are
between the same parties, pending in the
same court, and involving substantially the
same subject matter, issues and defenses.
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. In
consolidation, there must be at least two
cases.
Severance
Severance is the act of dividing a lawsuit into
two or more independent causes, each of
which terminates in separate, final and
enforceable judgment. In severance, there is
only one action.
The rule on separate trials in civil actions is
found in Section 2, Rule 31 of the Rules of
Court, which reads:
Section 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.
The text of the rule grants to the trial court
the discretion to determine if a separate trial x
x x should be held, provided that the exercise
of such discretion is in furtherance of
convenience or to avoid prejudice to any
party. X x x
Three factors to weigh in determining whether
to order separate trials for separate
defendants. These are:

1) whether separate trials would further the
convenience of the parties;
2) whether separate trials would promote
judicial economy; and
3) whether separate trials would avoid
substantial prejudice to the parties.
(Metrobank vs. Sandoval, G.R. No. 169677,
February 18, 2013)
Purpose of Consolidation
 To avoid multiplicity of suits
 To guard against oppression or abuse
 To prevent delay
 To clear congested dockets
 To simplify the work of the trial court
 To save unnecessary costs and expenses.
Ways of Consolidating Cases
1) By RECASTING the cases already
instituted conducting only one hearing and
rendering only one decision
2) By CONSOLIDATING the existing cases,
and holding only one hearing and
rendering only one decision; and
3) Test Case Method: wherein only the
principal case is heard and the hearing on
the others is suspended until the
judgment has been rendered in the
principal case.
General Rule: Consolidation is discretionary
with the court.
Exceptions: Consolidation becomes a matter
of duty:
a) If the cases, same parties and same
subject matter are pending before the
same judge; or
b) If cases were filed with different branches
of a court and one of such cases has not
been partially tried.
Notes: Consolidation of cases on appeal is
allowed.
Generally, the case which was appealed later
and bearing the higher docket number is
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consolidated with the case having the lower
docket number.
Consolidation is a procedural device to aid the
court in deciding how cases in its docket are
to be tried so that the business of the court
may be dispatched expeditiously and with
economy while providing justice to the parties.
To promote this end, the rule allows the
consolidation and a single trial of several cases
in the court‘s docket, or the consolidation of
issues within those cases.
In the context of legal procedure, the term
"consolidation" is used in three different
senses:
 Where all except one of several actions
are stayed until one is tried, in which case
the judgment in the one trial is conclusive
as to the others. This is not actually
consolidation but is referred to as such.
(quasi-consolidation)
 Where several actions are combined into
one, lose their separate identity, and
become a single action in which a single
judgment is rendered. This is illustrated by
a situation where several actions are
pending between the same parties stating
claims which might have been set out
originally in one complaint. (actual
consolidation)
 Where several actions are ordered to be
tried together but each retains its
separate character and requires the entry
of a separate judgment. This type of
consolidation does not merge the suits
into a single action, or cause the parties to
one action to be parties to the other.
(consolidation for trial). (Republic vs.
Heirs of Oribello, Jr., G.R. No. 199501, March
6, 2013)
3.O.6 Delegation of Reception of
Evidence
General Rule: The judge of the court where
the case is pending shall personally receive
the evidence to be adduced by the parties
(Sec. 9, Rule 30).
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Exception: Doctrine of Delegated Reception
(Laluan vs. Malpaya, 65 SCRA 494) The Clerk of
Court may receive evidence when so
delegated by the court under the following
conditions:
a) In default hearing
b) In ex-parte hearing
c) In any case where the parties agree in
writing
Notes: The Clerk of Court to whom
delegation is made must be a member of the
bar.
Unlike the commissioner under Rule 32 who
―unless otherwise provided in the order of
reference, may rule upon the admissibility of
evidence,‖ under Rule 30, ―The clerk of court
is devoid of power to rule on objections to any
question or to the admission of evidence or
exhibits, which objection shall be resolved by
the court upon submission of his report and
the transcripts within ten (10) days from
termination of the hearing.
3.O.7. Trial by commissioner
Commissioner is a person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered.
Trial by Commissioner applies when there is
something to be tried which requires some
technical expertise, which the court feels it
does not possess.
Trial by Commissioner depends largely upon
the discretion of the court; but the following
are instances when such appointment is
mandatory:
1. In expropriation proceedings, the
court shall appoint no more than three (3)
commissioners for the determination of
just compensation;
2. Partition
3. Settlement of Estate of a Deceased
Person in case of trial of contested claims;
and
4. The hearing for the approval of the
executor or administrator's
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accounting can be delegated to a
commissioner.
The word commissioner includes:
1) Referee
2) Auditor
3) Examiner
How made:
Reference by consent (Sec. 1, Rule 32)
Reference ordered by motion (Sec. 2, Rule 32)
3.O.7.A. Reference by Consent or
Reference ordered by motion
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.
The Court may, upon the application of either
party or of its own motion, direct a reference
to a commissioner.
When Made:
a) When the trial of an issue of facts requires
the examination of a long account on
either side;
b) When the taking of an account is
necessary for the information of the court
before the judgment, or for carrying a
judgment or order into effect;
c) When a question of facts other than upon
the pleadings arises upon motion or
otherwise, in any stage of a case; or
d) For carrying a judgment or order into
effect.
3.O.7.B. Powers of the Commissioner
a) To regulate the proceeding in every
hearing before him.
b) To do all acts necessary or proper for the
efficient performance of his duties under
the order.
c) To issue subpoenas ad testificandum and
subpoenas duces tecum.
d) To swear in witnesses.
e) To rule upon the admissibility of evidence
unless otherwise provided in the order.

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.
3.O.7.C. Commissioner‟s report; Notice
to parties and hearing on the report
Upon the completion of the trial or hearing or
proceeding before the commissioner, the
commissioner:
a) Shall file with the court in writing upon the
matters submitted to him by the order of
reference.
b) When his power is not specified or limited,
shall set forth his findings of facts and
conclusions of law in his report.
c) Shall attach thereto all exhibits, affidavits,
deposition, papers and the transcript, if
any, of the testimonial evidence presented
before him. (Sec 9, Rule 32)
Upon filing of the report, the parties shall be
notified by the clerk, and shall be allowed 10
days within which to signify grounds of
objections to the findings of the report, if they
so desire. (Sec 10, Rule 32)
Notes: Objection to report based on grounds
which were available to the parties during the
proceedings before the commissioner, other
than objection to finding and conclusion
therein set forth, shall not be considered by
the court unless they were made before the
commissioner. (Sec.10, Rule 32)
Hearing upon report
Upon the expiration of the period of the period
of ten (10) days by which the parties may
signify grounds of objections to the finding of
the report, the report shall be set for hearing.
(Sec.11, Rule 32)
After the hearing, the court shall issue an
order:
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 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.
Note: Failure to set the commissioner‘s report
for hearing is not necessarily erroneous where
parties were already granted opportunities to
be heard.
3.P. DEMURRER TO EVIDENCE
Is a form of a motion to dismiss filed after the
plaintiff has completed the presentation his
evidence, the defendant may move to dismiss
the complaint on the ground that the plaintiff
has shown no right to relief upon the facts
and the law (insufficiency of evidence).
 A demurrer to the evidence is an objection
by one of the parties in an action, to the
effect that the evidence which his
adversary produced is in sufficient in point
of law, whether true or not, to make out a
case or sustain the issue. The party
demurring challenges the sufficiency of
the whole evidence to sustain a verdict.
The court, in passing upon the sufficiency
of the evidence raised in a demurrer, is
merely required to ascertain whether
there is competent or sufficient evidence
to sustain the indictment or to support a
verdict of guilt.
Sufficient evidence for purposes of
frustrating a demurrer thereto is such
evidence in character, weight or amount
as will legally justify the judicial or official
action demanded according to the
circumstances. To be considered sufficient
therefore, the evidence must prove: (a)
the commission of the crime, and (b) the
precise degree of participation therein by
the accused. (Singian, Jr. vs.,
Sandiganbayan, G.R. Nos.195011-19,
September 30, 2013)
 Demurrer is an aid or instrument for the
expeditious termination of an action,
similar to a motion to dismiss, which the
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court or tribunal may either grant or deny.

(Nepomuceno vs COMELEC, 126 SCRA 472, 3.P.3. Effect of grant
G.R. No. L-60601, 1983)
If granted, in civil case, the case shall be
Motion to Dismiss vs. Demurrer dismissed. The order of dismissal being a final
order, it is appealable. However, if on appeal
MOTION TO DISMISS DEMURRER the order granting the motion is reversed, the
Grounds under Rule 16: Only 1 ground: defendant loses his right to present evidence.
Lack of jurisdiction over
the person of the Insufficiency of
defendant; evidence
It is not correct for the appellate court
Lack of jurisdiction over reversing the order granting the demurrer to
the subject matter of remand the case to the trial court for further
the claim; proceedings. The appellate court should,
Venue is improperly laid; instead of remanding the case, render
Plaintiff has no legal judgment on the basis of the evidence
capacity to sue; submitted by the plaintiff. (Radiowealth Finance
Litis Pendentia; Corporation vs. Del Rosario, 335 SCRA 228)
Barred by Res Judicata Radiowealth loses the right to present
or the Statute of
evidence.
Limitations;
Pleading states no cause
of action;  In criminal case, if demurrer to evidence
Claim or demand has is granted, it is a resolution of the case on
been paid, waived, the merits, and it amounted to an
abandoned or otherwise acquittal. Any further prosecution of the
extinguished; accused after an acquittal would violate
Claim is unenforceable the proscription on double jeopardy.
under the Statute of (People vs. Sumingawa, G.R. No. 183619,
Frauds; and October 13, 2009). Except the civil aspect of
Non-compliance with a
the criminal case. (Hun Hyung Park vs. Eung
condition precedent.
Won Choi, G.R. No. 165496, February 12,
Filed before answer. Filed when plaintiff 2007)
has rested his case.
 In criminal case: Judicial action to grant
3.P.1. Ground
prior leave to file demurrer to evidence is
discretionary upon the trial court. But to
After plaintiff has finished presenting his
allow the accused to present evidence
evidence, the defendant may move for the
after he was denied prior leave to file
dismissal of the complaint on the ground that
demurrer is not discretionary. Once prior
upon the facts and the law, the plaintiff has
leave is denied and the accused still files
shown no right to relief.
his demurrer to evidence or motion to
dismiss, the court no longer has discretion
3.P.2. Effect of denial
to allow the accused to present evidence.
The only recourse left for the court is to
In civil case, there is no need for a leave of
decide the case on the basis of the
court prior to filing of demurrer. If denied, the
evidence presented by the prosecution.
defendant may proceed to present his
And, unless there is grave abuse thereof
evidence.
amounting to lack or excess of
jurisdiction, which is not present in the
If denied, in criminal case, the accused may
instant case, the trial court‘s denial of
adduce his evidence only if the demurrer is
prior leave to file demurrer to evidence or
with leave of court. If demurrer is without
motion to dismiss may not be disturbed.
leave of court, accused can no longer present (Bernardo vs. Leviste, G.R. No. 119010.
his evidence. (Sec.23, Rule 119) September 5, 1997)

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The defendant can always present his

3.P.4 Waiver of Right to Present evidence in the event his demurrer is denied,
Evidence even if no reservation was made therefore.

3.P.5 Demurrer to evidence in a civil case vs. demurrer to evidence in a criminal case

CIVIL DEMURRER CRIMINAL DEMURRER

(1) Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading under the Rules on
Summary Proceedings because (a) it is there to similarly expedite the proceedings and (b) it is
not among those mentioned under prohibited pleadings
Similarities (2) The ground is the same, that is, INSUFFICIENCY OF EVIDENCE
(3) Only available AFTER the presentation of the evidence of the plaintiff or prosecution, as the
case may be
(4) Court may either grant or deny the Demurrer
(1) More difficult to file because the plaintiff (1) Easier to file because the prosecution is
is only required to present his case by required to prove the guilt of accused beyond
preponderance of evidence reasonable doubt
(2) if DENIED - distinguish whether there had
been prior leave of court (1) if with leave,
accused may proceed with presentation of his
(2) If DENIED - plaintiff presents evidence evidence; (2) if without leave, accused can no
longer present his evidence (Bernardo vs.
Leviste, G.R. No. 119010. September 5, 1997)
Differences
(3) if GRANTED - accused is acquitted; order of
acquittal is NOT appealable; otherwise, it will be
(3) if GRANTED - the case is dismissed; order
a violation of his right against double jeopardy
of dismissal is a FINAL order, hence
appealable
*Exception: appeal may be has as to the Civil
Aspect (Hun Hyung Park vs. Eung Won Choi, supra)
(4) if plaintiff appeals and the appellate court
REVERSES - defendant is no longer allowed
to present evidence

Certiorari does not lie to review an order
denying demurrer to evidence EXCEPT in
grave abuse of discretion or excess in
jurisdiction.
Note: demurrer to evidence is not a
prohibited pleading under the Rules on
Summary Proceedings. Reasons:
 The enumeration in Rule SumProc is
exclusive; demurrer is not included
therein;
 The purpose of the Rule SumProc is to
expedite the proceedings, so also is the
purpose of demurrer
plaintiff or prosecution, as the case may
be.
Sec. 34, Rule 132 of the Rules of Court
provides that "the court shall consider no
evidence which has not been formally
offered." A formal offer is necessary, since
judges are required to base their findings
of fact and their judgment solely and
strictly upon the evidence offered by the
parties at the trial. Hence, without any
formal offer of evidence, this Honorable
Court has no evidence to consider. (Sps
Ong vs. CA, GR No. 117103, January 21, 1999)

 Demurrer to evidence may only be availed  To determine whether the pleading filed is
of only available AFTER the a demurer to evidence or a motion to
presentation of the evidence of the dismiss, the Court must consider (1) the
allegations in it made in good faith; (2)

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the stage of the proceeding at which it is
filed; and (3) the primary objective of the
party filing it. (Cabador vs. People, G.R. No.
186001, October 2, 2009)
3.Q. JUDGMENTS AND FINAL
ORDERS
Judgment
Judgment is the conclusion of law upon the
matters contained in the record, or the
application of the law to the pleadings and to
the facts, as found by the courts or admitted
by the parties, or deemed to exist upon their
default in the course of judicial proceedings.
Final Judgment or Order
A final order is one that disposes of the
subject matter in its entirety or terminates a
particular proceeding or action, leaving
nothing else to be done but to enforce by
execution what has been determined by the
court. (Silverio vs. Court of Appeals, G.R. No.
178933, 600 SCRA 1, September 16, 2009 citing
Tan vs. Republic of the Philippines, G.R. No.
170740, 523 SCRA 203, May 25, 2007)
When a judgment becomes final and
executory, it becomes immutable and
unalterable. The court loses jurisdiction over
the judgment to amend (except for clerical
errors) or alter the same but it retains
jurisdiction to execute it during its lifetime
(Equatorial Realty Development, Inc. vs. Mayfair
Theater, 332 SCRA 139).
 Once the dismissal attains the attribute of
finality, the trial court cannot impose legal
fees anew because a final and executory
dismissal although without prejudice
divests the trial court of jurisdiction over
the civil case as well as any residual
power to order anything relative to the
dismissed case; it would have to wait until
the complaint is docketed once again.
(RCBC vs. Magwin Marketing, G.R. No. 152878,
May 5, 2003)
Exception to the immutability and
inalterability of final decision: (Hulst vs. PR
Builders, Inc., G.R. No. 156364, 566 SCRA 333,
September 25, 2008)
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 the correction of clerical errors, the so-
called nunc pro tunc entries which cause
no prejudice to any party, void judgments
 whenever circumstances transpire after
the finality of the decision rendering its
execution unjust and inequitable
Formal Requisites
1) It should be in writing;
2) The judgment must be personally and
directly written and prepared by the
judge;
3) It must state clearly and distinctly the
facts and law on which it is based;
4) It should be signed by the judge and filed
with the clerk of court; and
5) The judgment must be entered because a
judgment which is not entered has only
become final but not executory.
Requisites of a Valid Judgment:
1. The Court must have jurisdiction over
the parties and the subject matter;
2. The Court and the tribunal must be
clothed with judicial authority to hear
and determine the matter before it;
3. The evidence must have been
considered by the tribunal in deciding
the case; and
4. The parties must have been given an
opprotunity to be heard.
3.Q.1 Judgment without trial
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
 Where the pleadings of the parties tender
no issue at all, a judgment on the
pleadings may be directed by the court
(Rule 34)
 Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment (Rule 35)
 Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial
is in progress (Rule 18 of the ROC; Article
2028 of the Civil Code of the Philippines)
 Where the complaint has been dismissed
with prejudice or when the dismissal has
the effect of an adjudication on the merits
(Sec., 5, Rule 16; Sec., 3, Rule 17; Sec. 5, last
par., Rule 7 of the ROC)
 Where the case falls under the operation
of the Rules on Summary Procedure.
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 Where, the parties 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. If, however, there is no
agreement as to all the facts in the case,
trial may be held only as to the disputed
facts (Sec. 6, Rule 30)
3.Q.2 Contents of Judgment
Parts of a Judgment:
 Opinion of the court (findings of facts and
conclusion of law). (ratio decidendi)
 Disposition of the case (contained in the
dispositive portion).
 Signature of the judge.
The general rule is that where there is a
conflict between the fallo and the ratio
decidendi, the fallo controls. This rule
rests on the theory that the fallo is the final
order while the opinion in the body is merely
a statement ordering nothing.
The power to amend a judgment is inherent
to the court before judgment becomes final
and executory.
A judgment on the pleadings may be rendered
upon motion of the claimant/plaintiff.
While the case is still on pre-trial, the court
may render a judgment on the pleadings motu
propio if it finds that such a judgment is
proper.
3.Q.4 Judgment on the pleadings
Grounds:
If the answer fails to tender an issue:
 General denial of the material allegations
of the complaint.
 Insufficient denial of the material
allegations of the complaint.
 Admits the material allegation of the
adverse party‘s pleading.

Exception: Where the inevitable conclusion Note: By moving for judgment on the
from the body of the decision is so clear that pleadings, plaintiff waives his claim for
there was a mere mistake in the dispositive unliquidated damages. Claims for such
portion, the body of the decision prevails. damages must be alleged and proved.

Promulgation is the process by which a When Not Allowed:

decision is published, officially announced,  When the answer raises an issue;
made known to the public or delivered to the  In an action for declaration of nullity of
Clerk of Court for filing, coupled with notice to marriage.
the parties or their counsel.  In an action for legal separation; and
 In an action for annulment of marriage
3.Q.3. Memorandum decision  When the issue is the amount of
unliquidated damages
It is the judgment or final resolution of the MOTION FOR
MOTION TO
appellate court adopting by reference the JUDGMENT ON THE
DISMISS
findings of facts and conclusion of law PLEADINGS
contained in a decision of the trial court. Filed by defendant on Filed by the plaintiff if the
complaint, answer raises no issue
counterclaim, cross-
Judicial Compromise is a judgment based on a claim or third-party
compromise which has the force of law and is complaint
conclusive between the parties, hence not If no cause of action, Not proper remedy
appealable. motion to dismiss
Rendition of Judgment is the act of filing the should be filed
signed decision with the Clerk of Court.
3.Q.4. Summary judgments
This includes an amended decision, which is a
distinct and separate judgment and must  A summary judgment is one granted upon
follow the established rule. motion by a party for an expeditious

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settlement of the case, there appearing
from the pleadings, depositions,
admissions, and affidavits that there are
no important questions or issues of fact
posed (except as to the amount of
damages) and therefore, the moving party
is entitled to a judgment as a matter of
law. (Garcia vs. Court of Appeals, G.R. No.
117032, July 27, 2000)
 Summary judgment may be granted when
a party failed to answer a request for
admission.
It is a settled rule that summary judgment
may be granted if the facts which stand
admitted by reason of a party's failure to
deny statements contained in a request
for admission show that no material issue
of fact exists. By its failure to answer the
other party's request for admission,
petitioner has admitted all the material
facts necessary for judgment against
itself. (Allied Agri-Business Development Co.
Inc. vs. Court of Appeals, G.R. No. 118438,
December 4, 1998)
Trial courts are authorized to grant relief
by summary judgment. This is intended
to expedite or promptly dispose of cases
where the facts appear undisputed and
certain from the pleading admissions and
affidavits. This rule does not vest in the
court summary jurisdiction to try the issue
on pleadings and affidavits but gives the
court limited authority to enter summary
judgment only if it clearly appears that
there is no genuine issue of material fact
(Velasco v. CA 156 SCRA 753, 2005).
Genuine Issue - an issue of fact which calls
for the presentation of evidence; distinguished
from an issue which is sham, fictitious,
contrived, set-up in bad faith and patently
unsubstantial so as not to constitute a genuine
issue for trial.
This can be determined by the court on the
basis of the pleadings, admissions,
documents, affidavits and/or counter-affidavits
submitted.
Who Can File/When to File:
3.Q.4.A. For the Claimant:
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He must wait for the Answer to be filed and
served before he can move for summary
judgment. (Sec. 1, Rule 35).
3.Q.4.B. For the Defendant:
He can move for summary judgment at any
time after filing and service of the complaint,
even before he answers. (Sec. 2, Rule 35).
3.Q.4.C. When the 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 proceedings 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.
Burden of Proof: Lies with the party movant
who must demonstrate clearly the absence of
any genuine issue of fact, or that the issue
posed in the complaint is so patently
unsubstantial as not to constitute a genuine
issue for trial, and any doubt as to the
existence of such an issue is resolved against
the movant.
3.Q.4.D. Affidavits and Attachments
The motion for summary judgment must be
supported by:
 Affidavit
 Depositions or admission of the adverse
party or a third party, for a summary
judgment in his favor upon all or any part
thereof.
Admissions of the adverse party which must
tend to show that:
 There is no genuine issue as to any
material fact, except damages which must
always be proved; and
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 The movant is entitled to a judgment as a Exception: Where an appeal cannot afford an

matter of law adequate and expeditious relief to prevent
irreparable damage and injury, Certiorari can
Requisites of Affidavit: be allowed, such as where there was
 Made on personal knowledge absolutely no legal basis for the issuance of a
 Set forth such facts as would be summary judgment.
admissible in evidence
 Shall show affirmatively that the affiant is 3.Q.6. Judgment on the pleadings
competent to testify to the matters stated versus summary judgment
therein.
Judgment on the
Summary Judgment
Note: Certified true copies of all papers or Pleadings
parts thereof referred to in the affidavit shall Based on the pleadings, Based solely on the
be attached thereto or served therewith. depositions, admission pleadings.
and affidavits
Available to both Generally available only
Summary Judgment, Judgment on the
plaintiff and defendant. to the plaintiff, unless
Pleadings, and Judgment by Default the defendant presents
Distinguished a counterclaim.

JUDGMENT ON There is no genuine The answer fails to

SUMMARY JUDGMENT
THE issue between the tender an issue or
JUDGMENT BY DEFAULT
PLEADINGS parties. i.e there may there is an admission
Based on be issues but these are of material allegations.
the Based on the irrelevant.
pleadings, complaint and 10-day notice required. 3-days notice required.
Based solely on
depositions, evidence, if Nay be interlocutory or Available in any action
the pleadings.
admissions presentation on the merits. except annulment of
and is required. marriage or legal
affidavits. separation cases.
Generally
Available to available to the If filed by plaintiff, it There is already an
both plaintiff plaintiff, unless Available to must be filed at any answer filed.
and the defendant plaintiff. time after an answer is
defendant. presents a served; if filed by
counterclaim. defendant, may be filed
The answer fails There is no at any time even before
There is no
to tender an issue because there is an answer
genuine
issue or there is no answer is
issue
an admission of filed by the
between the
material defending
parties. 3.Q.7. Rendition of judgments and final
allegations. party.
10-day
orders
3-day notice 3-day notice
notice
required. rule applies. Rendition of judgment or a final order is the
required.
May be filing of the same with the clerk of court. It is
interlocutory not the writing of the judgment or its signing
On the merits. On the merits.
or on the which constitutes rendition of the judgment.
merits.
In rendering the judgment or final order
determining the merits of the case, the same
Remedy against summary judgment shall be in writing personally and directly
prepared by the judge, stating clearly and
General Rule: A summary judgment is a distinctly the facts and law on which it is
FINAL DISPOSITION in a legal suit which can based, signed by him and filed with the clerk
be rectified by means of an APPEAL. of court.

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3.Q.8. Entry of judgment or final order
―The date of finality of the judgment or final
order shall be deemed to be the date of its
entry‖ (impt.)
Entry of judgment - means the recording
of the dispositive part of a judgment or final
order by the clerk of court in the book of
entries of judgments.
A judgment or order becomes final after 15
days, when no appeal, motion for
reconsideration or motion for new trial is filed.
When the judgment becomes final and
executory, such date is deemed the date of
entry of judgment. The actual date of entry
retroacts to the date of the finality of
judgment. (Sec. 2, Rule 36)
Note: Point of reference of the 15 day period-
From receipt or notice of judgment.
Rule of Immutability of Judgment
A final judgment cannot be modified, even if
the purpose is to correct perceived erroneous
conclusions of the facts or law.
Exceptions:
 To make corrections of clerical errors, not
substantial amendments, as by an
amendment nunc pro tunc;
 To clarify an ambiguity which is borne out
by and justifiable in the context of the
decision;
 Where the judgment is void; or
 In judgments for support, it can always be
amended from time to time.
Manner of assailing judgments
Direct attack
a. Before finality
 Motion for Reconsideration / New Trial
 Appeal
b. After finality
 Relief from judgment under Rule 38
 Annulment of Judgment under Rule
47
 Collateral attack
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Collateral attack is made when, in another
action to obtain a different relief, an attack on
the judgment is made as an incident in said
judgment. This is proper only when the
judgment, on its face, is null and void, as
where it is patent that the court which
rendered said judgment has no jurisdiction.
(CO. vs. C.A., 196 SCRA 705)
Special forms of judgments
 Judgment by Default (Sec. 3, Rule 9);
 Judgment on the Pleadings (Rule 34);
 Summary Judgment (Rule 35);
 Several Judgment (Rule 36);
 Separate Judgment (Sec. 5, Rule 36);
 Special Judgment (Sec. 11, Rule 39);
 Judgment for Specific Acts (Sec. 10, Rule
39);
 Judgment upon Confession;
 Judgment upon Compromise, or on consent
or agreement;
 Clarificatory Judgment;
 Judgment nunc pro tunc.
Several Judgment
This is proper where the liability of each party
is clearly separable and distinct from his co-
parties such that the claims against each of
them could have been the subject of separate
suits and the judgment for or against one of
them will not necessarily affect the other.
This is not proper in actions against solidary
debtors.
Separate Judgments
This is proper where more than one claim for
relief is presented in an action and a
determination as to the issues material to the
claim has been made. The action shall
proceed as to the remaining claims.
Cannot be executed without the other
judgment, EXCEPT with leave of court.
Court must stay the enforcement, until the
rendition of subsequent judgment.
No appeal may be taken from separate
judgment, unless the law allows it.
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Judgment upon Agreement or is immediately executory, unless a motion is

Compromise filed to set aside the agreement on the ground
of fraud, mistake, or duress, in which case, an
A compromise agreement between the parties appeal may be taken against the order
to a case and upon which the decision of the denying the motion. (Journalists, Inc. vs. NLRC,
court was based has the effect and authority G.R. No. 169421, September 5, 2006).
of res judicata upon such parties.
Judgment by Confession Distinguished
It is immediately executory, however, such From Judgment upon Compromise
extrajudicial compromise, may not be
enforced by execution. (Art. 2037, New Civil JUDGMENT BY JUDGMENT UPON
Code) COMPROMISE CONFESSION
The provisions and An affirmative and
If the compromise is attended by fraud, terms are settled and voluntary act of the
agreed upon by the defendant himself. The
mistake or duress, a motion to set aside the
parties to the action court exercises a certain
compromise may be made. and which is entered amount of supervision
in the record with the over the entry of
Other remedies include a petition for relief or consent of the court. judgment.
a new action to annul the compromise
agreement. Clarificatory judgment - is a judgment
rendered by the court, upon motion, when a
Judgment by Confession judgment previously rendered is ambiguous
One which is rendered against a party upon and difficult to comply with.
his petition or consent. Amended or Clarified Judgment Distinguished
From Supplemental Decision
This usually happens when the defendant
appears in court and confesses the right of the AMENDED OR
plaintiff to judgment or files a pleading SUPPLEMENTAL
CLARIFIED
DECISION
expressly agreeing to the plaintiff‘s demand. JUDGMENT
It is an entirely new Does not take the place
Two kinds of judgment by confession: decision which of or extinguish the
supersedes the original original judgment.
judgment.
Judgment by cognovit actionem – the
Court makes a Serves to bolster or
defendant after service, instead of entering a
thorough study of the add to the original
plea, acknowledges and confesses that the original judgment and judgment.
plaintiff‘s cause of action was just and rightful. renders the amended
and clarified judgment
Judgment by confession relicta only after considering
verificacione – after pleading and before all the factual and legal
trial, the defendant both confesses the issues.
plaintiff‘s cause of action and withdraws or
abandons his plea or other allegation Judgment Nunc Pro Tunc
whereupon judgment was entered against him Literally means judgment rendered by the
without proceeding to trial. court ―now for then‖

Judgment upon confession and compromise It is rendered to enter or record such

cannot be entered into by counsel without the
knowledge and special authority of the client.
(Manufacturer‘s Bank and Trust Co. vs. Woodworks,
Inc., 36 SCRA 562)
A judgment rendered in accordance with a
compromise agreement is not appealable, and
judgment as has been formerly rendered but
does not appear on the record.
Its only function is to record some act of the
court which was done at a former time, but
which was not recorded then, in order to

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make the record speak the truth, without any aggrieved party was
changes in substance or any material respect. impaired; or
2. Newly discovered
Remedies against executory judgment evidence, which could
not with reasonable
diligence, have been
Petition for Relief under Rule 38 discovered and
A direct attack against the judgment produced at the trial,
A collateral attack against the judgment and which if
presented, would
Direct attack – Against the judgment is probably alter the
made through an action or proceeding, the result (Sec. 1, Rule
main object of which is to annul, set aside, or 37).
enjoin the enforcement of such judgment, if
not yet carried into effect, or if the property Motion for New Trial
has been disposed of, the aggrieved party
may sue for its recovery. This is necessary Fraud, accident, mistake and excusable
where a judgment does not, on its face, reveal negligence (FAME)
the nullity or the fact that it is vitiated by
consent. Intentional omission of a fact necessary to
establish the truth.
Collateral attack – Is made when, in
another action to obtain a different relief, an Must be extrinsic or collateral, i.e., the kind of
attack on the judgment is made as an incident fraud that prevented the aggrieved party from
in said judgment. This is proper only when having a trial or presenting his case to the
the judgment, on its face, is null and court, or was used to procure the judgment
void, as where it is patent that the court without fair submission of the controversy.
which rendered said judgment has no
jurisdiction. (Co. vs. C.A. 196 SCRA 705). It is to be distinguished from intrinsic fraud
which refers to the act of a party in a trial
3.R. POST JUDGMENT REMEDIES which prevented a fair and just determination
of the case and which could have been
litigated and determined at the trial or
3.R.1 Motion for New Trial or
adjudication of the case, such as falsification,
Reconsideration
false testimony, and so forth, and does not
constitute a ground for new trial.
Definition

The re-hearing of a case previously decided by Accident

the court before the judgment rendered,
becomes final and executory, whereby errors
of law or irregularities are expunged from the
record, or where new evidence is introduced,
or both.
An event beyond the control of the party.
 There is accident when there is an actual
surprise incident preventing one from
attending the trial.

3.R.1.A. Grounds: Mistake

Mistake generally refers to mistake of facts but
MOTION FOR NEW MOTION FOR may also include mistakes of law where, in
TRIAL RECONSIDERATION good faith, the defendant was misled in the
1. Extrinsic fraud, 1. The damages case.
accident, mistake or awarded are
excusable negligence excessive; General Rule: A client is bound by the
(FAME) which 2. The evidence is
mistakes of his counsel.
ordinary prudence insufficient to satisfy
could not have the decision or final
guarded against and order; or Exception: The client is not bound if the
by reason of which 3. The decisionor final application of the general rule would result in
the rights of the order is contrary serious injustice.

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Excusable Negligence
Negligence must be excusable and generally
imputable to the party, but the negligence of
the counsel is binding on the client. However,
negligence of the counsel may also be a
ground for new trial if it was so great such
that the party was prejudiced and prevented
from fairly presenting his case.
Which ordinary prudence could not have
guarded against and by reason of which such
aggrieved party has probably been impaired in
his rights; or
Newly Discovered Evidence
Which he could not, with reasonable diligence,
have discovered and if produced at the trial,
and if presented would probably alter the
result.
 The Berry Rule (Berry vs. State of Georgia,
1891)
Before a new trial may be granted on the
ground of NEWLY DISCOVERED EVIDENCE,
the following must be shown:
 The evidence was discovered after trial;
 Such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
 It is material and not merely
corroborative, cumulative or impeaching;
 The evidence is of such weight that it
would probably change the judgment if
admitted. (Custodio vs. Sandiganbayan, 453
SCRA 24)
Two aspects of newly discovered
evidence:
Temporal – when was the evidence
discovered;
Predictive – when should or could it have
been discovered (with the exercise of due
diligence).
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 For evidence to be considered as newly
discovered, it is essential that the offering
party exercised reasonable diligence in
seeking to locate such evidence before or
during trial, but nonetheless failed to
secure it; not so much the time when the
evidence offered first sprang into
existence nor the time when it first came
to the knowledge of the party now
submitting. (Custodio vs. Sandiganbayan, 453
SCRA 24).
A motion for new trial or for reconsideration, if
timely filed will toll the running of the
reglementary period for appeal except when
the same is pro-forma.
Note: When the ground is FAME, the motion
must be supported by an affidavit of merit.
When the ground relied upon is newly
discovered evidence, no affidavit of merit is
required. Instead, it shall be supported by
affidavits of witnesses or by duly
authenticated documents.
Contents of Motion for New Trial (Sec. 2,
Rule 37)
The motion shall be made in writing, stating
the ground thereof, and a written notice of
which shall be served by the movant on the
adverse party.
If the motion is based on FAME, it shall be
supported by Affidavit of Merit.
If the motion is based on newly discovered
evidence, it shall be supported by the
affidavits of the witnesses by whom such
evidence is expected to be given, or by duly
authenticated documents which are proposed
to be introduced by evidence. (Sec. 2, Rule 37)
Pro Forma Motion for New Trial
 It is one which merely reiterates the
evidence presented in the trial (Llantero vs.
CA, 105 SCRA 609) or based on grounds
existing when the first motion was filed.
(Cruz vs. Villaluz, 88 SCRA 506).
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When Motion for New Trial is Considered
Pro Forma
Based on the same grounds as that raised in a
preceding motion for new trial or
reconsideration already denied;
Contains the same arguments and manner of
discussion appearing in the prior opposition to
the granted motion to dismiss;
New ground alleged in the motion for new trial
already existed and was available and could
have been alleged in the first motion for new
trial which was denied;
Based on ground of insufficiency of evidence
or that the judgment is contrary to law but
does not specify the supposed defects in the
judgment; or
It is based on the ground of FAME but does
not specify the facts constituting these
grounds and/or is not accompanied by an
affidavit of merits.
Pro Forma Motion For Reconsideration–
It is one which fails to point out specifically
the findings or conclusions of the judgment or
final order which are not supported by
evidence or which are contrary to law, making
express reference to the testimonial or
documentary evidence or to the provisions of
law alleged to be contrary to such findings or
conclusion.
Notes: A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal already stated.
Pro Forma rule is not applicable in criminal
cases.
Affidavit of merit states:
The nature or character of the fraud, accident,
mistake, or excusable negligence on which the
motion for new trial is based;
The facts constituting the movant‘s good and
substantial and valid defenses are valid causes
of action; and
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The evidence of which he intends to present if
his motion is granted.
Instances when Affidavit of Merit May
Be Dispensed With:
 When the judgment is null and void;
 When the judgment is procedurally
defective; and
 When the defendant was unreasonably
deprived of his day in court.
Motion for Reopening a Trial is a
recognized procedural recourse or device
deriving validity and acceptance from long
established usage. It differs from a Motion for
a New Trial, which is proper only after the
promulgation of judgment, since a Motion to
re open may be properly presented only after
either or both parties have formally offered
and closed their evidence before judgment.
Motion for Reconsideration
Purpose: to reconsider or amend judgment
or final order.
Where to File: with the trial court which
rendered the judgment or final order sought
to be reconsidered.
 The Motion for Reconsideration shall be in
writing and notice thereof must be given
to the adverse party. It must also contain
a notice of hearing. In other words, it
must comply with the rules on motion. If
it does not, it will be considered only a pro
forma motion and will not have the effect
of suspending or interrupting the period to
appeal. The suspension of the period for
appeal presupposes that the motion is not
pro forma.
 The Motion for Reconsideration shall point
out specifically the findings or conclusion
of the judgment not supported by the
evidence or which are contrary to law.
Mere general assertions that a ground for
reconsideration exists will not suffice,
otherwise the motion shall be deemed a
pro forma motion.
Prohibition
 A Motion for new trial, or for
reconsideration of a judgment, or for

reopening of trial, is a prohibited pleading
under Section 19 of the Revised Rule on
Summary Procedure. This rule, however,
applies only where the judgment sought
to be reconsidered is one rendered on the
merits. "The motion prohibited by this
Section is that which seeks
reconsideration of the judgment rendered
by the court after trial on the merits of the
case." (Lucas v. Fabros 324 SCRA 1)
3.R.1.B. When to file
Motion for new trial or Motion for
reconsideration must be filed within the period
for taking an appeal.
 Appeal by Notice of Appeal - 15 days
after notice to the appellant of the
judgment or final order appealed from.
 Appeal by Record on Appeal - 30 days
from notice of the judgment or final
order.
Notes: 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 is permitted
when based on a ground neither existing, nor
available when the first motion was made. A
second Motion for Reconsideration is NOT
allowed. (Sec. 5, Rule 37).
Where a party first filed a motion for
reconsideration, he shall be entitled to another
15 days within which to file a motion for new
trial from notice of denial of his motion for
reconsideration. The 15 day period does not
include that which have elapsed from the
notice of judgment to the time when the
motion for reconsideration was filed.
Motion for New Trial or Motion for
Reconsideration that does not comply with the
requirements of notice of hearing and proof of
service does not also toll the reglementary
period of appeal. (Cledra vs. Sarmiento, 39 SCRA
552).
If the motion is denied, the movants has a
―fresh period‖ of fifteen days from receipt or
notice of the order denying or dismissing the
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motion for reconsideration within which to file
a notice of appeal;
When the motion for new trial is denied on the
ground of fraud, accident, mistake of fact or
law, or excusable negligence, the aggrieved
party can no longer avail of the remedy of
petition for relief from judgment (Francisco vs.
Puno, 108 SCRA 427).
3.R.1.C. Denial of the Motion; Effects
Court 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 it 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.
3.R.1.D. Granting of Motion; Effect
The original judgment 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 material and
competent to establish the issues, shall be
used as the new trial without re-taking the
same. (Sec. 6, Rule 37)
Partial New Trial or Reconsideration
If the grounds for a motion under thus Rule
affect the issues as to only a part, or less than
all of the matters 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, without interfering with the
judgment or final order upon the rest. (Sec. 7,
Rule 37)
Upon issuance of an order for partial new trial,
the court may either:
 Enter judgment or final order as to the
rest; or
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 Stay the enforcement of such judgment or
final order until after the new trial.
Where one party files a Motion for New Trial
or Reconsideration and the other party seeks
to perfect an appeal from the said decision,
the court should withhold action on the appeal
until after the Motion for New Trial or
Reconsideration shall have been resolved.
3.R.1.E. Remedy When Motion is Denied;
Fresh 15-day Period Rule
An order denying a motion for new trial or
reconsideration is not appealable.
The “Fresh Period Rule”
 If the Motion for Reconsideration or
Motion for New Trial is denied, the movant
has a new period of 15 days to file an
appeal if he so desires, counted from the
receipt of the notice or order denying the
motion. Hence, if he files a Motion for
reconsideration on the 10th day from
notice of the judgment and the motion is
denied, he does not have only the
remainder of the 15-day period to appeal,
but a fresh period of 15 days to appeal to
file his appeal (Neypes vs. CA, 469 SCRA
633).
3.R.2 Appeals In General
Right to appeal is not part of due process but
a mere statutory privilege that has to be
exercised only in the manner and in
accordance with the provisions of law (Unified
Field Sea Watchman and Checkers Agency, G. R.
No. 143527, December 6, 2006).
3.R.2.A. Judgements and Final Orders
Subject to 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.
(Rule 41, Sec.1, par 1).
3.R.2.B. Matters not Appealable as
amended by A.M. No. 07-7-12-SC, 27 Dec.
2007, Sec.1, Rule 41- removed- Order denying
a motion for reconsideration and new trial)
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 An order denying a petition for relief or
any similar motion seeking relief from
judgment;
 An interlocutory order;
 An order disallowing or dismissing an
appeal;
 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;
 An order of execution.
 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 there from.
 An order dismissing an action without
prejudice (Rule 41, Sec.1 par 2)
 Judgment of direct contempt. (Rule 71
Sec. 2. remedies are Certiorari or Prohibition
but not appeal)
3.R.2.C. Remedy Against Judgments and
Orders Which are not Appealable
In those instances where the judgment or the
final order is not appealable, the aggrieved
party may file the appropriate special civil
action under rule 65 (Section 1, Rule 41, rules of
court).– refers to the special civil actions of
certiorari, prohibition and mandamus.
However, as of December 27, 2007, an
aggrieved party may no longer assail an order
denying a motion for new trial or a motion for
reconsideration by way of Rule 65 as per A.M.
No. 07-7-12-SC, such ground having been
removed from the enumeration in Sec.1 of
Rule 41. The proper remedy is to appeal from
the judgment (Sec. 9, Rule 37).
 A motion for reconsideration is not putting
forward a new issue, or presenting new
evidence, or changing the theory of the
case, but is only seeking a reconsideration
of the judgment or final order based on
the same issues, contentions, and
evidence either because: (a) the damages
awarded are excessive; or (b) the
evidence is insufficient to justify the
decision or final order; or (c) the decision
or final order is contrary to law. By

denying a motion for reconsideration, or
by granting it only partially, therefore, a
trial court finds no reason either to
reverse or to modify its judgment or final
order, and leaves the judgment or final
order to stand. The remedy from the
denial is to assail the denial in the course
of an appeal of the judgment or final
order itself. (Heirs of Reterta vs. Mores, G.R.
No. 159941, August 17, 2011)
3.R.2.D. Final Judgment Rule; Exceptions
Final Judgment Rule/Doctrine of
Immutability of a Final Judgment
Decisions which attained finality can no longer
be altered, amended or modified, even if the
alteration, amendment or modification was
meant to correct what was perceived to be an
erroneous conclusion of fact or of law and
regardless of what court, be it the highest
Court of the land, rendered it.
Exceptions
Doctrine of immutability of a final judgment,
which may be relaxed only to serve the ends
of substantial justice in order to consider
certain circumstances like:
1. matters of life, liberty, honor or
property;
2. the existence of special or compelling
circumstances;
3. the merits of the case;
4. the cause not being entirely attributable
to the fault or negligence of the party
favored by the suspension of the
doctrine;
5. the lack of any showing that the review
sought is merely frivolous and dilatory;
or
6. the other party will not be unjustly
prejudiced by the suspension.
Supervening event
A supervening event consists of facts that
transpire after the judgment became final
and executory, or of new circumstances that
develop after the judgment attained finality,
including matters that the parties were not
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aware of prior to or during the trial because
such matters were not yet in existence at
that time.
Supervening event is an exception to the
execution as a matter of right of a final and
immutable judgment rule, only if it directly
affects the matter already litigated and
settled, or substantially changes the rights
or relations of the parties therein as to
render the execution unjust, impossible or
inequitable.
3.R.2.E. Modes of Appeal
The three modes of appeal are:
1. Ordinary appeal (Rule 40 and 41)
2. Petition for review (Rule 42, 43)
3. Appeal by Certiorari(Rule 45)
3.R.2.E.1. Ordinary Appeal
Kinds
1. Notice of appeal
2. Record on appeal – Only in cases of
special proceedings and other cases of
multiple or separate appeals where law
on these Rules so require.
Applicable to:
1. Appeal to the RTC in cases decided by
the MTC
2. Appeal to the Court of Appeals in cases
decided by RTC in the exercise of
original jurisdiction.
3.R.2.E.2. Petition for Review
Applicable to:
3. Appeal to the Court of Appeals in cases
decided by the Regional Trial Court in
the exercise of its appellate jurisdiction
4. Appeal to the Court of Appeals in cases
decided by Quasi-judicial Bodies
3.R.2.E.3. 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
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certiorari in accordance with the Rule 45. the approval due time and
(Revised Rules of Court, Rule 41, Sec.2) of the record the expiration
on appeal of the time to
3.R.2.F. Issues to be Raised on Appeal appeal of the
filed in due
other parties
time and
Modes of Appeal Issues to be Raised upon
Ordinary appeal (MTC Questions of fact or payment of
to RTC) mixed questions of the appellate
fact and law. court docket
Ordinary appeal (RTC Question of law or fee.
to CA) fact that has been By petition Deemed RTC loses
raised in the court for review perfected jurisdiction
below and which is upon the over the case
within the issues upon the
timely filing
perfection of
framed by the parties. of a petition
the appeal and
Petition for Review Questions of fact, of for review the expiration
(RTC to CA) law, or mixed and the of the time to
questions of fact and payment of appeal of the
law. the other parties.
Petition for Review Questions of fact, of corresponding
(Quasi-judicial bodies law, or mixed docket and
to CA) questions of fact and other lawful
law. fees
Appeal by Certiorari Only questions of law
 The notice of appeal does not require the
3.R.2.G. Periods for Appeal approval of the court. The function of the
notice of appeal is merely to notify the
Notice of Appeal Record on Appeal trial court that the appellant was availing
15 days after notice 30 days from notice of the right to appeal, and not to seek the
to the appellant of of the judgment or court‘s permission that he be allowed to
the judgment or final final order. pose an appeal (Crisologo vs. Daray, A.M.
No. RTJ-07-2036, August 30, 2006).
order appealed from.
Perfection of appeal within the reglementary
3.R.2.H. Perfection of Appeal
period is jurisdictional except when there has
Mode of When Effect been extrinsic fraud, accident, mistake, or
Appeal Perfected excusable negligence (FAME) (Habaluyas v.
By Notice of deemed The court loses Japson, 142 SCRA 208 (1986).
appeal perfected as to jurisdiction
him upon the over the case Payment of docket fee is jurisdictional. The
filing of the upon the failure to pay appellate court docket fee within
notice of perfection of the reglementary period allows only
appeal in due the appeal filed discretionary dismissal and not automatic
time and in due time
dismissal, of the appeal. Such power should
payment of the and the
required docket expiration of
be used in the exercise of the court‘s sound
fee and other the time to discretion (Republic v. Spouses Luriz, GR No.
lawful fees. appeal of the 158992, January 26, 2007).
other parties.
by record on deemed The court loses 3.R.2.I. Participation of the Solicitor
appeal perfected as jurisdiction General during Appeal
to him with only over the
subject matter The OSG, as principal law officer and legal
respect to the
upon the defender of the government, possesses the
subject
approval of the unequivocal mandate to appear for and in its
matter records on
thereof upon behalf in legal proceedings. Described as an
appeal filed in
"independent and autonomous office attached

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to the Department of Justice" under Sec. 34,
Book IV, Title III, Chapter 12, Executive Order
292, the OSG, with the Solicitor General at its
helm, is vested with the following powers and
functions, among others, to wit:
SECTION 35. Powers and Functions.—The
Office of the Solicitor General shall represent
the Government of the Philippines, its
agencies and instrumentalities and its officials
and agents in any litigation, proceeding,
investigation or matter requiring the services
of a lawyer. When authorized by the President
or head of the office concerned, it shall also
represent government-owned or controlled
corporations. The Office of the Solicitor
General shall constitute the law office of the
Government and, as such, shall discharge
duties requiring the services of a lawyer. It
shall have the following specific powers and
functions:
(1) Represent the Government in the Supreme
Court and the Court of Appeals in all criminal
proceedings; represent the Government and
its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which
the Government or any officer thereof in his
official capacity is a party.
3.R.2.J. Appeal from Judgments or Final
Orders of the MTC
An appeal from a judgment or final order of a
MTC shall be taken to the RTC exercising
jurisdiction over the area which the former
pertains (Sec.1, Rule 40, Rules of Court).
Note: The appeal is taken by filing a notice of
appeal with the court that rendered the
judgment, which is the MTC. Do not file the
notice of appeal with the RTC.
In cases involving a special proceeding or in
case of multiple appeals, a record on appeal
shall be required. Copies of the notice of
appeal and the record on appeal shall be
served on the adverse party. Within the period
for appeal, the appellant shall pay to the clerk
of the MTC the full amount of the appellate
docket fee and other lawful fees.
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A party‘s notice of appeal is deemed perfected
upon the filing of the notice of appeal in due
time. In appeals by record on appeal, the
appeal is perfected upon the approval of the
record on appeal filed in due time (Sec. 4, Rule
40 in relation to Sec.9, Rule 41, Rules of Court).
After an appeal to the RTC has been
perfected, the MTC loses its jurisdiction over
the case and any motion for the execution of
the judgment should be filed with the RTC.
For the appellant, the filing of a memorandum
which shall briefly discuss the errors imputed
to the lower court is vital. Failure to so file
shall be a ground for the dismissal of the
appeal (Sec.7[b], Rule 40, Rules of Court).
The case shall be deemed submitted for
decision upon the filing of the memorandum
of the appellee, or the expiration of the period
to do so.
The Summary Rules no longer apply when the
case is on appeal.
How to Appeal
(Sec. 3, Rule 40)
By Notice of Appeal
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.
By Record on Appeal
It 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.
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Appellate court docket and other lawful
fees (Sec. 5, Rule 40)
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 with the
original record or the record on appeal, as the
case may be.
Duty of the clerk of court
(Sec. 6, Rule 40)
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.
3.R.2.K. Appeal from Judgments or Final
Orders of the RTC
(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.
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Appeal from Orders Dismissing Case
without Trial: Lack of Jurisdiction
(Sec. 8, Rule 40)
If lower court dismissed the case
without trial on the merits:
The Regional Trial Court may;
 Affirm, or
 Reverse, in which case, it shall remand
the case for further proceedings.
If dismissal is due to lack of jurisdiction
over the subject matter:
The Regional Trial Court may:
 Affirm, if RTC has jurisdiction, shall try the
case on the merits as if the case was
originally filed with it, or
 Reverse, in which case, it remands the
case for further proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter: RTC shall not dismiss the case
if it has original jurisdiction, but shall decide
the case, and shall admit amended pleadings
or additional evidence.
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.
Amendment to Rule 41: An order denying a
motion for new trial or reconsideration is not
appealable (A.M. No. 07-7-12-SC Effective 27 Dec.
2007).
When to Appeal:
 Within 15 days after notice of judgment or
final order;
 Where a record on appeal is required,
within 30 days from notice of judgment or
final order by filing a notice of appeal and
a record on appeal.
 Period to appeal shall be interrupted by a
timely Motion for New Trial or
Reconsideration.
 As it stands now without exception, is that
the 15-day reglementary period for

appealing or filing a motion for
reconsideration or new trial cannot be
extended, except in cases before this
Court, as one of last resort, which may, in
its sound discretion grant the extension
requested. (Estinozo vs. CA, G.R. No. 150276,
February 12, 2008)
How to appeal
A. By notice of appeal:
 File a notice of appeal with the trial
court;
The notice of appeal must indicate:
 Parties;
 Judgment or final order appealed
from; and
 Material date showing timeliness of
appeal Material Date Rule.
 A copy must be served on the adverse
party; and
 Payment in full of docket fees and
other lawful fees with RTC.
B. By record on appeal:
a) For special proceedings such as
probate;
b) In such other cases where multiple
appeals are allowed as in partition and
in expropriation.
When is appeal deemed perfected:
 By notice of appeal: as to him, upon the
filing of the notice of appeal in due time.
 By record on appeal: as to him, upon the
approval of the record on appeal filed in
due time.
 Payment of docket fees
 Service of copy
Effect of a perfected appeal:
The court loses jurisdiction upon the
perfection or approval of appeal and when the
period of appeal for other parties expire.
However, prior to the transmittal of the
original record or record on appeal, the court
may, under its
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Residual Jurisdiction:
 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 Sec. 2, Rule 39, allow
withdrawal of appeal
Effect of non-payment of appellate
docket fees
 Payment in full of docket fees within the
prescribed period is mandatory. It is an
essential requirement without which the
decision appealed from would become
final and executory as if no appeal had
been filed. Failure to perfect an appeal
within the prescribed period is not a mere
technicality but a jurisdictional defect and
failure to perfect an appeal renders the
judgment final and executory. (M.A.
Santander Construction, Inc. vs. Villanueva,
441 SCRA 525). Payment of the full amount
of the docket fee is an indispensable step
for the perfection of an appeal. X x x
appeal is not perfected if only a part of
the docket fee is deposited within the
reglementary period and the remainder is
tendered after the expiration of the
period. (Saint Louis University, Inc vs.
Cobarrubias, G.R. No. 187104, August 3, 2010)
Remedy when appeal is not allowed:
Special civil action of certiorari or
prohibition under Rule 65 if there is lack or
excess of jurisdiction or grave abuse of
discretion or mandamus if there is no
performance of duty.
Note: A petition for review on certiorari under
Rule 45 and a petition for certiorari under Rule
65 are mutually exclusive remedies. Certiorari
cannot co-exist with an appeal or any other
adequate remedy. (Estinozo vs. CA. supra)
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What may be appealed? PETITION FOR
ORDINARY APPEAL
REVIEW
petition.
Only a judgment or final order that completely
Certification against Required to be
disposes of a case or of a particular matter forum shopping is not attached with the
therein when declared by the Rules of Court to required. petition.
be appealable may be the subject of an Motion for new trial or Motion for new trial or
appeal. reconsideration gives reconsideration gives
the appellant a NEW the appellant a NEW
Final Order – one which disposes of the PERIOD of fifteen (15) PERIOD of fifteen (15)
whole subject matter or terminates a days from notice of days from notice of
particular proceeding or action, leaving denial of the denial of the motion.
motion.(Neypes vs. C.A.
nothing to be done by the court (or quasi-
ibid)
court) but to enforce by execution what has
been determined. (Neypes vs. CA, 469 SCRA 633)
Requisites of ordinary appeal
Interlocutory Order – An order which does
not disposed of the case but leaves something  File a notice of appeal with the RTC that
else to be done by the trial court on the merits rendered the judgment appealed from;
of the case.  Payment of the full amount of the
appellate docket fee to the clerk of court
FINAL which rendered the judgment within the
INTERLOCUTORY reglementary period; and
JUDGMENT/
ORDER  Copy of the notice of appeal shall be
ORDER
Disposes of a case, Does not end the court‘s served upon the adverse party.
leaving nothing more task of adjudicating the
to be done by the parties‘ contentions and It was held that the appellant‘s failure to
court in respect determining their rights furnish the appellee with a copy of his appeal
thereto. and liabilities as regards was not a sufficient cause for its dismissal, for
each other.
he could simply have been ordered to furnish
Appealable May not be questioned on
the appellee with a copy of his appeal.
appeal.
Must clearly and Need not comply with
distinctly set forth such requirement. Note: There must be a phrase ―Notice of
the facts and law Appeal.‖
upon which it is
based. Perfection of the appeal within the statutory or
reglementary period is not only mandatory but
also jurisdictional, and failure to do so renders
ORDINARY APPEAL
PETITION FOR the questioned decision final and executory,
REVIEW depriving the appellate court or body of
Taken by notice of Taken by means of a jurisdiction to alter the final judgment, much
appeal or by record on petition. less to entertain the appeal.
appeal.
Notice of appeal is filed Petition is filed with,
Perfection of the appeal by one party does not
with, and the docket and the docket fee paid
fee paid to the court to the appellate court. operate to deprive the trial court of jurisdiction
that rendered the over the case.
judgment. The court may still take cognizance of the
Judgment appealed Judgment sought for other party‘s motion for execution pending
from was rendered in review was rendered in appeal, provided, such motion is filed by such
the exercise of the the exercise of its party within fifteen (15) days from notice of
court‘s original appellate jurisdiction. decision and such jurisdiction continues until
jurisdiction. the matter is resolved.
No deposit for costs is Deposit for costs is
required. required.
After the perfection of the appeal but before
A motion for extension Appellate court may
of time to file notice of grant an extension the transmittal of the record on appeal to the
appeal is not allowed. within which to file the appellate court, the trial court still retains

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jurisdiction to set aside its order approving the
record on appeal with a view to further
inquiring into the matter of whether or not
said record on appeal is complete or contains
errors.
Residual jurisdiction:
 Species of jurisdiction that the trial courts
have over cases they have decided
subsequently brought up.
This power of the court materializes upon
the perfection of the appeals by the
parties or upon the approval of the
records on appeal, but prior to the
transmittal of the original records or the
records on appeal. In either instance, the
trial court still retains its so-called residual
jurisdiction.
The CA‘s motu proprio dismissal of
petitioner‘s Complaint could not have been
based, therefore, on residual jurisdiction
under Rule 41. What the CA referred to as
residual prerogatives were the general
residual powers of the courts to dismiss
an action motu proprio upon the grounds
mentioned in Section 1 of Rule 9 of the
Rules of Court and under authority of
Section 2 of Rule 1 of the same rules.
(Katon vs. Palanca, Jr., et al., G.R. No. 151149,
September 7, 2004)
Residual powers of the court prior to the
transmittal of the original record or
record on appeal:
a) To issue orders for the preservation of the
rights of the parties which do not involve
matters litigated by appeal;
b) To approve compromise prior to the
transmittal of the record;
c) Permit appeal by an indigent;
d) Order execution pending appeal under
Section 2, Rule 39 (where the motion for
execution was filed before the expiration
of the period to appeal).
Petition for review from the regional
trial court to the court of appeals
2018
REMEDIAL LAW
PURPLE NOTES
This mode of appeal applies when the decision
of the RTC appealed from is one decided by it
in the exercise of its appellate jurisdiction.
This means that the case originated from the
MTC and appealed to the RTC.
In filing a petition for review, a notice of
appeal is not required. The appeal is done by
filing a verified petition for review directly with
the Court of Appeals.
The lower courts or judges that rendered the
judgment or final order complained of should
not be impleaded as parties since this petition
is for purposes of appeal and not petitions in
original actions.
When to Appeal:
15 days from notice of decision sought to be
reviewed or of the denial of petitioner‘s motion
for new trial or reconsideration filed in due
time after judgment.
Additional period: 15 days only, provided that
extension is sought:
 Upon proper motion
 There is payment of the full amount of
docket and other lawful fees and the
deposit for costs before the expiration of
the reglementary period.
No other extension shall be granted except for
the most compelling reason and in no case
shall extend fifteen (15) days (Sec.1, Rule 42,
Rules of Court).
How to Appeal:
 Filing a verified petition for review with
the CA
 Payment of the corresponding and other
lawful fees to the clerk of court
 Depositing the amount of P500.00 for
costs
 Furnishing the RTC and the adverse party
a copy of the petition (Sec.1, Rule 42, Rules
of Court)
Grounds for Outright Dismissal by Court
of Appeals of the Petition (Motu Proprio
Dismissal)
 Failure to comply with the requirements
on form.
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 Patently without merit.
 Prosecuted manifestly for delay.
 Questions raised are too unsubstantial to
require consideration.
2018
The failure of the appellant to make specific
assignment of errors in his brief or page
references to the record as required in Section
9 is a ground for dismissal of his appeal.

Failure to Comply with the Following General Rule: Only errors specifically
Formal Requirements is a Ground for assigned and properly argued in the brief will
Dismissal: be considered.

a) Certification against forum shopping; Exceptions:

b) Payment of docket fees and deposit for
costs; a) Errors affecting jurisdiction over the
c) Proof of service of the same petition to subject matter;
the adverse party. b) Plain and clerical errors;
c) Unassigned errors closely related to or
Petition for Review is not a matter of right but dependent upon an assigned error and
discretionary on the CA. properly argued in the brief;
d) Unassigned errors which are necessary for
It may only give due course to the petition if it a just decision in the case or, in the
shows on its face that the lower court has interest of justice, if they resolve
committed an error of fact and/or law that will questions passed upon in the trial court,
warrant a reversal or a review thereof. and are matters of record having some
bearing on the issues submitted.
The CA may either:
Appellee‟s Brief
 Require the respondent to file comment;
or  Failure to file does not affect appeal.
 Dismiss the petition on the grounds  Appellee can only make counter–
provided for above. assignment of errors to sustain judgment.
 Appellee can also argue on issues raised
Stay of Judgment at the trial to sustain the judgment in his
favor on other grounds, even if the same
General Rule: The appeal shall stay the were not included in the decision of the
judgment or final order court a quo nor raised in appellant‘s
assignment of errors or arguments.
Exception:  Appellee cannot assign error to have
judgment modified, to do so, he must
 If the CA, law or rules shall provide have appealed.
otherwise
 Civil cases decided under the Rules on QUESTION OF LAW QUESTION OF FACT
Summary Procedure (Sec.8 [b], Rule 42, Doubt or controversy Doubt or difference
Rules of Court) as to what the law is arises as to the truth or
on certain facts. falsehood of facts, or as
Ordinary Appealed Cases Procedure in to probative value of the
the Court of Appeals Appellant‟s Brief evidence presented.
Appellate court can The determination
determine the issue involves evaluation or
Failure to file appellant‘s brief on time is a raised without review of evidence.
ground for dismissal of the appeal. EXCEPT if reviewing or evaluating
failure to do so is due to force majeure or caso the evidence.
fortuito.

If a motion to dismiss an appeal has been

filed, it suspends the running of the period for
filing the appellant‘s brief, as the same would
be unnecessary should the motion be granted.

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QUESTION OF LAW QUESTION OF FACT
Can involve questions Query invites the
of interpretation of the calibration of the whole
law with respect to evidence considering
certain set of facts. mainly the credibility of
witnesses, existence and
relevancy of specific
surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation.
Appellant‟s reply brief
 Filing is optional.
 Filed to answer point in the appellee‘s
brief not covered in the appellant‘s brief.
 Filed within twenty (20) days from receipt
of appellee‘s brief.
BRIEF MEMORANDUM
Ordinary appeals Certiorari, prohibition,
mandamus, quo warranto
and habeas corpus cases.
Filed within 45 days Within 30 days
Contents specified by Shorter, briefer, only one
Rules. issue involved – no
subject index or
assignment of errors; just
facts and law applicable.
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
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 thereof may
be a ground for dismissal of the appeal.
Effect of a Misdirected Appeal
 It will result to the outright dismissal of
the appeal in accordance in the Revised
Rules on Civil Procedure.
 It produces no effect, because such
dismissal is based on the fact that the
2018
REMEDIAL LAW
PURPLE NOTES
court did not have jurisdiction over the
said appeal.
Appeal by Certiorari to the Supreme
Court
When the appeal raises pure questions of law,
the appeal should be addressed to the
Supreme Court.
A question of law arises when the doubt or
difference arises as to what the law is on a
certain set of facts.
A case, which does not raise purely question
of law, does not merit attention of the
Supreme Court. Questions of fact are not
proper subjects of this kind of appeal.
Note: In a Rule 45 appeal from a decision in a
petition for writ of Amparo or habeas data,
questions of fact may be raised.
 Judgment, final order or resolution of CTA
is now appealable under Rule 45
Petition may include an application for a
writ of preliminary injunction or other
provisional remedies.
The petitioner may seek the same
provisional remedies by verified motion
filed in the same action or proceeding or
any time during its pendency. (Sec. 1 Rule
45 as amended by A.M. No. 07-7-12-SC, 27
Dec. 2007)
Test for Questions of Law: If the appellate
court can determine the issue raised without
receiving or evaluating the evidence.
Conclusiveness of Facts:
General Rule: The findings of fact of the CA
are final and conclusive and cannot be
reviewed on appeal to the SC.
Exceptions:
 When the finding is grounded entirely on
speculations, surmises or conjectures;
 When inference made is manifestly
absurd, mistaken or impossible;
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ARELLANO UNIVERSITY SCHOOL OF LAW
 When the judgment is premised on a RULE 45 vs RULE 65 vs RULE 64
misrepresentation of facts;
 When there is grave abuse of discretion in Review on
Certiorari Certiorari
the appreciation of facts; Certiorari
Under Rule Under Rule
 When the findings of fact are conflicting; Under
65 64
 When the CA in making its finding went Rule 45
Petition is Petition raises Petition prays
beyond the issue of the case and the
based on the issue as to for annulment
same is contrary to both the admissions of questions of whether the or modification
appellants and appellees; law. lower court of the
 When the findings of fact of the CA are at acted without questioned
variance with those of the trial court, the jurisdiction or judgment, final
SC has to review the evidence in order to with grave order or
arrive at the correct findings based on the abuse of resolution.
record; discretion. (Finding of
 When the findings of fact are conclusions facts supported
by substantial
without citation of specific evidence on
evidence final
which they are based; and renewable)
 When the facts set forth in the petition as A mode of Special civil Special civil
well as in the petitioner‘s main and reply appeal. action. action.
briefs are not disputed by the Involves the Directed Involves the
respondents; review of the against an review of
 The findings of fact of the CA is premised judgment interlocutory judgment, and
on the supposed evidence on record; award or final order of the final orders or
 When certain material facts and order on the court or where resolution of
circumstances have been overlooked by merits. there is no the Commission
appeal or any on Elections
the trial court which, if taken into account,
other plain, and the
would alter the result of the case in that speedy or Commission on
they would entitle the accused to adequate Audit
acquittal. remedy.
Must be made Filed not later Filed within 30
Grounds for Denial of Petition by the within the than 60 days days from
Supreme Court on its own initiative: reglementary from notice of notice of
 The appeal is without merit period. judgment, judgment,
 If prosecuted manifestly for delay order or order or
 The questions raised therein are too resolution. resolution.
Stays the Unless a writ Unless the
unsubstantial to require consideration
judgment or of preliminary Supreme Court
(Sec. 5, Rule 45, Rules of Court)
order appealed injunction or shall direct
from. temporary otherwise upon
Remedies if aggrieved by the judgment restraining such terms as it
of the trial court: order is issued may deem just,
 Motion for reconsideration. does not stay does NOT stay
 Motion for new trial. the challenged execution of
 Appeal. proceeding. judgment, final
 Petition for relief from judgment. order or
 Petition for annulment of judgment. resolution.
The court is in Court exercises Court exercises
the exercise of original original
Remedies if aggrieved by decision of the its appellate jurisdiction. jurisdiction.
CA: jurisdiction and
 Motion for reconsideration. power of
 Motion for new trial (on newly discovered review.
evidence). The petitioner The parties are The parties are
 Petition for review on certiorari under Rule and the the aggrieved the aggrieved
45. respondent are party against party against
the original the lower court the Commission
parties to the or quasi- concerned and
action, and the judicial agency person or

132 CENTER FOR LEGAL EDUCATION AND RESEARCH

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REMEDIAL LAW
PURPLE NOTES

Review on
Certiorari Certiorari
when there are special and important reasons
Certiorari therefor.
Under Rule Under Rule
Under
65 64
Rule 45 The following, while neither controlling nor
lower court or and the persons
fully measuring the court‘s discretion, indicate
quasi-judicial prevailing interested in
agency is not parties. sustain the
the character of the reasons which will be
impleaded. judgment, final considered:
order or
resolution.  When the court a quo has decided a
Motion for Motion for Motion for question of substance, not theretofore
reconsideration reconsideration reconsideration determined by the Supreme Court, or has
is not required. or for new trial or for new trial, decided it in a way probably not in accord
is required. if allowed under with law or with the applicable decisions
If a motion for the procedural of the Supreme Court; or
reconsideration rules of the
or new trial is Commission
filed, the concerned,  When the court a quo has so far departed
period shall shall interrupt from the accepted and usual course of
not only be the period judicial proceedings, or so far sanctioned
interrupted but fixed. such departure by a lower court, as to call
another 60 for an exercise of the power of
days shall be supervision.
given to the
petitioner (SC
Admin. Matter
002-03)

REVIEW DISCRETIONARY (Sec. 6, Rule 45)

A review is not a matter of right, but of sound

judicial discretion, and will be granted only
APPEAL BY
ORDINARY APPEAL PETITION FOR REVIEW
CERTIORARI
By notice of appeal or By filing a petition for By filing a petition for
How
record on appeal. review. review on certiorari.
From the MTC and MCTC to
the RTC, and from the RTC
to the CA in decisions of
the RTC rendered in the
exercise of their respective From the RTC to the SC
original jurisdictions From the RTC to the CA, a on a pure question of
decision of the RTC law, a decision of the
Where to appeal
From the MTC and MCTC to rendered in the exercise of RTC rendered in the
the CA for decisions its appellate jurisdiction. exercise of its original
rendered by the said courts jurisdiction.
in the exercise of their
delegated jurisdiction, in
which case the MTC and
MCTC acts as RTC.
Matter of appellate court‘s Matter of appellate
Nature of appeal Matter of right
discretion. court‘s discretion.
To whom appellate
Clerk of Court whose
docket and other Clerk of Court of the CA Clerk of Court of the SC
decision is being appealed.
lawful fees is paid

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ARELLANO UNIVERSITY SCHOOL OF LAW
APPEAL BY
ORDINARY APPEAL PETITION FOR REVIEW
CERTIORARI
Requirement for
Not a requisite for
Payment of appellate perfection of appeal to
perfection of appeal but a Requirement for perfection
docket and other be paid to the Clerk of
ground for dismissal if not of appeal.
lawful fees Court of the appellate
paid on time.
court.
Petitioner – party Petitioner – party
Appellant – party appealing appealing appealing
Name of parties
Appellee – adverse party Respondent – adverse Respondent – adverse
party party.
In special proceedings and
Requirement of record
other cases of multiple or Not required Not required
on appeal
separate appeals
From the MTC and MCTC to
Basic document to be the RTC, Memo
Memoranda, when Memo, when required by
filed in the appellate
required by the CA. the SC.
court From the RTC to the CA,
Briefs.
Upon timely filing of a Upon timely filing of the
If filing of the notice of
petition for review and petition for review on
Perfection of appeal as appeal is required, upon
payment of corresponding certiorari and payment of
to appellant approval of the record on
docket and other lawful docket and other lawful
appeal in due time.
fees. fees.
In appeal by notice of
appeal – upon perfection of
the appeal filed in due time
and the expiration of its
time to appeal of the other
When court whose Upon the perfection of the Upon the perfection of
parties.
decision is being appeal filed in due time to the appeal filed in due
appealed loses appeal by the other time to appeal by the
In appeal by record on
jurisdiction parties. other parties.
appeal – upon approval of
the records on appeal filed
in due time and the
expiration of its time to
appeal of the other parties.
Question of fact, question Question of fact, question
As to questions which
of law and question of fact of law, question of fact Only question of law.
may be raised
and law. and law.

3.R.2.L. Appeal from Judgments or Final Appeals from the court of tax appeals
Orders of the CA and quasi-judicial agencies to the court
of appeals
Dual Functions of CA
 Appeals from judgments and final orders
1. Original Jurisdiction (governed by of quasi-judicial bodies/agencies are now
Rule 46); original cases filed before the required to be brought to the Court of
CA: certiorari, prohibition, mandamus, Appeals under the requirements and
quo warranto conditions set forth in Rule 43. This rule is
2. Appellate Jurisdiction (governed by adopted precisely to provide a uniform
Rule 44) rule of appellate procedure from quasi-
judicial bodies (Carpio vs. Sulu Resource Dev.
Corp, 387 SCRA 128).
Appeals from the NLRC – Judgments of the
NLRC are to be brought first to the CA by way

134 CENTER FOR LEGAL EDUCATION AND RESEARCH


of petition for certiorari under Rule 65 wihtin
60 days from notice of decision not under Rule
43 of the Rules of Court (St. Martin Funeral
Homes vs. NLRC, 295 SCRA 494)
Decisions and final orders of the
Sandiganbayan
 Shall be appealable to the Supreme Court
by way of petition for review on certiorari
under Rule 45 raising pure questions of
law (People vs Espinosa, G.R Nos. 153714-20,
Aug.15, 2003).
Note: In Rule 40 (Appeal from the MTC to the
RTC), 41 (Appeal from the RTC), and 42
(Petition for Review from the RTC to the CA),
the judgment is stayed, unlike in Rule 43
(Appeals from Quasi-judicial Agencies to the
C.A.); parties must apply for restraining order
and preliminary injunction to stay judgment.
Mode of Appeal – Petition for Review
Cases Not Covered – Judgments or final
orders issued under the Labor Code.
Period of Appeal – Within 15 days from
notice of decision. The C.A. may grant an
additional period of 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
15 days.
Effect of failure to comply with
requirements
The failure of the petitioner to comply with
any of the 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.
Issues of pure questions of law may be raised;
however, CA has the discretion whether or not
to entertain the same.
2018
REMEDIAL LAW
PURPLE NOTES
From the decision of the CA, the
aggrieved party may:
a) Appeal by Certiorari under Rule 45;
b) File Motion for New Trial.
Under Rule 37, Motion for New Trial may be
filed only when the trial court has rendered a
decision already, but in the CA, even if no
decision has yet been rendered, Motion for
New Trial may be filed based on newly
discovered evidence.
This Rule as well as Rule 42 constitutes the
exceptions to the general rule that appeals on
pure questions of law are brought to the SC.
3.R.2.M. Appeal from Judgments or Final
Orders of COA
3.R.2.N. Appeal from Judgments or Final
Orders of COMELEC
A party aggrieved by the judgment, final order
or resolution of the Commission on Elections
or Commission on Audit may file a petition for
certiorari under Rule 65 with the Supreme
Court (Sec. 2, Rule 64, Rules of Court).
The mode of review under Rule 64 is starkly
different from the mode applicable to the
judgment, final order or resolution of another
constitutional body, the Civil Service
Commission. The judgment of the Civil Service
Commission cannot be assailed by a petition
for certiorari to the Supreme Court but by
appeal. This appeal shall be taken by filing a
verified petition for review to the Court of
Appeals (R.A. 7902) in accordance with Rule 43
of the Rules of Court.
Time for filing of petition:
30 DAYS (special period of 30 days as
opposed to 60 days provided in Rule 65) from
notice of judgment or final order or resolution
sought to be reviewed.
If a motion for reconsideration was filed and is
subsequently denied, petition must be filed
within the remaining period but not less than
5 days in any event reckoned from notice of
denial.
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Mode of review: Rule 64 Rule 65

As an independent civil action under Rule 65, Time 30 days 60 days
to be filed exclusively with the SC. Frame
Reckonin From notice From receipt of
Filing of petition for certiorari does not stay g Period of judgment. denial of Motion for
execution of judgment or final order or Reconsideration.
resolution sought to be reviewed unless the Power of Not under Under concurrent
the court concurrent jurisdiction.
petitioner files for TRO and Preliminary
to hear jurisdiction
Injunction.
because
―exclusive
Application of rule 64 and 65 original‖.

 Sec. 7, Art. IX-A of the Constitution reads, 3.R.2.O. Review of Final Judgments or
―unless otherwise provided by the Final Orders of The CSC
Constitution or by law, any decision, order
or ruling of each commission may be The judgment of the Civil Service Commission
brought to the Supreme Court on cannot be assailed by a petition for certiorari
certiorari by the aggrieved party within 30 to the Supreme Court but by appeal. This
days from receipt of a copy thereof.‖ The appeal shall be taken by filing a verified
provision was interpreted by the Supreme petition for review to the Court of Appeals
Court to refer to certiorari under Rule 65 (R.A. 7902) in accordance with Rule 43 of the
and not appeal by certiorari under Rule 45 Rules of Court.
(Aratuc vs. COMELEC, 88 SCRA 251; Dario vs.
Mison, 176 SCRA 84). To implement the All final judgments, decisions, resolutions,
above constitutional provision, the SC orders or awards of the Civil Service
promulgated Rule 64. Commission are appealable to the Court of
Distinction in the application of Rule 65 Appeals.
to judgments of the COMELEC and COA
and the application of Rule 65 to other 3.R.2.P. 3.R.2.O. Review of Final
tribunals, persons and officers Judgments or Final Orders of The
Ombudsman
RULE 64 RULE 65
Directed only to the Directed to any
In administrative disciplinary cases - should be
judgments, final orders or tribunal, board or
resolutions of the officers exercising taken to the CA under Rule 43.
COMELEC and COA; judicial or quasi-
judicial functions; In criminal or non-administrative cases -
Filed within 30 days from Filed within 60 days Elevated to the SC by way of Rule 65
notice of the judgment; from notice of the (Enemecio vs. Office of the Ombudsman, 419 SCRA
judgment; 82).
The filing of a motion for The period within
reconsideration or a which to file the 3.R.2.Q. Review of Final Judgments or
motion for new trial, if petition, if the motion Final Orders of Quasi-Judicial Agencies
allowed, interrupts the for reconsideration or
period for the filing of the new trial is denied, is Agencies Included under Rule 43
petition for certiorari. If 60 days from notice
the motion is denied, the of the denial of the
aggrieved party may file motion. 1. Civil Service Commission;
the petition within the 2. Central Board of Assessment Appeals;
remaining period, but 3. Securities and Exchange Commission;
which shall not be less 4. Office of the President;
than 5 days reckoned 5. Land Registration Authority;
from the notice of denial. 6. Social Security Commission;
7. Civil Aeronautics Board;
Periods of Rule 45 and 65

136 CENTER FOR LEGAL EDUCATION AND RESEARCH


8. Bureau of Patents, Trademarks and
Technology Transfer;
9. National Electrification Administration;
10. Energy Regulatory Board;
11. National Telecommunications
Commission;
12. Department of Agrarian Reform under
R.A. 6657;
13. GSIS;
14. Employee Compensation Commission;
15. Agricultural Inventions Board;
16. Insurance Commission;
17. Philippine Atomic Energy Commission;
18. Board of Investments;
19. Construction Industry Arbitration
Commission; and
20. Voluntary Arbitrators authorized by law
(Sec. 1 Rule 43).
 Appeals from judgments and final orders
of quasi-judicial bodies/agencies are now
required to be brought to the CA under
the requirements and conditions set forth
in Rule 43. This rule was adopted
precisely to provide a uniform rule of
appellate procedure from quasi-judicial
bodies (Carpio vs. Sulu Resource Devt. Corp.,
387 SCRA 128).
The appeal shall not stay the award,
judgment, final order or resolution sought to
be reviewed unless the CA shall direct
otherwise upon such terms as it may deem
just (Sec.12, Rule 43, Rules of Court)
The appeal under Rule 43 may raise issues
involving questions of fact, of law or mixed
questions of fact and law
3.R.2.R. Dismissal, Reinstatement and
Withdrawal of Appeal
Dismissal of Appeal
Grounds for dismissal of appeal
1. Failure of the record on appeal to show on
its face that the appeal was taken within
the period fixed by these Rules;
2. Failure to file the notice of appeal or the
record on appeal within the period
prescribed by these Rules;
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3. Failure of the appellant to pay the docket
and other lawful fees as provided in
section 5, Rule 40 and section 4 of Rule
41; (Bar Matter No. 803, 17 February
1998)
4. Unauthorized alterations, omissions or
additions in the approved record on
appeal as provided in section 4 of Rule 44;
5. Failure of the appellant to serve and file
the required number of copies of his brief
or memorandum within the time provided
by these Rules;
6. Absence of specific assignment of errors in
the appellant's brief, or of page references
to the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or
to comply with orders, circulars, or
directives of the court without justifiable
cause; and
9. The fact that the order or judgment
appealed from is not appealable. (1a)
An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals
raising only questions of law shall be
dismissed, issues purely of law not being
reviewable by said court.
An appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed. (n)
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)
Withdrawal of appeal
An appeal may be withdrawn as of right at
any time before the filing of the appellee's
brief. Thereafter, the withdrawal may be
allowed in the discretion of the court. (4a)
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3.R.2.S. Dual Function of Appellate
Courts
An appellate court serves a dual function.
1. Correctness function - The case is
reviewed on appeal to assure that
substantial justice has been done. It is
concerned with the justice of the
particular case.
2. Institutional function - the progressive
development of the law for general
application in the judicial system. It is
concerned with the articulation and
application of constitutional principles,
the authoritative interpretation of
statutes, and the formulation of policy
within the proper sphere of the judicial
function.
The duality also relates to the dual function of
all adjudication in the common law system.
1. Doctrine of res judicata, which decides
the case and settles the controversy;
2. Doctrine of stare decisis, which
pertains to the precedential value of
the case which assists in deciding
future similar cases by the application
of the rule or principle derived from
the earlier case.
With each level of the appellate structure, the
review for correctness function diminishes and
the institutional function, which concerns itself
with uniformity of judicial administration and
the progressive development of the law,
increases. (Re: Letter Complaint of Merlita B.
Fabiana Against Presiding Justice Andres B. Reyes,
Jr., et al. 700 SCRA 348 , July 02, 2013)
3.R.2.T. Harmless Error Rule in Appellate
Decisions
No error in either the admission or the
exclusion of evidence and no error or defect in
any ruling or order or in anything done or
omitted by the trial court or by any of the
parties is ground for granting a new trial or for
setting aside, modifying, or otherwise
disturbing a judgment or order, unless refusal
to take such action appears to the court
inconsistent with substantial justice. The court
at every stage of the proceeding must
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disregard any error or defect which does not
affect the substantial rights of the parties.
(Rule 51, Sec. 6)
We have likewise followed the harmless error
rule in our jurisdiction. In dealing with
evidence improperly admitted in trial, we
examine its damaging quality and its impact to
the substantive rights of the litigant. If the
impact is slight and insignificant, we disregard
the error as it will not overcome the weight of
the properly admitted evidence against the
prejudiced party. (People vs. Tehankee 249
SCRA 54)
3.R.2.U. Reliefs from Judgments or Final
Orders and Resolutions.
Petition for Relief from Judgments is a remedy
whereby a party seeks to set aside a judgment
or final order rendered against him by a court
whenever he was unjustly deprived of a
hearing or was prevented from taking an
appeal because of fraud, accident, mistake or
excusable neglect and there no other
remedies in law exists (Vitug vs Sps. Morales,
G.R. No. 199283, June 9, 2014).
The remedy of petition for relief from
judgment is available only when the judgment
or order in question is already final and
executory.
3.R.2.U.1. Grounds
1. When a judgment or final order is
entered, or any other proceeding is
thereafter taken against a party in any
court through fraud, accident, mistake, or
excusable negligence
2. 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
3.R.2.U.2. Time to file Action
Petition - Filed 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
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or final order was entered, or such proceeding RULE 37 RULE 38

was taken. evidence
When availed of: When availed of:
Answer to the Petition - Filed within fifteen within the time to within 60 days from
(15) days from the receipt thereof. appeal. knowledge of the
judgment; and
within 6 months from
3.R.2.U.3. Contents of Petition entry of judgment.
If denied, the Order If denied, the order
Petition based on the first ground – petition of Denial is not denying the petition for
shall pray that the judgment, order or appealable hence, relief is not appealable;
proceeding be set aside remedy is appeal the remedy is appropriate
from the judgment. civil action under Rule 65.
Petition based on the second ground – petition Legal Remedy. Equitable Remedy.
shall pray that that the appeal be given due Motion needs to be Petition must be verified.
course. verified.

The petition must be verified and 3.R.3. Annulment of Judgments or Final

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.
Two hearings under Rule 38:
 A hearing to determine whether the
judgment, order or proceeding should be
set aside; and
 If yes, a hearing on the merits of the
case.
Note: Failure to file an answer to the petition
for relief does not constitute default since
even without such answer, the court will still
have to hear the petition and determine its
merits.
Rule 37 Distinguished from Rule 38
Orders and Resolutions
Annulment of judgment
A remedy in law independent of the case
where the judgment sought to be annulled
was rendered and may be availed of though
the judgment has been executed.
Important Conditions:
The petitioner failed to move for new trial in,
or appeal from, or file a petition for relief
against, or take other appropriate remedies
assailing the questioned judgment or final
order or resolution through no fault
attributable to him.
If he failed to avail of those other remedies
without sufficient justification, he cannot
resort to annulment provided in this Rule,
otherwise he would benefit from his own or
negligence.

RULE 37 RULE 38 3.R.3.1. Grounds for annulment of

Available before Available after judgment judgment
judgment becomes has become final and
final and executory. executory.  Extrinsic Fraud;
Applies to judgments Applies to judgments, final  Lack of jurisdiction over the subject
or final orders only. orders and other
matter and over the person (Sec. 2, Rule
proceedings:
47)
Land Registration
Special Proceedings
 Denial of due process (Alaban vs. CA, G.R.
Order of Execution No. 156021, Sept. 23, 2005)
Grounds: Grounds: FAME
FAME
Newly-discovered

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Reminders: filing discovery barred by

action laches or
 Such must be extrinsic and committed by estoppel
the adverse party, not by plaintiff‘s own Effect of (1) Trial court will Questioned
judgment try the case as if jusgement or
counsel who misled said plaintiff.
motion for new trial order shall be
 The C.A. has exclusive original jurisdiction was granted set aside and
in actions to annul judgments of the RTC, (2) prescriptive rendered
while the RTC has jurisdiction to annul period shall not be void.
judgments of inferior courts in the region. suspended if the
 Actions to annul judgments are not extrinsic fraud is
necessarily limited to those principally or attributable to the
secondarily bound there under. Any plaintiff in the
person adversely affected thereby can original action
enjoin its enforcement.
Where to file:
Extrinsic or Collateral Fraud - any
fraudulent act of the prevailing party in the a. Judgment of MTC – file with the RTC
litigation which is committed outside of the b. Judgment of RTC – file with the CA
trial of the case, whereby the defeated party  If the petition is filed in the CA, it can
was prevented from exhibiting fully and fairly dismiss the petition outright because the
presenting his side of the case. same is a matter of discretion on the part
of the said court.
 A final and executory judgment may still  If the petition is filed in the RTC, it cannot
be set aside if, upon mere inspection dismiss the petition outright because the
thereof, its patent nullity can be shown for action to annul the judgment of the MTC
having been issued without jurisdiction or in the RTC is a matter of right.
for lack of due process of law. Annulment  Rule 47 refers to the annulment of
of judgment under Rule 47; an exception decision of RTC and/or MTC, and not of
to the final judgment rule. (Diona vs. the CA.
Balangue, G.R. No. 173559, January 7, 2013)
Annulment of judgment is a recourse WHO MAY FILE:
equitable in character, allowed only in
exceptional cases as where there is no General Rule: Only parties may file for
available or other adequate remedy. annulment of judgment.
Jurisprudence and Section 2, Rule 47 of
the Rules of Court lay down the grounds Exception: Even a stranger may seek the
upon which an action for annulment of annulment of the judgment, provided that his
judgment may be brought, i.e., (1) property rights are adversely affected over a
extrinsic fraud, and (2) lack of jurisdiction certain piece of land involved.
or denial of due process. Lack of
jurisdiction refers to either lack of  From SC to CA, cases on issues of
jurisdiction over the person of the question of law may be transferred.
defending party or over the subject matter  From CA to SC, however, the same cannot
of the claim, and in either case, the be made. The CA must resolve the case
judgment or final order and resolution are by dismissing the same.
void. (National Housing Authority vs.  CA can only resolve purely question of law
Evangelista, G.R. No. 140945, May 16, 2005) if RTC acted as an appellate court, not as
a trial court.
3.R.3.2 . Period to file action
Two stages of this proceeding:
EXTRINSIC LACK OF
FRAUD JURISDICTI  A preliminary evaluation of the petition to
ON
determine prima facie merit therein,
Period for 4 years from Before it is

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 The issuance of summons as in ordinary
civil cases and such appropriate
proceedings thereafter as contemplated in
Section 6, Rule 14.
 For the court to acquire jurisdiction over
the respondent, the rule requires the
issuance of summons should prima facie
merit be found in the petition and the
same is given due course.
A petition for relief from judgment must
be filed within (a) 60 days from
knowledge of judgment, order or other
proceedings to be set aside and (b) 6
months from entry of such judgment,
order or other proceeding. These two
periods must concur. Both periods are not
extendible and are never interrupted.
3.R.3.3. Effects of a judgment of
annulment
1. 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.
The prescriptive period for the refilling of
the original action shall be deemed
suspended from the filing of such original
action until the finality if the judgment of
annulment.
2. Where the judgment or final order is set
aside and annulled on the ground of
extrinsic fraud, the court, upon motion,
may order the trial court to try the case as
if a motion for new trial was granted. (Sec.
7, Rule 47)
The prescriptive period shall not be
suspended where the extrinsic fraud is
attributable to the plaintiff in the original
action. (Sec. 8, Rule 47)
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3. The judgment of annulment may include
the award of damages, attorney‘s fees
and other relied (Sec. 9, Rule 47)
3.R.3.4. Collateral attack of Judgments
Direct Attack - when the object of an action is
to annul or set aside such proceeding, or
enjoin its enforcement.
Indirect or Collateral Attack - When, in an
action to obtain a different relief, an attack on
the proceeding is nevertheless made as an
incident thereof (Firaza vs. Sps. Ugay, G.R.No.
165838, April 3, 2013).
3.S. EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS (RULE 39)
Execution is the remedy provided for by law
for the enforcement of a final judgment.
Against whom is execution issued
Execution can only be issued against a party
and not against one who has not had his day
in court.
Final Judgment or Order – one that
disposes of the whole subject matter or
terminates the particular proceedings or
action, leaving nothing to be done by the
court but to enforce by execution what has
been determined.
3.S.1 Difference Between Finality of
Judgment For Purposes of Appeal; for
purposes of execution
The term ―final‖ when used to describe a
judgment may be used in two senses.
1. Finality of Judgment for Purposes of
Appeal - Judgment that disposes of a case
in a manner that leaves nothing more to
be done by the court in respect thereto.
As distinguished from an interlocutory
order which does not finally terminate or
dispose of the case (Rudecon Management
Corp. vs. Singson, 4554 SCRA 612).
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2. Finality of Judgment for Purposes of

Execution - Judgment that is no longer Exceptions:
appealable and is already capable of being
executed because the period for appeal a. Orders granting support even if the main
has elapsed without a party having case is still pending.
perfected an appeal or if there has been b. Orders in injunctions.
appeal, it has already been resolved by a c. Orders in receivership; and
highest possible tribunal. d. Orders in accounting cases.

For Purposes of For Purposes of 3.S.2 When execution shall issue

Appeal Execution
Final judgments are After lapse of period 1. Execution as a matter of right
appealable. to appeal and no 2. Discretionary execution
Interlocutory orders appeal was perfected,
are not appealable. no further action can
be had.
3.S.2.A. Execution as a Matter of Right
Execution of Final Execution is a matter
judgment in this of right. Execution is a matter of right upon the
sense may not be a expiration of the period to appeal and no
matter of right as appeal was perfected from a judgment or
when the period to order that disposes of the action or
file an appeal has not proceeding. (Sec., 1, Rule 39)
lapsed.
To determine whether To determine whether Issuance of a writ of execution becomes
a judgment is final or judgment is final, the
ministerial duty of the court. (Riano, Civil
interlocutory, the test test is whether the
Procedure, Volume 1, p. 642)
is whether the lapse of the
judgment or order reglementary period
leaves nothing more to appeal has lapsed General Rule: The trial court that tried the
for the court to do and no appeal has case will execute the executory judgment.
with respect to the been perfected.
merits of the case. Exception: Execution pending appeal
3.S.2.B. Discretionary Execution
Amendment of a Final and Executory
Judgment 1. Execution pending appeal;
2. While trial court has jurisdiction over the
Generally, not allowed, except when case and is in possession of either the
amendment is: original record or record on appeal;
3. When trial court has lost jurisdiction but
1. To make corrections of clerical errors, has not transmitted records of the case to
mistakes or omissions (amendments nunc the appellate court; and
pro tunc). 4. When trial court has lost jurisdiction and
2. To clarify an ambiguity which is borne out has transmitted records
by and justifiable in the context of the 5. Execution of several, separate or partial
decision, especially if the parties judgment (Florendo v. PIC, G.R. No. 167976,
acquiesced thereto; and January 20, 2010)
3. In judgments for support, which can
always be amended from time to time, in Requisites of Execution Pending Appeal
the light of the circumstances of the
parties. 1. Motion by prevailing party with notice to
the adverse party;
Relevance of finality of a judgment or 2. Hearing
order 3. Good reasons to justify the discretionary
execution;
General Rule: Only judgments and orders 4. Good reasons must be stated in the special
which are final may be executed. order.

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after revival thereof through an action to

Where to File an Application For revive judgment.
Discretionary Execution
3.S.3.A. Execution by Motion or by
Lower Court Appellate Court Independent Action
While it has jurisdiction After the trial court has
over the case lost jurisdiction A Within 5 No revival of Executed
While it is in possession years from judgment by motion.
of either the original
date of needed.
record or the record on
appeal
entry of
judgment
Where the judgment subject to discretionary B After 5 Revival of Once
execution is reversed or annulled , the trial years but judgment by revived,
court may, on motion, issue such orders of before 10 means of execution
restitution or reparation of damages as equity years from independent may be by
and justice may warrant under the the date of action / motion
circumstances entry of petition since the
judgment The right to revival is
Stay of Discretionary Execution execution is in nature
reduced to a of a new
Discretionary execution may be stayed upon right of judgment
approval by the proper court of a sufficient action which separate
supersedeas bond filed by the party against may be and
whom it is directed, conditioned upon the proceeded in distinct
performance of the judgment or order allowed separate from the
to be executed in case it shall finally be action. original
sustained in whole or in part. (Sec. 3, Rule 39) judgment.
(See Row
Supersedeas Bond is a bond filed by a A).
petitioner which guarantees satisfaction of the
judgment in case it is affirmed on appeal. It Action to revive judgment may be filed twice.
must be approved by the court before the If after the second revival and the judgment
judgment becomes final and executory. has not been executed by motion, the same
will be barred and no further action for revival
Judgments not stayed by appeal: of judgment can be filed.
(Sec. 4, Rule 39)
Revival of judgment
1. Injunction.
2. Receivership. From the date of entry of judgment, no
3. Accounting. motion was filed for the execution of said
4. Support judgment, thus the need for its enforcement
5. Such other judgments declared to be by independent action.
immediately executory unless otherwise
ordered by the trial court. An action to enforce a judgment prescribes in
10 years from the finality of the judgment.
3.S.3. How Judgment is Executed
3.S.3.B. Issuance and Contents of a Writ
 By motion within 5 years from date of the of Execution
entry; or
 By independent action after 5 years from Writ of execution is the judicial writ issued
entry the judgment may be executed only to an officer authorizing him to execute the
judgment of the court.

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Issuance of the Writ
The writ of execution is issued in the name of
the Republic of the Philippines
The writ is enforceable within 5 years from the
entry of judgment.
Contents of the Writ
The writ shall state:
1. The name of the court which granted the
motion.
2. The case number and title.
3. The dispositive portion of the judgment or
order subject of the execution; and
4. Shall require the sheriff or other proper officer
to whom it is directed to enforce the writ
according to its terms (Sec., 8, Rule 39; Riano,
Civil Procedure Volume 1, p. 645)
Essential Requisites for a Writ of
Execution
It must conform strictly to the decision or
judgment which gave life to it. It cannot vary
the terms of the judgment it seeks to enforce.
It is the ministerial duty of the court to issue a
writ of execution.
General Rule: Where the judgment or order
has become executory, the court cannot
refuse to issue a writ of execution.
Exceptions:
a. When the subsequent facts and
circumstances transpire which render such
execution unjust or impossible;
b. On equitable grounds;
c. Where the judgment has been novated by
the parties;
d. When a petition for relief or an action to
enjoin the judgment is filed and a
preliminary injunction is prayed for and
granted;
e. Where the judgment has become
dormant, the 5-year period having expired
without the judgment having been
revived; or
f. Where the judgment turns out to be
incomplete or is conditional since, as a
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matter of law, such judgments cannot
become final.
A motion for execution must be:
1. In writing
2. With hearing
3. With notice
Note: Non-compliance makes the motion pro
forma
Execution of several judgments
This motion is availed of when the winning
party seeks a judgment against one or more
of several defendants. The court may grant
execution with respect to said defendant or
defendants.
Execution of Separate or Partial
judgments
This motion may be sought in court at any
stage of an action to dispose of a particular
claim, while the action is being heard of with
regard to the other claims that have not been
settled yet or are still awaiting resolution.
Order of Execution
General Rule: We have ruled that an order
of execution of a final and executory
judgment, as in this case, is not appealable,
otherwise, there would be no end to litigation.
(D‘ Armoured Security and Investigation Agency,
Inc. Vs. Orpia, G.R. No. 151325. June 27, 2005)
Exceptions:
When the terms of the judgment are not very
clear; or
When the order of execution varies with the
tenor of the judgment
Execution in case of death of party (Sec.
7, Rule 39)
If the obligor dies after the entry but before
levy on his property, execution will be issued
for recovery of real or personal property or
enforcement of lien thereon.
If he dies after levy has been made, execution
sale proceeds.

For a sum of money, judgment cannot be
enforced by writ but as a claim against the
estate in probate proceedings.
Quashal of a writ of execution
Grounds:
 Improvidently issued.
 Defective in substance.
 Issued against the wrong party.
 Judgment was already satisfied.
 Issued without authority.
 There is a change in the situation of the
parties which renders execution
inequitable.
 Controversy was never validly submitted
to the court.
 Writ of execution varies the terms of the
judgment.
 Sought to be enforced against property
exempt from execution; and
 There is ambiguity in the terms of the
judgment.
 Remedy from orders granting or denying
the issuance of a writ of execution: Appeal
 Remedy when there is delay in obtaining a
writ of execution of a judgment already
affirmed on appeal. The prevailing party
may:
1. Apply for execution.
2. Secure certified true copies of the
judgment of the appellate court and
the entry thereof.
3. Submit the same to the court of
origin.
4. Justify a motion for writ of execution
on motion of the records from the
appellate court.
Appeal of an order granting the issuance
of a writ of execution
Generally, not appealable, except:
Where the order varies the terms of the
judgment; or
Being vague, the court renders what is
believed to be a wrong interpretation of the
judgment.
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Return of writ of execution
The writ of execution must be returned to the
issuing court after partial or full satisfaction of
judgment. If the judgment cannot be satisfied
in full within 30 days after his receipt of the
writ, the officer shall report to the court and
state the reason and thereafter make periodic
reports until judgment is satisfied. The writ
continues to be effective during such period of
time that the judgment may be enforced by
motion -- 5 years. (Sec. 14, Rule 39)
 Within 30 days from receipt thereof and
every 30 days thereafter until the
judgment is fully satisfied, a sheriff is
required by the Rules of Court to render a
report on the action taken on a writ of
execution. X x x When a writ of execution
is placed in the hands of a sheriff, it is his
duty, in the absence of contrary
instructions, to have it implemented
forthwith. The sheriff is primarily
responsible for the speedy and efficient
service of all court processes and writs
originating from the court and its
branches, including such as may be
properly delegated to him by other courts.
(Fajardo vs. Quitalig, A.M. No.P-02-1535.
March 28, 2003)
 A decision that is left unexecuted or
delayed indefinitely because of the
sheriff‘s inefficiency or negligence remains
an empty victory on the part of the
prevailing party. X x x For this reason, any
inordinate delay in the execution of
judgment is truly deplorable and cannot
be countenanced by the Court. There is
no mistaking the mandatory character of
the period prescribed under Section 14 of
Rule 39 of the Revised Rules of Court on
the Return of a Writ of Execution. (Morta
vs. Bagagnan, Supra)
3.S.3.C. Execution of Judgments For
Money (Sec. 9, Rule 39)
It may be enforced by:
 Immediate payment on demand;
 Satisfaction by levy; or
 Garnishment of debts and credits
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In executing a judgment for money, the refers to corporeal refers to money,

sheriff shall demand from the judgment property in the stocks, credits and
obligor the full amount in cash or certified possession of the other incorporeal
check payable to the judgment debtor. judgment debtor property which are
not in possession of
If the judgment debtor has no cash or check, the judgment debtor.
the officer shall levy upon his properties but
the judgment debtor has the option to choose 3.S.3.D. Execution of judgment for
which property shall be levied upon. specific acts (Sec. 10, Rule 39)

If the option is not exercised, the officer shall Specific Acts are:
first levy on the personal properties and then  Conveyance, delivery of deeds, or other
other properties if the personal properties are specific acts vesting title.
not sufficient [(Sec 9 (b), Rule 39)].  Sale of real or personal property.
 Delivery or restitution of real property.
The officer may also levy upon bank deposits  Removal of improvements on property
of the debtor, royalties, commissions, or his subject of execution; and
credits and others not capable of manual  Delivery of personal property.
delivery by serving notice upon the person in
possession of the same. This is called Specific Acts Effect in case of Manner of
garnishment [(Sec.9 (c), Rule 39)]. refusal of Execution
judgment debtor
Conveyance May direct the Court can
Requisites of payment on demand: act to be done at appoint some
the cost of the other person at
1. Demand by the sheriff. disobedient the expense of
party. the disobedient
2. Payable to the judgment obligee. party and the act
3. Cash, check, or any payment acceptable done shall have
to the judgment obliges. the same effect
as if the required
party performed
If the judgment obligee or his authorized it.
representative is not present to receive Sale of Real or Sell such
payment, the judgment obligor shall deliver Personal propery property and
the aforesaid payment to the executing sheriff apply the
proceeds in
who shall turn over it on the same day to the
conformity with
clerk of court, or if the same is not practicable, the judgment
deposit said amount to a fiduciary account. delivery or officer shall If no demolition
restitution of real demand the is involved and
In no case shall the executing sheriff demand properties losing party to the party refuses
peaceably vacate to deliver, a writ
that any payment by check be made payable the property of execution
to him. within 3 working directing the
days, and restore sheriff to cause
Levy - Levy is the act by which an officer sets possession to the the defendant to
judgment oblige; vacate is in the
apart or appropriates a part of the whole of otherwise the nature of a
the property of the judgment debtor for officer shall oust habere facias
purposes of the execution sale. such disobedient possesionem and
party. authorizes the
sheriff to break
Garnishment - Garnishment is the act of open the
appropriation by the court when the property premises where
of the debtor is in the hands of third persons. there is no
occupant therein
(not contempt).
Garnishment vs Attachment
If demolition is
Attachment Garnishment involved, there
must be a special

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order. Remedies Available to a third-party
Removal of the officer shall Obligge must file Claimant in levy of real property
improvements not destroy, a motion and
demolish or upon special
remove order of the 1. Summary hearing before the court which
improvements court, the officer authorized the execution;
except upon may destroy, 2. Terceria or third party claim filed with the
special order of demolish or
the court. remove the sheriff;
improvements. 3. Action for damages on the bond posted
delivery of officer shall take The officer shall by judgment creditors; or
personal possession of the take possession 4. Independent reinvindicatory action. (Sec.
property same and and deliver to
16, Rule 39)
forthwith deliver the party entitled
it to the party thereto
entitled to satisfy The remedies are cumulative and may be
any judgment for availed independently of or separately from
money as therein
the others.
provided.

The officer shall not be liable for damages for

General Rule
the taking or keeping of the property, to any
third-party claimant if such bond is filed.
Refusal by the judgment debtor to comply
Nothing herein contained shall prevent such
with judgment of the court is not a ground to
claimant or any third person from vindicating
be cited in contempt of court.
his claim to the property in a separate action,
or prevent the judgment obligee from claiming
Exception
damages in the same or a separate action
against a third-party claimant who filed a
1. Refusal to perform a particular act or
frivolous or plainly spurious claim.
special judgments under Sec. 11
2. In case of the provisional remedy of
3.S.4. Properties exempt from
support pendente lite under Rule 61 even
execution (Sec. 13, Rule 39)
if the decision is not a special judgment
and requires the latter to pay money.
a) The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
3.S.3.E. Execution of Special Judgments
used in connection therewith.
b) Ordinary tools and implements personally
Special Judgment is one that can be complied
used by him in hs trade, employment, or
with only by the judgment obligor himself.
livelihood.
c) Three horses, or three cows, or three
When judgment requires the performance of
carabaos, or other beasts of burden such
any act other than for money and delivery of
as the judgment obligor may select
property, the writ of execution shall be served
necessarily used by him in his ordinary
upon the party required to obey the same and
occupation.
such party may be punished for contempt by
d) His necessary clothing and articles for
imprisonment, if he disobeys. (Sec. 11, Rule 39)
ordinary personal use, excluding jewelry.
e) Household furniture and utensils
3.S.3.F. Effect of Levy on Third Persons
necessary for housekeeping, and used for
that purpose by the judgment obligor and
Levy creates a lien in favor of the judgment
his family, such as the judgment obligor
obligee over the right, title and interest of the
may select, of a value not exceeding one
judgment obligor in such property at the time
hundred thousand pesos.
of the levy, subject to liens and encumbrances
f) Provisions for individual or family use
then existing
sufficient for four months.

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g) The professional libraries and equipment
of judges, lawyers, physicians,
pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding three
hundred thousand pesos in value.
h) One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood.
i) So much of the salaries, wages, or
earnings of the judgment obligor of his
personal services within the four months
preceding the levy as are necessary for
the support of his family;
j) Lettered gravestones.
k) Monies benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance.
l) The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the Government.
m) Properties specially exempt by law.
But no article or species of property
mentioned in his section shall be exempt
from executio issued upon a judgment
recovered for its price or upon a judgment
of foreclosure of a mortgage thereon.
 The above Rule clearly enumerates what
properties are exempt from execution. X x
x exemptions under this rule are confined
only to natural persons and not to juridical
entities such as petitioner. (D‘ Armoured
Security and Investigation Agency, Inc. vs.
Orpia, G.R. No. 151325. June 27, 2005)
3.S.5. Proceedings where property is
claimed by third persons
At any time, third party claim may be filed so
long as the sheriff has the possession of the
property levied upon, or before the property is
sold under execution provided:
1. The property is levied;
2. The claimant is a person other than the
judgment obligor or his agent;
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3. Makes an affidavit of his title thereto or
right to the possession thereof stating the
grounds of such right or title; and
4. Serves the same upon the officer making
the levy and the judgment oblige
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.
3.S.5.A. In Relation to Third Party Claim
in Attachment and Replevin
Certain remedies available to a third person
not party to the action but whose property is
the subject of execution:
Terceria – By making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title. The
affidavit must be served upon the sheriff and
the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
attachment except if the attaching party files a
bond approved by the court. the sheriff shall
not be liable for damages for the taking or
keeping of the property, if such bond shall be
filed.
Exclusion or release of property – Upon
application of the third person through a
motion to set aside the levy on attachment,
the court shall order a summary hearing for
the purpose of determining whether the
sheriff has acted rightly or wrongly in the
performance of his duties in the execution of
the writ of attachment. The court may order
the sheriff to release the property from the
erroneous levy and to return the same to the
third person. In resolving the application, the
court cannot pass upon the question of title to
the property with any character of finality but
only insofar as may be necessary to decide if
the sheriff has acted correctly or not (Ching vs.
CA, 423 SCRA 356).

Intervention – This is possible because no
judgment has yet been rendered and under
the rules, a motion for intervention may be
filed any time before the rendition of the
judgment by the trial court (Sec. 2, Rule 19).
Accion Reinvindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in
the same or in a separate action. He may file
a separate action to nullify the levy with
damages resulting from the unlawful levy and
seizure. This action may be a totally distinct
action from the former case.
Where the property is claimed by a third
person (Sec. 16, Rule 39)
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 indemnify the third-party
claimant in a sum not less than the value of
the property levied on.
The claim for damages against the bond must
be made within 120 days from the filing of the
bond; otherwise it is barred.
Remedies of a third party claimant
a) Summary hearing before the court which
authorized the execution;
b) A ―terceria‖ or third party claim filed with
the Sheriff;
c) An action for damages on the bond posted
by the judgment creditor;
d) An independent reinvindicatory action.
Notes:
These remedies are cumulative and may be
resorted to by the 3rd party claimant
independently from and without need of
availment of the others.
If the winning party files a bond, it is only
then that the Sheriff can take the property in
his possession.
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Sale of Property
Requisites:
1) At a public auction.
2) To the highest bidder.
3) Starting at the exact time fixed in the
notice.
4) In the province where the land is situated.
5) Only so much of the property that will
satisfy the judgment.
6) Excess to be delivered to the judgment
obligor, unless otherwise directed by the
court.
Persons disqualified to participate in the
sale:
 Officer conducting the sale and his
deputies.
 Judge who issued the writ of execution;
and
 Those prohibited by Article 1491 of the
Civil Code.
 Guardian, with regard to the property of
the ward
 Agents, as to properties entrusted to
them.
 Executors and Administrators, as to
properties of the estate.
 Public officers and employees who have
been entrusted with the administration of
the property of the State.
 Justices, judges, prosecutors, clerks of
courts and employees connected with the
administration of justice, when the
property is in litigation or levied upon an
execution before the court within whose
jurisdiction they exercise their function
including lawyers involved in the litigation;
and
 Others specially disqualified by law.
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.
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The court may order the refusing purchaser to debtor until the expiration of his period of
pay into the court the amount of such loss, redemption (Sec. 32, Rule 39)
with costs, and may punish him for contempt
if he disobeys the order. (Sec. 20, Rule 39) Judgment Obligor vs Redemptioner

Judgment Obligee as Purchaser Judgment Obligor Redemptioner

One against whom One who has a lien
When the purchaser is the judgment obligee, the judgment is by by virtue of an
he need not pay the amount of the bid if it executed. attachment
does not exceed the amount of his judgment. judgment, judgment,
If it does, he shall pay only the excess except or mortgage on the
when third-party claim has been filed. (Sec. 21, property sold,
Rule 39) SUBSEQUENT to the
lien under which the
In relation to third party claim in property was sold
attachment and replevin May redeem within 1 May redeem:
year from the date of Within 1 year from
Certain remedies available to a third person registration of the the date of
not party to the action but whose property is certificate of sale registration of the
the subject of execution: certificate of sale if he
is the first
3.S.6 Rules on redemption redemptioner, or

Redemption is inconsistent with the claim of Within 60 days from

invalidity of the sale. Redemption is an the last redemption, if
implied admission of the regularity of the sale he be a subsequent
and would estop the respondents from later redemptioner,
impugning its validity on that ground. Thus, provided that the
the private respondents‘ pleas for extensions judgment debtor has
of time to redeem the subject property are of not exercised his right
the same genre. (Perez vs. CA, Supra) of redemption.
Once he redeems, no Further redemption is
Redemptioner – a creditor with a lien further redemption is allowed, even after
subsequent to the lien under which the allowed. lapse of 1 year, as
property was sold. long as each
Right of Redemption: If the property sold is redemption is made
real property. within 60 days after
the last.
Who May Redeem
An action to annul the foreclosure sale does
Only the following may redeem: not suspend the period of redemption.

1) Judgment obligor or his successor-in- Notes:

Interest within 1 year from the date of
registration of the Certificate of Sale; or
2) Redemptioner, within of 1 year from the
date of registration of the Certificate of
Sale or within 60 days from the last
redemption by another redemptioner.
(Sec. 27, Rule 39)
The purchaser is not entitled to the rents,
fruits or income of the property pending the
redemption and shall belong to the judgment
Certificate of Sale
 If the Certificate of Sale is not registered,
the period of redemption does not run,
except where the parties agreed on the
date of redemption. In such a case, the
statutory period for legal redemption is
converted into one of conventional

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redemption and the period is binding on
them.
 The Certificate of Sale of real property is
merely a memorial title of the fact of sale
and does not confer any right to the
possession, much less the ownership, of
the real property purchased.
 Certificate of Sale in case of personal
property is optional.
 It is the Deed of Sale executed by the
Sheriff at the expiration of the period of
redemption which constitutes effective
conveyance of the property sold.
 If the lien of the creditor is prior to the
judgment under which the property was
sold, he is not a redemptioner.
 The right of redemption is transferable
and may be sold voluntarily, but said right
cannot be levied upon by the judgment
creditor.
Rights of the judgment obligor
 Remain in possession of the property
(cannot be ejected).
 Collect rent and profits.
 Make necessary repairs.
 Failure to give notice on assessment,
taxes or liens will result in the redemption
of property without the need to pay for
taxes, assessment.
 The period of redemption is not
suspended by an action to annul the
foreclosure sale.
 The court may award an additional period
to redeem under special circumstances.
 Redemption can be made in other forms
than cash. The rule is liberality in allowing
redemption.
Offer to Redeem
 Redemption cannot be effected by an
offer to redeem.
 The offer to redeem must be accompanied
with a bona fide tender or delivery of the
redemption price.
 A formal offer with tender is not necessary
where the right to redeem is exercised
through the filing of a complaint to
redeem in courts within the period to
redeem.
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Proof of Redemption
 If redemption is by redemptioner, proof is
necessary and he must show to the
person or officer whom he seeks to
redeem:
 A certified copy of the judgment or final
order if he redeems upon a final order or
judgment.
 A certified memorandum of the records
thereof if he redeems upon a mortgage or
other lien.
 An original or certified copy of the
assignment if he redeems upon
assignment.
 In all cases, he must present an affidavit
executed by him or his agent showing the
amount due on the lien.
 There is no need of proof if redemption is
by judgment debtor.
 Failure of redemptioner to show proof is a
ground for refusal to allow redemption.
Deed of conveyance
 The Deed of Conveyance transfers to the
purchaser whatever rights the judgment
debtor had in the property.
 The purchaser is entitled to a conveyance
and possession of the property if there is
no redemption.
 The purchaser is substituted to and
acquires all the rights, title, interest and
claims of the judgment obligor to the
property at the time of levy.
 The purchaser acquires no better right
than what the judgment debtor has in the
property levied upon
 If the judgment debtor or his successor-
in-interest are in possession of the
property levied upon, the court has
jurisdiction to issue writ of possession to
the purchasers but not when third persons
are involved.
In such a case, the procedure is:
 For the court to order a hearing; and
 For the court to determine the nature of
such adverse possession.
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The purchaser can recover the purchase price
from the judgment creditor in the following
situations:
 When the purchaser fails to recover
possession of property.
 If the purchaser is evicted due to:
 Irregularities in the proceedings
concerning the sale;
 Reversal or setting aside of judgment;
 Fact that the property was exempted from
execution; and
 Third person has vindicated his claim to
the property
Successive Redemption
 Property redeemed may again be
redeemed within 60 days after
redemption, with 2% added thereon, plus
assessments/taxes paid by last
redemptioner.
 Written notice of redemption must be
given to the officer who has made the
sale, the duplicate filed with the Registry
of Deeds of the place, if redemptioner
paid any assessments/taxes.
 Notice shall also be made in like manner
to the officer and filed with the Registry.
If there is no notice of said taxes, property
may be redeemed without paying such
taxes.
Remedies of judgment creditor in aid of
execution
Section 36: If the execution is returned
unsatisfied, he may cause examination of the
judgment debtor as to his property and
income
Section 37: He may cause examination of
the debtor of the judgment debtor as to any
debt owned by him or to any property of the
judgment debtor in his possession
Section 37: If after examination, the court
finds that there is property of the judgment
debtor either in his own hands or that of any
person, the court may order the property
applied to the satisfaction of judgment.
Section 40: If the court finds the earnings of
the judgment debtor are more than sufficient
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for his family‘s needs, it may order payment in
installments.
Section 41: The court may appoint a receiver
for the property of the judgment debtor not
exempt from execution or forbid a transfer or
disposition or interference with such property.
Section 42: If the court finds that the
judgment debtor has an ascertainable interest
in real property either as a mortgagor,
mortgagee, or otherwise, and his interest can
be ascertained without controversy, the court
may order the sale of such interest.
Section 43: If the person alleged to have the
property of the judgment debtor or be
indebted to him, claims an adverse interest in
the property or denies the debt, the court may
authorize the judgment creditor to institute an
action to recover the property, forbid its
transfer and may punish disobedience for
contempt.
Claims against surety
A case may be filed against the surety
provided the principal is informed about it.
3.S.7. Examination of judgment obligor
when judgment is unsatisfied
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, 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. 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.

3.S.8. 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 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
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. 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 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.
3.S.9. Effect of judgment or final orders
Rule on Res Judicata in Judgment in rem
(Sec. 47[a], Rule 39)
In res judicata, the parties and the causes of
action in both suits are identical or
substantially the same. The judgment in the
first action is conclusive as to every matter
offered and received therein and as to any
other matter admissible therein and which
might have been offered for that purpose.
Hence, it is an absolute bar to subsequent
action for the same cause.
Rule on Res Judicata in Judgments in
personam (Sec. 47 [b], Rule 39)
Requisites of Res Judicata:
 The former judgment or order must be
final.
 It must be a judgment or order on the
merits, that is, it was rendered after a
consideration of evidence or stipulations
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submitted by the parties at the trial of the
case.
 It must have been rendered by a court
having jurisdiction over the subject matter
and the parties; and
 There must be between the first and
second actions, identity of parties, of
subject matter and of cause of action.
This requisite is satisfied if two actions are
substantially between the same parties.
(Perez vs. CA, G.R. No. 157616. July 22,
2005)
 A judgment or order is on the merits of
the case when it determines the rights
and liabilities of the parties based on the
ultimate facts as disclosed by the
pleadings or issues presented for trial. It
is not necessary that a trial, actual hearing
or argument on the facts of the case
ensued. For as long as the parties had
the full legal opportunity to be heard on
their respective claims and contentions,
the judgment or order is on the merits. An
order of the trial court on the ground that
the complaint does not state a cause of
action is a determination of the case on its
merits. Such order whether right or wrong
bars another action based upon the same
cause of action. The operation of the
order as res judicata is not affected by a
mere right of appeal where the appeal has
not been taken or by an appeal which
never has been perfected. (Ibid)
 Absolute identity of parties is not a
condition sine qua non for the application
of res judicata. It is sufficient that there is
a shared identity of interest. Even if new
parties are found in the second action, res
judicata still applies if the party against
whom the judgment is offered in evidence
was a party in the first action; otherwise,
a case can always be renewed by the
mere expedience of joining new parties in
the new suit.
 The ultimate test to ascertain identity of
causes of action is whether or not the
same evidence fully supports and
establishes both the first and second
cases. The application of the doctrine of
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res judicata cannot be excused by merely the second suit was involved and decided in
varying the form of the action or engaging the first. And in determining whether a given
a different method of presenting the question was an issue in the prior action, it is
issue. (ibid) proper to look behind the judgment to
ascertain whether the evidence necessary to
Rule of Auter Action Pendent (Sec. 47[c], sustain a judgment in the second action would
Rule 39) have authorized a judgment for the same
party in the first action. (Ibid)
Also known as Conclusiveness of Judgment, it
has the effect of preclusion only as to issues. Note: Void judgment cannot be invoked as
res judicata but avoidable one can.
The concept of conclusiveness of judgment
under the principle of res judicata means that Res Judicata
Conclusiveness of
where between the first case where in Judgment
judgment is involved, there is identity of There is identity of Only identity of parties and
parties, but there is no identity of cause of parties, subject subject matter.
matter and cause of
action, the judgment is conclusive in the
action.
second case, only as to those matters merely
The first judgment The first judgment is
involved therein. (DOLE Philippines, Inc. vs. is an ABSOLUTE conclusive only as to
Esteva, et.al., G.R. 161115, November 30, 2006). BAR to all matters matter directly adjudged
directly adjudges and actually litigated in the
The parties in both action may be the same and those that first action, the second
but the causes of action are different. Hence, might have been action can be prosecuted.
the judgment in the first is binding only with adjudged.
respect to the matters actually raised and
adjudged therein and is not a bar to another 3.S.10 Effect of foreign judgments or
action between the same parties but on a final orders
different cause of action. (Viray vs. Marinas, et.
al.,49 SCRA 44) Philippine Rule on Recognition and
Enforcement of Foreign Judgment
Collateral estoppel or estoppel by verdict.
This applies where, between the first case 1) It is based on Comity
wherein judgment is rendered and the second 2) As vested right
case wherein such judgment is involved, there 3) As an obligation. The judgment of a court
is no identity of causes of action. It has been of competent jurisdiction over the
held that in order that a judgment in one defendant imposes a duty or obligation on
action can be conclusive as to a particular him to pay the same for which judgment
matter in another action between the same is given, which the courts in the country
parties or their privies, it is essential that the are bound to enforce.
issues be identical. If a particular point or 4) On the doctrine of res judicata (SCRA
question is in issue in the second action, and Annotation on Enforcement and Recognition of
the judgment will depend on the Foreign Judgments by Jorge R. Caquia)
determination of that particular point or
question, a former judgment between the Provided that the foreign tribunal had
same parties will be final and conclusive in the jurisdiction:
second if that same point or question was in
issue and adjudicated in the first suit; but the  In case of judgment against a specific
adjudication of an issue in the first case is not thing, the judgment is conclusive upon the
conclusive of an entirely different and distinct title of the thing.
issue arising in the second. In order that this  In case of a judgment against person, the
rule may be applied, it must clearly and judgment is presumptive evidence of a
positively appear, either from the record itself right as between the parties and their
or by the aid of competent extrinsic evidence successors-in-interest by a subsequent
that the precise point or question in issue in title

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In both instances, the judgment may be
repelled by evidence of want of jurisdiction
Enforcement and effect of foreign
judgments or final orders
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
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.
A foreign judgment on the mere strength of
its promulgation is not yet conclusive, as it can
be annulled on the grounds of want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact. It is likewise recognized in Philippine
jurisprudence and international law that a
foreign judgment may be barred from
recognition if it runs counter to public policy
(Republic vs. Gingoyon, GR 166429, June 27, 2006)
The case of Fujiki vs. Marinay (G.R. No. 196049,
June 26, 2013)
The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not
apply in a petition to recognize a foreign
judgment relating to the status of a marriage
where one of the parties is a citizen of a
foreign country.
For Philippine courts to recognize a foreign
judgment relating to the status of a marriage
where one of the parties is a citizen of a
foreign country, the petitioner only needs to
prove the foreign judgment as a fact under
the Rules of Court. x x x However, the effect
of a foreign judgment is not automatic. To
extend the effect of a foreign judgment in the
Philippines, Philippine courts must determine if
the foreign judgment is consistent with
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domestic public policy and other mandatory
laws. A petition to recognize a foreign
judgment declaring a marriage void does not
require relitigation under a Philippine court of
the case as if it were a new petition for
declaration of nullity of marriage. Philippine
courts cannot presume to know the foreign
laws under which the foreign judgment was
rendered. They cannot substitute their
judgment on the status, condition and legal
capacity of the foreign citizen who is under
the jurisdiction of another state. Thus,
Philippine courts can only recognize the
foreign judgment as a fact according to the
rules of evidence.
Section 48(b), Rule 39 that a foreign
judgment or final order against a person
creates a "presumptive evidence of a right as
between the parties and their successors in
interest by a subsequent title." Moreover,
Section 48 of the Rules of Court states that
"the judgment or final order may be repelled
by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact." X x x Courts are not
allowed to delve into the merits of a foreign
judgment
Regional Trial Court can recognize the foreign
judgment in a proceeding for cancellation or
correction of entries in the Civil Registry under
Rule 108 of the Rules of Court, since the
recognition of a foreign judgment only
requires proof of fact of the judgment. X x x
4. PROVISIONAL
REMEDIES
4.A. GENERAL MATTERS
4.A.1 Nature of Provisional Remedies
TEMPORARY, AUXILIARY, and ANCILLARY
remedies available to a litigant for the
protection and preservation of his rights while
the main action is pending, for the purposes
of the ultimate effects of a final judgment in
the case (Regalado, F. Remedial Law Compendium
Vol. 8th ad., p. 616).
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Provisional because it constitutes a temporary Provisional Remedies: provided for in

measure availed of during the pendency of the Rules of Court
action. (Buyco vs.Baraquia GR 177486 Dec,
21, 2009)
PROVISIONAL
WHEN AVAILABLE
Ancillary because it is subordinate to, mere REMEDIES
incident in and is dependent upon the result of Preliminary at commencement of action
the main action. Attachment or at any time but before
(Rule 57) entry of final judgment
Auxiliary because it gives support which
Preliminary any stage of the action but
supplement the main action. Injunction before entry of final
(Rule 58) judgment
Provisional remedies are NOT causes of action
in themselves but merely adjuncts to a main - any stage of the action or
suit (Estares vs CA, GR No. 144757, June 8, 2005) Receivership
proceeding and even after
(Rule 59)
final judgment therein.
Purpose of Provisional Remedies:
Replevin before the defendant files
 To preserve or protect their rights or (Rule 60) his answer.
interests while the main action is pending any stage of the action and
 To secure the judgment Support Pendente even for the first time on
 To preserve the status quo Lite appeal BUT before the final
 To preserve the subject matter of the (Rule 61) judgment in said case on
action. appeal.

4.A.2 Jurisdiction over Provisional 4.B. PRELIMINARY ATTACHMENT

Remedies
The court which has jurisdiction over the main
action. Even an inferior court may grant a
provisional remedy in an action pending with it
and within its jurisdiction. (Sec. 33[1] BP 129)
Note:
 As long as the main action is within their
jurisdiction, all inferior courts can grant all
appropriate provisional remedies. (Section
33{1}, B.P.129)
 A provisional remedy is a collateral
proceeding permitted only in connection
with a regular action, and as one of its
incidents; one which is provided for
present need, or for the occasion, that is,
one adapted for exigency.
Definition
Preliminary attachment is a provisional remedy
issued upon order of the court where an
action is pending to be levied upon the
property of the defendant so the property may
be held by the sheriff as security for the
satisfaction of whatever judgment may be
rendered in the case (Davao Light and Power,
Inc. vs. CA, 204 SCRA 343)
Since the attachment is a harsh and rigorous
remedy which exposed the debtor to
humiliation and annoyance, the rule
authorizing its issuance must be strictly
construed in favor of defendant(Cosiquien vs.
CA G.R. L-56073 Aug. 20, 1990)
Who may avail: (1) plaintiff or (2) any
proper party e.g. defendant who files
counterclaim

When Available (Sec. 1):

(1) At the commencement of the action:
Before summons is issued by the court OR
served on the defendant, the application may
be incorporated in a verified complaint

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alleging all the grounds relied upon and
complying with all the requisites for the grant
of application. If granted, it will result in an ex
parte issuance of the writ of preliminary
attachment (Riano, Civil Procedure Book 2, p. 15)
(2) At any time before entry (finality) of the
judgment: Since at this stage, the defendant
has already been summoned to the action, the
application for the issuance of an order of
attachment would entail notice to the
defendant.
Stages in the grant of a writ of
preliminary attachment:
1. A Court ORDER order granting the
application.
2. Issuance of WRIT pursuant to the order
3.IMPLEMENTATION of writ.
Note: For the initial two stages, it is not necessary
that jurisdiction over the person of the defendant
be first obtained. However, once the
IMPLEMENTATION of the writ commences, the
court must have acquired jurisdiction over the
defendant for without such jurisdiction, the court
has no power and authority to act in any manner
against the defendant.. (Cuartero.vs.Court of Appeals
G.R. No. 102448, August 5, 1992)
Hence, when the sheriff commences
IMPLEMENTATION of the writ of attachment, it is
essential that he serve on the defendant NOT ONLY
a copy of the applicant‘s affidavit and attachment
bond, and of the order of attachment, but also the
SUMMONS addressed to said defendant as well as
a copy of the complaint. (Davao Light and Power, Inc.
vs. CA, 204 SCRA 343)
Requisites for a preliminary attachment
to issue
1. Issuance of ORDER of Prel. Attachment:
The applicant must file a motion whether
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.
2. AFFIDAVIT: It is made to appear in the
Affidavit of the applicant or some other
person who personally knows the facts
that (Sec. 3):
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a. A sufficient cause of action exists;
b. The case is one of those enumerated
under Sec. 1,
c. There is no sufficient security for the
claim sought to be enforced by the
action;
d. 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.
Attachment Bond: The party applying
gives a bond executed to the adverse
party in an amount fixed by the court, not
exceeding the applicant‘s claim,
conditioned for the payment of costs, and
damages which may be awarded to the
adverse party, if the court decides that the
applicant is not entitled to the attachment
(Sec.4)
 The affidavit and the bond must be duly
FILED with the court before the writ of
attachment can be issued.
Purpose of Preliminary attachment:
 To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying said judgment.
 To enable the court to acquire jurisdiction
over the action by actual or constructive
seizure of the property in those instances
where personal or substituted service of
summons on the defendant cannot be
effected, as in par. (f) of Sec. 1 (PCIB vs
Alejandro GR 175587 Sept. 21, 2007)
Kinds of Attachment
1.Preliminary Attachment
Issued at the commencement of the action or at
any time before entry of judgment as security for
the satisfaction of any judgment thaty may be
received. Here, the court takes custody of the
property of the pary against whom the attachment
is directed.
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2. Garnishment
The attaching party seeks to subject to his claim
either the property of the adverse party, in the
hands of a 3rd person (garnishee), or the money
which said 3rd person owes the adverse party. It
does not involve actual seizure of the property
which remains in the hands of garnishee. It is a
manner of attaching property pursuant to a writ of
execution (Rule 39, Sec. 9c) or a writ of attachment
(Rule 57 Sec.5)
E.g. deposits of defendant in a bank, wages of
defendant held by employer
3. Levy upon execution to satisfy a final
judgment. Process employed AFTER the judgment
has become executor by which the property of the
judgment obligor is set aside and taken into
custody of the court before the sale of the property
on execution for the satisfaction of final judgment.
The sheriff appropriates the judgment debtor‘s
property pursuant to the writ of execution as
prelimnary step to the sale of execution of the
property. (Riano, Civil Procedure Book 2, p. 18)
4.B.1. Grounds for Issuance of Writ of
Attachment
1. 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 with
intent to defraud his creditors.
2. 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
attorney, factor, broker, or clerk, in the
course of his employment as such, or by
any person in a fiduciary capacity, or for a
willful violation of a duty.
Note: No need for a showing that the
defendant is concealing or disposing of his
property. It is the CHARACTER of the office or
the duty of defendant that is to be considered
(Riano, Civil Procedure Book 2, p. 21).
3. In an action to recover possession of
property unjustly or fraudulently taken,
detained, or converted, when the property,
or any part thereof, has been concealed,
158 CENTER FOR LEGAL EDUCATION AND RESEARCH
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removed, or disposed of to prevent, its
being found or taken by the applicant or an
authorized person.
Note: The circumstances of the defendant do
NOT matter as long as the acts mentioned have
been performed. (Riano, Civil Procedure Book 2,
p. 22).
4. In an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which action
is brought, or in the performance thereof.
5. In an action against a party who has
removed or disposed of his property, or is
about to so, with intent to defraud his
creditors.
6. 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 (Section 1, Rule 57)
Note: (1) Resident defendant BUT identity or
whereabouts are unknown - summons by
publication in ANY (in rem, quasi in rem or in
personam) action againt him (Sec. 14 Rule 14).
(2) Resident but temporarily out - summons by
publication in ANY action (Sec. 16 Rule 14 in rel. to
Sec. 15 Rule 14) OR substituted service in an
action in personam without the need of
attaching the property. (Sec. 7 Rule 14)
(3) Non-resident and not found in Phil involving
action in personam - personal, substituted, and
summons by publication cannot be effected, the
remedy of plaintiff is to CONVERT the action
into a proceeding in rem or quasi in rem by
attaching the property of the defendant. The
service of summons is no longer for the purpose
of acquiring jursidction over the person of the
defendant but for compliance with the
requirements of due process. (Riano, Civil
Procedure Book 2, p. 26-27)
4.B.2. Requisites
1. The applicant must file a motion whether 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.
2. It is made to appear in the Affidavit of the
applicant or some other person who
personally knows the facts that:

A sufficient cause of action exists;
a. The case is one of those enumerated
under Section 1, Rule 57
b. There is no sufficient security for the
claim sought to be enforced by the
action;
c. 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.
3. The party applying gives a bond executed to
the adverse party in an amount fixed by the
court, not exceeding the applicant‘s claim,
conditioned for the payment of costs, and
damages which may be awarded to the
adverse party, if the court decides that the
applicant is not entitled to the attachment.
4. The affidavit and the bond must be duly filed
with the court before the writ of attachment
can be issued.
Issuance and contents of order of
attachment; Affidavit and bond (sec. 2,
rule 57)
Affidavit and Bond (SEC 3, RULE 57)
 Issued either EX PARTE or upon motion
with notice and hearing by the court in
which the action is pending.
 When issued ex parte, the writ may not be
enforced and may validly implemented,
unless preceded by a service of summons
upon the defendant, or simultaneously
accompanied by service of summons, a
copy of the complaint, the application for
attachment, the order of attachment bond
and the attachment bond.
 The affidavit must contain all the
allegations required, failure to do so
renders the writ fatally defective as the
judge issuing it acts in excess of
jurisdiction.
Affidavit & bond requirement:
The affidavit must allege the following:
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a) A sufficient cause of action exists.
b) The case is one of those enumerated
under Section 1, Rule 57.
c) There is no sufficient security for the claim
sought to be enforced by the action.
d) 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.
Affidavit and bond must be duly filed with the
court before the order of attachment is issued.
Stages in the grant of a writ of
preliminary attachment:
1. The Court issues the order granting the
application.
2. The writ of attachment is issued pursuant
to the order granting the writ.
3. The writ is implemented.
Note: For the initial two stages, it is not
necessary that jurisdiction over the person of
the defendant be first obtained. However,
once the implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant for without
such jurisdiction, the court has no power and
authority to act in any manner against the
defendant. Any order issuing from the Court
will not bind the defendant. (Mangila v. Court of
Appeals G.R. No. 125027, August 12, 2002)
 The deposit or bond required of the
attaching party shall be in the amount
fixed by the court in the order of
attachment, or equal to the value of the
property to be attached.
Order may be issued either EX PARTE or upon
MOTION with notice and hearing by the court
in which the action is pending, and may even
be issued on appeal by the CA or SC. (SEC. 2)
When the case is on appeal, the judgment is
not yet final and executory and this means
that there is yet no entry of the judgment.
When issued EX PARTE and even before
summons is served upon defendant, the writ
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may not be enforced and may validly
implemented, unless PRECEEDED or
SIMULTANEOUSLY ACCOMPANIED by (1)
service of summons, (2) a copy of the
complaint, (3) the application for attachment,
(4) affidavit and bond (5) order and writ of
attachment (Sec.5)
Note: An order and writ of attachment may be
grandted ex parte because it is possible that during
the course of hearing, the party against whom the
writ is sought may dispose of his property or
abscond before the writ is issued. It has been held
that nothing in the Rules of Court makes notice and
hearing indispendable and mandatory requisite for
the isuuance of a writ of attachment (Filinvest
Credit vs. Relova, 117 SCRA 420, 428 )
(1) FILING of requisite (a) AFFIDAVIT and (b)
BOND
a. Affidavit (Sec. 3). May be executed
either by the applicant or of some other
perons who personally knows the facts. It
must contain the ff:
i. A sufficient cause of action exists;
ii. The case is one of those enumerated
under Sec. 1,
iii. There is no sufficient security for the claim
sought to be enforced by the action;
Note: Writ will noT be issued if a real
estate mortgage exists to secure the
obligation even if, instead of filing an
action for foreclosure, an action for a sum
of money was filed (Salgado vs. CA, 128
SCRA 395)
iv. 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. (Sec. 3)
Note:Affidavit must contain all the
allegations required, failure to do so
renders the writ fatally defective as the
judge issuing it acts in excess of
jurisdiction
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Attachment Bond/Applicant‟s Bond (Sec.
4):
The party applying gives a bond executed to
the adverse party in an amount fixed by the
court, not exceeding the applicant‘s claim,
conditioned for the payment of costs, and
damages which may be awarded to the
adverse party, if the court decides that the
applicant is not entitled to the attachment
(Sec.4)
Note: Damages sustained by reason of the
attachment, not be reason of some other
cause.
4.B.4. Rule on Prior or Contemporaneous
Service of Summons: (Sec. 5, rule 57)
General Rule: Sheriff is not allowed to make
a levy on attachment unless if such levy is
PRECEDED or CONTEMPORANEOUSLY
ACCOMPANIED by the service on the
defendant within the Philippines of the ff:
1. Service of summons
2. Copy of the complaint
3. Application for attachment
4. Applicant‘s affidavit and bond; and
5. Order and writ of attachment
Note: The IMPLEMENTATION (3rd Stage) of a
writ of preliminary attachment issued ex parte
cannot bind and affect the defendant until
jurisdiction over his person is obtained.
Therefore, it is required that when the sheriff
commences implementation of the writ of
attachment, service of the writ and of the
summons should be contemporaneously, if not
previously, made.
Exception: The Rule on prior or
contemporaneous shall NOT apply when:
1. Summons could not be served personally
or by substituted service despite diligent
efforts.
2. Defendant is a resident of the Philippines
temporarily absent therefrom.
3. Defendant is a non-resident of the
Philippines.
4. Action is one in rem or quasi in rem.
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Reason for exceptions: Without these and

excpetions, the party against whom the writ is
directed would be able to frustrate the ends of
justice by the simple expedient of
disappearing and intentionally putting himself
beyond the reach of court processes. Notice
that mose of these exception are instances
where service of summond by publication may
be justified. (Riano, Civil Procedure Vol 2, page
34-35)
Belated service of summons cannot be
deemed to have cured the fatal defect in the
enforcement of the writ The subsequent
service of summons does not confer a
retroactive acquisition of jurisdiction over her
person because the law does not allow for
retroactivity of a belated service. (Torres v.
Satsatin G.R. No. 166759 November 25, 2009)
4.B.5. Manner of Attachment of Real or
Personal Property; When Property
Attached is Claimed by Third Party
Property Manner of attachment
Real property, or 1.) By Filing with the Registry of
growing corps Deeds the ff:
thereon, or any
interest therein a.) copy of the order of
(par. a) attachment
b.) description of the property
attached and
c.) notice that the property
subject of the writ is attached
2.) Next, 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:
(a) number of the certificate of
title;
(b) volume and page in the
registration book where the
certificate is registered;
(c) registered owner or owners
thereof.
Personal By taking and safely keeping it
Property capable under custody, after issuing a
of manual corresponding receipt.
delivery (par. b)
Stocks or share, By leaving with the president or
or an interest managing agent thereof the
therein, of any following:
corporation or (a) copy of the writ; and (b)
company: (ar. c) notice stating that the stock or
interest of the party against
whom the attachment is issued
is attached in pusurance of such
writ
Bank Deposits By leaving with the person
and similar (garnishee) owing such debts or
property not having in his possession or
capable of control, such credits or other
manual delivery personal property, or with his
(GARNISHMENT) agent, the following:
par d
(a) copy of the writ; and
(b) 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.
Effect: The person having
possession or control of the
debts, credits, and similar
personal property belonging to
the person against whom the
attachment is issued shall be
liable to the applicant for the
amount of the property, debts,
or credits.
This liability continues until the
attachment is discharged or
until the judgment recovered by
the applicant is satisfied. This
liability or responsibility shall
cease if the property subject of
the writ is delivered or
transferred, or the debts or
credits are paid to he clerk,
sheriff or other proper officer of

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the court issuing the
attachment (Sec. 8)
Interest in By serving the executor,
property administrator or other personal
belonging to the representative of the decedent
estate of the the ff:
decedent (par e)
(a) copy of the writ; and
(b) notice that said interest is
attached
A copy of said writ of
attachment and notice shall also
be filed in the office of the clerk
of court in which said estate is
being settles. The same shall
likewise be served upon the
heir, legatee or devisee
concerned.
Effect: Does not have the effect
of impairing the powers of
administration of the executor,
administrator or personal
representative of the decedent.
The representative, however, is
obligated to report the
attachment to the court when a
petition for distribution is filed.
The property attached shall be
delivered to the sheriff making
the levy, subject to the cliam of
the heir, legatee or devisee, or
any person claiming under him
(Sec. 9).
Property in A copy of th writ of attachment
custodia legis shall be filed with the proper
(last par) court or quasi-judicial agency,
and notice of the attachment
served upon the custodian of
said property.
Priority in liens: The 1st
attachment will have priority
over subsequent attachments.
The attachment of property
already in custodial legis merely
operates as a lien and does not
mean that the attaching court
will wrest custody of the
property from another court.
(Riano, Civil Procedure Vol. 2,
pages 38-39)
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Garnishment
 Specie of attachment for reaching credits
pertaining or payable to a judgment
debtor and owing to him from a stranger
to the litigation. (Rizal Commercial Banking
Corporation vs. Castro, GR No. L-34548,
November 29, 1988).
Salaries can be attached only at the end
of the month or on the payday provided
by contract or law, as, prior thereto; the
same do not constitute money ―due‖ to
the debtor from his employer.
Property legally attached is property in
custodia legis and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where
the property belongs to the defendant or
one which the defendant has proprietary
interest. (Traders Royal Bank vs IAC, G.R. No.
66321, October 31, 1984)
When Property Attached is Claimed by
Third Party (Sec. 14)
Remedies of a 3rd person, not a party to the
action, whose property is attached:
(1) By filing a TERCERIA - an affidavit of his
title thereto or his right to the possession
thereof, stating the grounds of such right
or title. The affidavit must be served upon
the sheriff while he has possession of the
attached property, and the attaching
property.
Upon service of the affidavit upon the
sheriff, he shall not be bound to keep the
property under attachment unless the
attaching party files an INDEMNITY
BOND approved by the court. The sheriff
shall not be liablt for damages for the
taking kr keeping of the property, if such
bond shall be filed. (Sec. 14)
Attachment Bond Indemnity Bond
(Sec. 4) (Sec. 14)
To assure the return To indemnify the
of defendant‘s sheriff against any
personal property or claim by the
the payment of intervenor to the
damages to the property seized or for
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defendant if the damages ariing from and hearing, the court shall direct that the
plaintiff‘s action to such seizure, which attachment be discharged.
recover possession the sheriff was
of the same making and for which Attachment Bond Counter-bond
property fails. the sheriff was (Sec. 3) (Sec. 12)
directly responsible to To assure the return To secure the
the 3rd part. (Fort of defendant‘s payment of any
Bonifacio Dev. Corp personal property or judgment that the
vs. Yllas Lendin Corp, the payment of attaching party may
567 SCRA 454,472) damages to the recover in the
defendant if the action.(Sec. 12). It is
(2) SUMMARY HEARING - Upon application of plaintiff‘s action to also a replacement of
the 3rd personl through a motion to set recover possession the property formerly
aside the levy on attachment, the court of the same attached and just as
shall order a summary hearing to property fails. the latter, may be
determine whether the sheriff has acted levied upon final
rightly or wrongly in the performance of judgment. (Security
his duties in the execution of the writ of Pacific Assurance Corp.
attachment. The court may order the vs. Tria-Infante, 468
sheriff to release the property from the SCRA 526, 536)
erroneous levy and to return the same to
the 3rd person.
(3) File a SEPARATE ACTION (totally distinct 2. By filing a motion to set aside or
action from the former case) to nullify the discharge the attachment on other
levy with damages resulting from the grounds without need for filing a counter-
unlawful levy and seizure. (Ching vs. CA, bond.
423 SCRA 356, 369)
(4) File a MOTION FOR INTERVENTION The filing shall be based on the following
provided no judgment has yet been grounds:
rendered in tha action (Sec. 2, Rule 19)
a) That the order of attachment was
4.B.6. DISCHARGE OF ATTACHMENT AND improperly or irregularly issued or
THE COUNTER-BOND enforced. (Sec. 13)
b) That the bond furnished by the
A writ of attachment that has NOT yet been applicant is insufficient. (Sec. 3.)
effected may PREVENT the attachment by c) The attachment is excessive (the
making a DEPOSIT or COUNTER-BOND discharge shall be limited to the
executed to the applicant in an amount equal excess);
to the bond fixed by the court in order of d) The property attached is exempt from
attachment or to the value or the property ot execution, hence exempt from
be attached, exclusive of costs.(Sec.5) preliminary attachment. (Sec. 2 and 5)

A writ of attachment already enforced may be
DISCHARGED in the following ways:
1. By filing a motion to discharge the
attachment and making a DEPOSIT or
COUNTER-BOND (Sec.12). The motion
shall be filed by the party whose property
has been attached or the person
appearing on his behalf. After a due notice
The motion may be filed before levy, after
levy, or even after the release of the
attached property.
After due notice and hearing, the court
shal orfder the setting aside or the
corresponding discharge of the
attachment. (Sec. 13)
 Effect of Discharge: The property
attached or the proceeds of ay sale

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thereo, shall be delivered to the party be known as a

making the deposit or giving the counter- preliminary
bond, or to the person appearing on his mandatory injunction
behalf. The deposit or counterbond shall (Sec. 1).
To preserve the To preserve the status
stand in the place of the property
status quo or to quo until the hearing of
attached. (Sec. 12) prevent future wrongs the application for
in order to preserve preliminary injunction.
4.B.7. Satisfaction of Judgment Out of and protect certain
Property Attached (Sec. 15, Rule 57) interests or rights Note:
during the pendency If before the expiration of
Satisfaction of judgment in the following of the action (Cortez- the 20 day period, the
manner: Estrada vs. Heirs of application for preliminary
Domingo, 451 SCRA 275 injunction is denied, the
[2005]). TRO would be deemed
a. By paying the judgment creditor the
automatically vacated. If
proceeds of all sales of perishable or other no action is taken by the
property sold in pursuance of the order of judge within the 20 day
the court, or so much as shall be period, the TRO would
necessary to satisfy the judgment. automatically expire on
b. If any balance remains due, by selling so the 20th day by the sheer
much of the property, real or personal, as force of law, no judicial
may be necessary to satisfy the balance, if declaration to that effect
enough for that purpose remain in the being necessary (Bacolod
City Water District vs.
sheriff‘s hands, or in those of the clerk of
Labayen, 446 SCRA 110).
court.
Cannot be granted May be granted ex parte if
c. By collecting from all persons having in without notice and it shall appear from facts
their possession credits belonging to the hearing shown by affidavits or by
judgment debtor, or owing debts to the the verified application
latter at the time of the attachment of that great or irreparable
such credit and debts as determined by injury would result to the
the court in the action, and stated in the applicant before the
judgment, and paying the proceeds of matter can be heard on
such collection over to the judgment notice, the court in which
the application for
creditor.
preliminary injunction was
made my issue a TRO ex
4.C. PRELIMINARY INJUNCTION parte for a period not
exceeding 20 days from
4.C.1. Definitions and Differences: service to the party
Preliminary Injunction and Temporary sought to be enjoined
Restraining Order (TRO) Valid until it is Has a lifetime of: 20 days
dissolved (if issued by the RTC or
PRELIMINARY TEMPORARY MTC); or 60 days (if
INJUNCTION RESTRAINING ORDER issued by the Court of
Order granted at any An order to maintain the Appeals); or if issued
stage of an action or status quo between and Supreme Court shall be
proceeding prior to among the parties until effective until further
the judgment or final the determination of the orders
order, requiring a prayer for a writ of
party or a court, preliminary injunction. Purpose of Preliminary Injunction:
agency or a person to To preserve the status quo by restraining
refrain from a Provisional remedy within action or interference or by furnishing
particular act or acts. a provisional remedy. preventive relief.
It may also require
the performance of a
Status Quo is defined as the last actual,
particular act or acts,
in which case it shall
peaceful, and uncontested status that

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precedes the actual controversy, that which is d. There is an urgent and paramount
existing at the time of the filing of the case. necessity for the writ to prevent serious
irreparable damage.
Distinction Between Preliminary
Injunction, Temporary Restraining Formal Requisites
Order, and Status Quo Order.
a.) There mus be a verified application.
STATUS QUO
INJUNCTION TRO
ORDER b.) The applicant must post a bond, unless
May exceed 20 Does not Lasts until exempted by the court. (Sec. 4b, Rule 58)
days. exceed 20 revoked. Subject
days. to agreement of
c.) The court must conduct a hearing.(Sec. 5,
the parties.
Restrains or Maintain Does not Rule 58). It cannot be issued ex parte.
requires the status specifically direct
performance of quo. the performance 4.C.3. Kinds of injunction
particular acts. of an act
PROHIBITORY MANDATORY
A Preliminary Injunction is an order granted at Requires one to Requires the
any stage of an action or proceeding prior to REFRAINfrom the PERFORMANCE of a
the judgment or final order, requiring a party performance of a particular act or acts.
or a court, agency or a person to refrain from particular act or acts.
The act has not yet The act has already been
a particular act or acts. It may also require the
been performed performed and this act
performance of a particular act or acts in because it is has violated the rights of
which case it shall be known as Preliminary restrained or another
Mandatory Injunction. (Sec. 1, Rule 58) prevented by
injunction
A Temporary Restraining Order is issued to
preserve the status quo until the hearing of Its purpose is to Its purpose is to restore
the application for a writ of preliminary prevent a future or the status quo and then
injunction because the injunction cannot be threatened injury. preserve the said status
issued ex parte. (Bacolod City Water District vs Hence, status quo is quo which has been
preserved restored.
Labayen, G.R. NO. 157494, December 10, 2004)

A Status Quo order is not a temporary 4.C.4. When Writ May be Issued
restraining order. It is more in the nature of a
PRELIMINARY
cease and desist order, has no specified FINAL INJUNCTION
INJUNCTION
duration, and does not specifically direct the
Section 1, Rule 58 Section 9, Rule 58
performance of an act. It lasts until revoked. One issued in the
Its duration may even be subject to Granted at any stage judgment in the case
agreement of the parties. No bond is required of an action prior to permanently restraining
for its issuance. the judgment or final defendant or making the
order therein preliminary injunction
4.C.2. Requisites permanent.

Essential Requisites: 4.C.5. Grounds for the Issuance of a Writ

of Preliminary Injunction: (Sec. 3, Rule 58)
a. there exists a clear and unmistakable
right to be protected. a. That the applicant is entitled to the relief
b. This right is directly threatened by an act demanded.
sought to be enjoined b. That the act or acts complained of during
c. The invasion of this right is material and the litigation would probably work
substantial injustice to the applicant.

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c. That the act or acts are in violation of the 2. Notice of the raffle of the case for
rights of the applicants and tend to render assignment to a judge or branch is sent to
the judgment ineffectual. the parties to be enjoined;
3. The raffle is held.
4.C.6. Grounds for The Objection to, or 4. The judge assigned to the case conducts a
For The dissolution of Injunction or summary hearing on the prayer for a TRO.
Restraining Order (Sec 6, Rule 58) 5. The TRO may be issued good for 20 days
but a bond may be required. The period of
1.) Complaint is insufficient 72 hrs is included in the 20 day period.
6. The hearing in the preliminary injunction
Note: It is insufficient if it is not verified and is set and heard.
supported by any of the grounds for its issuance 7. The writ of preliminary injunction is issued
under Sec. 3, does not show facts entitling the under bond or is denied.
applicant to the relief demanded, or is not
supported by the required bond under Sec. 4.
4.C.7. Duration of TRO: (Sec 5, Rule 58)
2.) On other grounds upon affidavits of the 1. If great or irreparable injury would result
party or person enjoined, which may be to the applicant before the matter can be
opposed by the applicant also by affidavit. heard on notice, the court may issue a
TRO ex parte , effective only for 20 days
3.) Defendant is permitted to post a counter- from service on the party sought to be
bond, it appearing that he would sustain great enjoined.
damages while the plaintiff can be amply 2. If the matter is of extreme urgency and
compensated. the applicant will suffer grave injustice
and irreparable injury:
Injunction Distinguished from
Prohibition a. The judge may issue ex parte a TRO
effective for only 72 hours from
INJUNCTION PROHIBITION
issuance but shall immediately comply
Directed against a Directed against a court,
party in the action tribunal or a person
with the rule on prior or
exercising judicial contemporaneous service of summons
powers and the documents to be served
Does not involve Based on the ground therewith, unless the same could not
jurisdiction of the that the court against be served personally or by substituted
court whom the writ is sought service despite diligent efforts or for
had acted without or in other reasons stated in the rule.
excess of jurisdiction
It may be the main Always the main action b. Its effectivity may be EXTENDED for a
action itself or just a
period not exceeding 20 days including
provisional remedy
the original 72hours already given.
Procedure to obtain a writ of preliminary
Note: Irreparable injury – constant
injunction and a temporary restraining order
and frequent recurrence that no fair or
reasonable redress can be had in a court
Under SC ADMINISTRATIVE CIRCULAR
of law.
20-95
If application for preliminary injunction is
A complaint is filed with a proper application
denied or not resolved within 20 days, the
for preliminary injunction and TRO.
TRO is deemed automatically vacated.The
effectivity of the TRO is not extendible. There
1. If it is filed in a multi-sala court, the
is no need of a judicial declaration to that
executive judge may issue an ex parte
effect.. and no court shall have authority to
TRO good only for 72 hrs. The judge in a
extend or renew the same on the same
single sala may also do so.

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ground for which it was issued (Sec. 5, par 3,
Rule 58)
If issued by Court of Appeals or any
member thereof: non-extendible period of
60 days from service and automatically
expires on the 60th day. No judicial declaration
that it has expired is necessary (Sec. 5, par 4,
Rule 58)
 If issued by Supreme Court or any
member thereof: It shall be effective
until further orders (Sec. 5, par. 4, Rule 58)
Sec. 5. Rule 58 as amended by A.M. No. 07-7-
12-SC, 27 Dec 2007.
The trial court the C.A., the Sandiganbayan or
the CTA that issued a writ of preliminary
injunction against a lower court, board,
officer, or quasi-judicial agency shall decide
the main case or petition within six (6) months
from the issuance of the writ.
4.C.8. In Relation to RA 8975, Banning
the Issuance of TRO or Writ of
Injunction in Cases Involving
Government Infrastructure Projects
Sec. 3 of RA 8975 prvodes:
―No court, except the Supreme Court,
shall issue any TRO, preliminary
injunction, preliminary mandatory
injunction against the government or any
of its subdivisions, officials or any person
or entity, whether public or private acting
under the government direction, to
retrain, prohibit or compel the following
acts:
a. Acquisition, clearance and
development of the right-of-way
and/or site or location ofany nationals
government projecy;
b. Bidding or awarding of
contract/project of the national
government as defined in Sec. 2
hereof;
c. Commencement, prosecution,
execution, implementation, operation
of any such contract or project;
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d. Termination or rescission of any such
contract/project; and
e. The undertaking or authorization of
any other lawful activity necessary for
such contract/project.
Reason: Injunctions and restaining orders
tend to derail the expeditious and efficient
implementation and completion of government
infrastructure projects; increase construction,
maintenance and repair costs; and delay the
enjoyment of the social and economic benefits
therefrom.
4.C.9. Rule on Prior or Contemporaneous
Service of Summons in Relation to
Attachment
General Rule: Notice of an application for a
writ of preliminary injunction or TRO included
in a complaintor any initiatory plreading shall
be preceded or contemporaneously
accompanied by service of summons together
with the a copy of the complaint or any
intiatory pleading and the applicant‘s affidavit
and bond upon the adverse party (Sec. 4, par
c, Rule 58)
Exceptions:
1. Summons could not be served personally
or by substituted service despite diligent
efforts
2. Adverse party is a resident of the
Philippines but temporarily absent
therefrom
3. Adverse party is a nonresident thereof
4.D. RECEIVERSHIP
It is a legal or equitable proceeding in which a
receiver is appointed for an insolvent
corporation, partnership or individual.
It is the state or condition of a corporation,
partnership or individual over whom a receiver
has been appointed for the protection of its
assets and for ultimate sale and distribution to
creditors.
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Jurisdiction
All inferior courts have jurisdiction to appoint a
receiver if the main case is within their
jurisdiction. (Sec. 33, B.P. Blg. 129)
It may also be granted by Court of Appeals or
any member therof, or Supreme Court or any
member thereof (Sec.1, Rule 59).
How commenced
By filing a VERIFIED APPLICATION to the
court where the case is pending(Sec.1, Rule
59).
Who may file
Any person having an interest in the property
of funds subject of the action (Sec.1, Rule 59).
When can receivership be resorted
Receivership may be resorted to during
a pendency of action; or after the judgment
has become final and executory. It can be
availed of to aid execution or carry the
judgment into effect. (Sec. 41, Rule 39)
Nature of Appointment of Receiver
The appointment of a receiver during the
pendency of an action is interlocutory in
nature and cannot be compelled by
mandamus, but certiorari will like if there was
grave abuse of discretion.
Receivership under Rule 59 is an ancilliary
action to the principal action. Receivership as
a main action is governed under Sec. 4 of Rule
39 (RIANO,Vol. II, page 85).
Receiver
A person appointed by the court in behalf of
all the parties to an action for the purpose of
preserving the property involved in the suit
and to protect the rights of all the parties to
an action under the direction of the court.
Person who may be appointed as
receiver
Any person indifferent to the parties who is
impartial and disinterested (RIANO, Vol. II, page
88).
Party in litigation: As a rule, a party in
litigation should not be appointed as a
168 CENTER FOR LEGAL EDUCATION AND RESEARCH
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receiver without the consent of the other
parties.
Receiver is an officer of court
A receiver is not an agent or representative of
any party in action. He is an officer of court
exercising his functions not for the interest of
either plaintiff or defendant but for the
COMMON BENEFIT of ALL parties in interest.
He is ―subject to the control of the
Court.‖(Pacific Merchandising Corp. vs Cosolacion
Insurance & Surety Co., 73 SCRA 564, 569-570;
RIANO, Vol. II, page 88)
PURPOSE: To protect and preserve the rights
fo the parties during the pendency of the main
action, during the pendency of an appeal, or
as an aid in the execution of a judgment as
when the writ of execution has been returned
unsatisfied.
4.D.1. Cases When Receiver May be
Appointed
Instances when receiver may be
appointed (Sec. 1, Rule 59)
When a party applying for a receiver has an
interest in the property or fund under
litigation, and the same is in danger of being
lost, removed or materially injured unless a
receiver be appointed to administer and
preserve it (Making Enterprise Inc vs. vs Jose
Marfori, .R. No. 152239, August 17, 2011);
In an action for the foreclosure of a mortgage,
the mortgaged property is in danger of being
wasted or dissipated or materially injured, and
that its value is insufficient to discharge the
mortgage debt, or if parties so stipulated in
the contract of mortgage (Commodities Storage
and Ice Plant Corporation vs Court of Appeals, G.R.
No. 125008, June 19, 1997);
After judgment, to preserve the property
during pendency of the appeal or to dispose of
it according to the judgment or to aid
execution thereof if unsatisfied (DSM
Construction and Development Corporation vs
Court of Appeals, G.R. No.166993, December 19,
2005);

Whenever it appears that the appointment of
a receiver is the most convenient and feasible
means of preserving, administering or
disposing the property in litigation (Louis
―Barok‖ C. Biraogo vs The Philippine Truth
Commission of 2010, G.R. No. 192935, December
7, 2010).
4.D.2. Requisites
1. A verified application must be filed by the
party applying for the appointment of a
receiver. (Sec. 1(a), Rule 59)
2. Applicant must have an interest in the
property or funds subject of the action
(Sec. 1(a), Rule 59).
3. The application must be with notice and
set for hearing.
4. Before issuing the appointment of a
receiver, the applicant is required to post
a bond executed to the party against
whom the application is presented(Sec. 2,
Rule 59).
5. The receiver must be sworn to perform his
duties faithfully and shall file a bond (Sec.
4, Rule 59).
Instances when receivership may be
denied or lifted (Sec. 3, Rule 59)
1. Appointment sought or granted is without
sufficient cause.
2. Adverse party files a sufficient bond to
answer for damages.
3. Bond posted by the applicant is
insufficient.
4. Bond of the receiver is insufficient.
4.D.3. Requirements Before Issuance of
an Order Appointing a 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
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additional bond as further security for such
damages (Sec. 2).
4.D.4. 20.3.4 General Powers of a
Receiver (Sec. 6, Rule 59)
a. To bring and defend action in his own
name in his capacity as receiver.
b. To take and keep possession of the
property in controversy.
c. To receive rents.
d. To collect debts due to himself as receiver
or to fund, property, , estate or
corporation of which he is the receiver.
e. To compound for and compromise the
same.
f. To make transfers.
g. To pay outstanding debts.
h. To divide the money and other property
that shall remain among the persons
legally entitled to receive them; and
i. Generally to do such acts respecting the
property as the court may authorize.
However funds in the hands of the
receiver may be invested only by order of
the court upon the written consent of all
the parties to the action.
Note: Contracts executed by a receiver
without the approval of the court constitute
his personal undertakings and obligations
4.D.5. Two (2) Kinds of Bonds
a. Applicant‘s Bond (for appointment of
receiver) – To pay the damages the
adverse party may sustain by reason of
appointment of receiver; and
b. Receiver‘s Bond (of the appointed
receiver, aside from oath) – To answer
for receiver‘s faithful discharge of his
duties (Sec. 2).
Action AGAINST the Receiver
Must be done with LEAVE OF COURT which
appointed him.
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,
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bills, documents and papers within his power

or control, subject of or involved in the action Replevin may be availed of:
or proceeding, or in case of disagreement, as
determined and ordered by the court, may be: a. At the commencement of the action; or
b. At any time before answer.
1. punished for contempt; and
2. shall be liable to the receiver for the PRELIMINARY
money or the value of the property and REPLEVIN
ATTACHMENT
other things so refused or neglected to be Purpose is to place the
Purpose is to recover
surrendered, together with all damages property in custodial egis
personal property
that may have been sustained by the to secure satisfaction of
capale of manual
party or parties entitled thereto as a judgement that may be
delivery from adverse
consequence of such refusal or neglect rendered in favor of
party
applicant.
(Sec. 7, Rule 59).
May be sought only Available even if
when the principal recovery of property is
4.D.6. Termination of Receiveship (Sec. 8, action is recovery of only incidental to the
Rule 59) personal property relief sought
Personal property Property belongs to the
The receivership shall be terminated if upon belongs either to defendant.
motion of either party or motu proprio by the Plaintiff or he has
court the necessity for a receiver no longer right of possession
exist. over the same.
No need to show that In some cases, needs to
Procedure in the termination of the property is being show that the property is
concealed or disposed being concealed,
receivership:
to the prejudice of removed, or disposed of.
plaintiff.
1. Due notice to all interested parties. Can be sought only May be resorted to even
2. Hearing when defendant is in if the property is in
3. Settling the accounts of the receiver actual or constructive possession of a third
4. Direct delivery of the funds and other possession of the person.
property in the receiver‘s possession to property
the person adjudged to receive. Only extends to Extends to all types of
personal property property whether real,
Receiver is allowed a reasonable capable of manual personal or incorporeal.
delivery
compensation set by the court as the case
Cannot be availed of Can be availed of even if
may warrant.
when property is in property is in custodia
custodia legis legis.
4.E. REPLEVIN (Rule 60) Available from
Available before
commencement but
defendant answers
 Replevin as a provisional remedy consists before entry of judgment
in the delivery, by order of the court, of a Bond is fixed by the
Bond is double the
personal property by the defendant to court. (RIANO, Vol. II,
value of the property
plaintiff, who shall give a bond to assure page 95)
the return thereof or the payment of
damages in case the plaintiff is not 4.E.1. When May a Writ of Replevin be
entitled thereto or to prevent damage or Issued
deterioration of the same during the
pendency of the suit. The provisional remedy of replevin can only be
 Replevin may be a main action or a applied for before answer. A party praying for
provisional remedy. As a principal action the recovery of possession of personal
its ultimate goal is to recover personal property may, at the commencement of the
property capable of manual delivery action or at any time before answer, apply for
wrongfully detained by a person. Used in an order for the delivery of such property to
this sense, it is a suit in itself. him (Sec. 1, Rule 60).

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Service of writ of replevin
A writ of replevin may be served anywhere in
the Philippines.
4.E.2. Requisites (SEC. 2, RULE 60)
1. Applicant must file for an application for
writ of replevin before defendant answers
 A party praying for the provisional remedy
must file an application for a writ of
replevin. His application must be filed at
the commencement of the action or at any
time before the defendant answers, and
must contain an affidavit particularly
describing the property to which he
entitled of possession. (Davao Light and
Power Co. Inc, vs.CA G.R. No. 93262
December 29, 1991)
2. Application must contain affidavit
executed by: a) applicant or b) any one
who has personal knowledge of facts.
3. Applicant must post a replevin bond
executed to the adverse party
Replevin Bond
Is the bond posted by the plaintiff executed to
the adverse party in DOUBLE the value of the
property as stated in the affidavit.
A replevin bond is intended to indemnify the
defendant against any loss that he may suffer
by being compelled to surrender the
possession of the disputed property pending
trial of action (Sec. 2, Rule 60).
4.E.3. Affidavit and Bond; Redelivery
Bond (SEC. 2, RULE 60)
The Affidavit must contain the following:
a. That the applicant is the owner of
property claimed, describing it or entitled
to its possession.
b. That the property is wrongfully detained
by the adverse party, alleging cause of its
detention.
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c. That the property has not been distrained
or taken for tax assessment or fine or
under writ of execution/attachment or
placed under custodia legis or if seized,
that it is exempt or should be released;
and
d. The actual market value of the property.
e. The affidavit must state the actual market
value of the property (Government of
Tuguegarao, represented by Robert P. De
Guzman, Petitioner, vs. Randolph S. Ting,
Respondent. G.R. Nos. 192435-36
September 14, 2011)
It must also state that the property has not
been distrained or taken for tax assessment or
a fine pursuant to law, or seized under a writ
of execution or preliminary attachment, or
otherwise placed in custodia legis. If it has
been seized, then the affidavit must state that
it is exempt from such seizure or custody.
(Navarro vs. Escobido G.R. No. 153788, November
27, 2009, supra).
Actions to be taken by the adverse party
in case of replevin (Sec. 5 & 6, Rule 60):
a. Put up a counter-bond in double the
amount of the chattel;
b. Furnish applicant with a copy of the
counter-bond within five days from the
date the sheriff took possession of the
property.
Note: Filing of a counter-bond and service of
copy thereof are mandatory.
Redelivery Bond (Sec 5, Rule 60)
 If the adverse party does not object to the
sufficiency of the applicant‘s bond, he
may, at any time before the delivery of
the property to the applicant, require the
return thereof, by filing with the court a
bond executed to the applicant. The bond
is double the value of the property.
It is required that the redelivery bond be
filed within the period of 5 days after the
taking of the property. The rule is
mandatory (Yang vs. Valdez, 177 SCRA 141).
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Defendant is entitled to the return of the
property taken under the writ of Replevin, if:
 He posts a redelivery bond
 The plaintiff‘s bond is found to be
insufficient or defective and is not
replaced with a proper bond
 The property is not delivered to the
plaintiff for any reason.
ORDER OF COURT and WRIT OF
REPLEVIN
Upon filing of affidavit and approval of bond,
the court shall issue:
a. an Order; and
b. Writ of Replevin
Writ of Replevin shall:
a. Describe the personal property alleged to be
wrongfully detained;
b. Require the Sherif to take such property in
his custody (Sec. 3, Rule 60).
4.E.4. Sheriff‟s Duty in the
Implementation of The Writ; When
Property is Claimed by Third Party
Upon receiving such order, the sheriff must:
1. serve a copy of order on the adverse
party, together with a copy of the
application, affidavit and bond, and
2. Take the property, if it be in the
possession of the adverse party, or his
agent, and
3. Retain the property in his custody.
Property is wholly or partly concealed
If the property or any part thereof be
concealed in a building or enclosure, the
sheriff must demand its delivery
If it be not delivered, he must cause the
building or enclosure to be broken open and
take the property into his possession.
Sheriff in possession of the property
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 party entitled thereto upon
172 CENTER FOR LEGAL EDUCATION AND RESEARCH
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receiving his fees and necessary expenses for
taking and keeping the same (Sec. 4).
Procedure when there is a third-party
claimant: (Sec. 7, Rule 60)
Any person other than the party against whom
the writ of replevin had been issued (THIRD-
PARTY) or HIS AGENT must
1. make an affidavit of his title thereto, or
right to the possession thereof, stating the
grounds therefor, and
2. serves such affidavit upon the sheriff while
the latter has possession of the property
and a copy thereof upon the
applicant(Sec. 4, Rule 60).
Effect:
Sheriff is not bound to keep the property
under replevin or deliver it to the applicant
UNLESS:
a. Applicant or his agent files a bond
approved by the court in a sum not less
than the value of the property under
replevin.
b. NO CLAIM FOR DAMAGES for the taking
or keeping of the property may be
enforced against the bond UNLESS the
action therefore is filed within 120 days
from the date of the filing of the bond.
c. Sheriff not liable for damages against
third-party claimant if bond is filed.
d. Filing of a bond NOT required when the
writ of replevin is issued in favor of the
Republic of the Philippines, or any officer
duly representing it.
e. Third-party claimant may vindicate his
claim to the property under replevin in the
same or separate action.
Judgment in the alternative:
a. For the delivery of the chattel to the party
entitled thereto;
b. For its value in case delivery cannot be
made, and also for such damages if
warranted.
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5. SPECIAL CIVIL Corporation, No. L-

25138, 29 SCRA
ACTIONS 145)

5.A. GENERAL MATTERS

5.A.1. Nature of Special Civil Actions

DECLARATORY RELIEF-
before breach or violation
Although both types of actions are governed
of deed, will, contract or
by the rules for ordinary civil actions, there are
other written instrument
certain rules that are applicable only to
or rights affected by
specific special civil actions (Sec. 3[a], Rule 1).
statute etc. (Sec.1, Rule
The fact that an action is subject to special
63)
rules other than those applicable to ordinary
Action is Initiated by either filing a
civil actions is what makes a civil action commenced by COMPLAINT
special. complaints. 1. Interpleader
2. Expropriation
5.A.2. Ordinary Civil Actions vs Special
3. Foreclosure of Real
Civil Actions
Estate Mortgage
4. Partition, and
ORDINARY
SPECIAL CIVIL ACTION 5. Forcible Entry and
CIVIL ACTION
Governed by Unlawful Detainer
Governed by Rules 62-71
Ordinary Rules
Involves formal or ―PETITIONS.‖
demand of one‘s Involves special features not 1. Declaratory Relief;
legal right in a found in ordinary civil action. 2. Review of
court of justice. Judgements of
GENERAL RULE: Based on COMELEC and COA;
cause of action 3. Certiorari, Prohibition
and Mandamus;
4. Quo Warranto; and
5. Indirect Contempt
EXCEPTION: Some Special
Civil Actions are not based on JURISDICTION JURISDICTION depends on
a cause of action. (i.e. is determined the type of special action.
Interpleader and Declaratory by nature of
Relief) action or
jurisdictional
 INTERPLEADER - amount
Must be based
on a cause of
filed by a plaintiff- involved.
action. interpleader who
May be filed Some can ONLY be filed in
either have NO
either in MTC MTC while other actions
INTEREST
or RTC. cannot be filed therein.
whatever in the
subject matter or
VENUE is Same as in ordinary civil
an INTEREST in
determined by action subject to specific
whole or in part is
determined by rules for a particular civil
NOT DISPUTED by
either the action (Sec. 3[a], Rule 1).
the claimants
residence of
(Beltran vs.
the parties
People's Homesite
where the
and Housing
action is

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personal or by (Depends on
the location of jurisdictional
the property amount)
where the Partition NO RTC
(Incapable of
action is real.
Pecuniary
Estimation)
5.A.3. Jurisdiction and Venue Forcible Entry YES. NO.
and Unlawful
Jurisdiction Detainer ONLY in MTC,
 Ordinary civil actions may be filed initially MeTC, MTCC,
in either the MTC of the RTC depending MCTC
upon the jurisdictional amount or the Contempt YES May also be
nature of the action involved. filed in RTC,
May be filed CA or SC
 There are special civil actions which can
in MTC
only be filed in the MTC like the actions
for forcible entry and unlawful detainer
Venue
while petitions for certiorari, prohibition,
Special civil actions are governed by the rules
and mandamus cannot be filed in the said
on ordinary civil actions subject to specific
court.
rules for a particular special civil action (Sec.
3[a], Rule 1)
Special Civil MTC OTHER
Action courts
Interpleader YES RTC
Ordinary Civil Actions
(Depends on Determined by either the residence of the
Maybe filed jurisdictional parties where the action is personal or by the
in MTC amount) location of the property where the action is
(Depends on real.
jurisdictional
amount) Special Civil Actions
Declaratory NO ONLY in RTC Rules on venue of Ordinary Civil Actions do
Relief
not always apply to a special civil action.
May be
subject to
exceptions. For instance, the venue in a petition for quo
warranto is where the Supreme Court or the
Review of NO ONLY in Court of Appeals sits, if the petition is
Judgements Supreme commenced in any of these courts and
and Final Court by without taking into consideration where the
Orders and Certiorari parties reside. It is only when the petition is
Resolutions of lodged with the RTC that the residence is
COMELEC and
considered in considering venue. A petition for
COA
quo warranto filed in the RTC merely looks
Certiorari, NO RTC, CA, SB
Prohibition or COMELEC into the residence of the respondent, not that
and (Election of the petitioner. But if it is the Solicitor
Mandamus cases in its General who commences the action, another
appellate special rule is followed because the petition
jurisdiction) may only be commenced in the RTC in Manila,
Quo Warranto NO RTC, CA, SC in the Court of Appeals or in the Supreme
Expropriation NO RTC Court.
(Incapable of
pecuniary
5.B. INTERPLEDER
estimation)
Foreclosure of YES RTC
Real Estate (Depends on It is a special civil action filed by a person
Mortgage Maybe filed jurisdictional against whom two conflicting claims are made
in MTC amount) upon the same subject matter and over which

174 CENTER FOR LEGAL EDUCATION AND RESEARCH

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PURPLE NOTES

he claims no interest, to compel the claimants possibility of having to pay more than once on
to interplead and to litigate their conflicting a single liability (Bank of Commerce vs. Planters
claims among themselves (Sec. 1, Rule 62, Rules Development Bank et.al., G.R. No. 154470-71,
of Court) September 24, 2012)

Who files the petition:

 Principle in Alvarez vs. Commonwealth (65
Phil. 302): ―The action of interpleader 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 in both 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 one or the other thing.‖ (Belo Medical
Group, Inc. vs. Jose l. Santos and Victoria G.
Belo, G.R. No. 185894, August 30, 2017)
The person against whom conflicting claims
are made. (Sec. 1, Rule 62)
Where to file the petition (JURISDICTION):
Based on jurisdictional amount (Riano, Vol II
and BP 129, Sec. 33):
1. MTC:
Personal property Value
 NOT EXCEED P300,000 (outside Metro
Manila)
 NOT EXCEED P 400,000 (within Metro
Manila)

 An interpleader is a compulsory Real Property value

counterclaim. A stakeholder's action of
interpleader is too late when filed after  NOT EXCEED P 20,000 (outside Metro
judgment has been rendered against him Manila)
in favor of one of the contending  NOT EXCEED P 50,000 (within Metro
claimants, especially where he had notice Manila)
of the conflicting claims prior to the
rendition of the judgment and neglected 2. RTC
the opportunity to implead the adverse
claimants in the suit where judgment was Personal or Real Property Value
entered. This must be so; because once
judgment is obtained against him by one  EXCEEDS the value wihin jurisdiction
claimant he becomes liable to the latter. of MTC
(Wack-wack Golf & Country Club vs. Lee Won  Subject-matter is incapable of
L-23851, March 26, 1976) Pecuniary Estimation

PURPOSE: The remedy of an action of Venue:

interpleader is designed to protect a person
against double vexation in respect of a single
liability. It requires, as an indispensable
requisite, that conflicting claims upon the
same subject matter are or may be made
against the stakeholder (the possessor of the
subject matter) who claims no interest
whatever in the subject matter or an interest
which in whole or in part is not disputed by
the claimants. Through this remedy, the
stakeholder can join all competing claimants in
a single proceeding to determine conflicting
claims without exposing the stakeholder to the
 Rules in Ordinary Civil Action applies (Sec.
2, Rule 4)
 Subject-matter is:
PERSONAL PROPERTY: Residence of
either plaintiff or defendant, at option of
plaintiff
REAL PROPERTY: Where property is
located or portion of it is located.

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Effect When a Claimant Fails to Plead Interpleader Intervention

Within the Time Fixed: (Rule 62) (Rule 19)
defendant implead them. pending suit.
 The court may, on motion, declare him in Issue an order Motion to
default and thereafter render judgment requiring the intervene
barring him from any claim in respect to allowance or addressed to the
The
the subject matter (Sec.5, Rule 62). disallowance of sound discretion
Court‟s
conflicting of the court.
action
claimants to
5.B.1. Requisites for Interpleader implead with
one another.
 The plaintiff claims no interest in the
subject matter or his claim thereto is not 5.C. DECLARATORY RELIEF AND
disputed. SIMILAR REMEDIES
 There must be at least two or more
conflicting claimants; Two Remedies:
 The conflicting claims are made against
the same person (plaintiff); and 1. Declaratory Relief
 The subject matter must be one and the 2. Similar Remedies
same.
 The procedural distinction between the
5.B.2. When to File two is that in actions falling under similar
remedies, the court is bound to render
Within a reasonable time after a dispute has judgment, whereas in actions falling under
arisen without waiting to be sued by either declaratory relief, the court may refuse to
contending claimants. Otherwise, the remedy exercise the power to declare petitioner‘s
is barred by laches or undue delay (Wack-wack right and to construe the instrument.
Golf & Country Club vs. Lee Won L-23851, March  There is yet no cause of action in a strict
26, 1976). sense under declaratory relief. (Lectures in
Remedial Law, Bengzon, p. 242, 1959 Edition)
Interpleader vs. Intervention  Where a declaratory judgment as to
disputed fact would be determinative of
Interpleader Intervention issues rather than a construction of
(Rule 62) (Rule 19) definite stated rights, status, and other
Filed as an Filed as an relations, commonly expressed in written
original special ancillary action instruments, the case is not one for
Kind of
civil action. depending on
action declaratory relief.
(Principal the original
action) action.
Plaintiff has no Plaintiff has The similar remedies are:
interest in the interest in the
subject matter matter under  Action for reformation of an instrument;
of the action or litigation, or  Action to quiet title; and
has an interest in the success of  Action to consolidate ownership under
therein which, either parties or Article 1607 of the Civil Code.
When
in whole or in an interest
proper to
part, is not against both to
file Jurisdiction
disputed by the be adversely
other parties. affected by the
distribution of General Rule: Only in appropriate RTC
the property in (incapable of pecuniary estimation) (Sec.1,Rule
the court or an 63; RIANO, Vol. II, page 149)_
officer thereof.
Defendants are Defendants are Exception:
being sued already original
Status of precisely to parties to the

176 CENTER FOR LEGAL EDUCATION AND RESEARCH


An action for QUIETING TITLE, a real action,
jurisdiction depends on the assessed value of
property.
The first paragraph refers to an action for
declaratory relief, which should be brought
before the RTC. The second paragraph,
however, refers to a different set of remedies,
which includes an action to quiet title to real
property. The second paragraph must be read
in relation to Republic Act No. 7691, which
vests the MTC with jurisdiction over real
actions, where the assessed value of the real
property involved does not exceed P50,000.00
in Metro Manila and P20,000.00 in all other
places. The first paragraph of Section 1, Rule
63 of the Rules of Court, describes the general
circumstances in which a person may file a
petition for declaratory relief[.] As the ...
provision states, a petition for declaratory
relief under the first paragraph of Section 1,
Rule 63 may be brought before the
appropriate RTC. The second paragraph of
Section 1, Rule 63 of the Rules of Court
specifically refers to (1) an action for the
reformation of an instrument, recognized
under Articles 1359 to 1369 of the Civil Code;
(2) an action to quiet title, authorized by
Articles 476 to 481 of the Civil Code; and (3)
an action to consolidate ownership required by
Article 1607 of the Civil Code in a sale with a
right to repurchase. These three remedies are
considered similar to declaratory relief
because they also result in the adjudication of
the legal rights of the litigants, often without
the need of execution to carry the judgment
into effect. To determine which court has
jurisdiction over the actions identified in the
second paragraph of Section 1, Rule 63 of the
Rules of Court, said provision must be read
together with those of the Judiciary
Reorganization Act of 1980, as amended.
(Malana v. Tappa, GR 181303, 17 September 2009)
Declaratory Relief - is defined as an action
by any person interested in a deed, will,
contract or other written instrument, executive
order or resolution, to determine any question
of construction or validity arising from the
instrument, executive order or regulation, or
statute, and for a declaration of his rights and
duties there under. The only issue that may be
2018
REMEDIAL LAW
PURPLE NOTES
raised in such a petition is the question of
construction or validity of the provisions in an
instrument or statute. (Ferrer vs. Roco, G.R. No.
174129, July 05, 2010)
PURPOSE:
To determine any question of construction or
validity arising from subject action issue, and
to seek for a declaration of petitioner‘s right
thereunder remedy (Sec.1, Rule 63; RIANO, Vol.
II, page 142)
An action for declaratory relief presupposes
that there has been no actual breach of the
instruments involved or of rights arising
thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative
statement of the rights and obligations of the
parties under a statute, deed, or contract for
their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues
arising from an alleged breach thereof, it may
be entertained only before the breach or
violation of the statute, deed, or contract to
which it refers. A petition for declaratory relief
gives a practical remedy for ending
controversies that have not reached the state
where another relief is immediately available;
and supplies the need for a form of action that
will set controversies at rest before they lead
to a repudiation of obligations, an invasion of
rights, and a commission of wrongs. Where
the law or contract has already been
contravened prior to the filing of an action for
declaratory relief, the courts can no longer
assume jurisdiction over the action. In other
words, a court has no more jurisdiction over
an action for declaratory relief if its subject
has already been infringed or transgressed
before the institution of the action. (Malana v.
Tappa, GR 181303, 17 September 2009)
5.C.1 Who May File The Action
Any person interested under a deed, will,
contract or other written instrument, (Sec. 1,
Rule 63).
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ARELLANO UNIVERSITY SCHOOL OF LAW
 If it be a statute, executive order,
regulation or ordinance, the petitioner is
one whose rights are affected by the same
(Sec. 1, Rule 63). The other parties are all
persons who have or claim any interest
which would be affected by the
declaration. The rights of person not made
parties to the action do not stand to be
prejudiced by the declaration (Sec. 2, Rule
63).
 All persons who have or claim any interest
which would be affected by the
declaration. (Sec. 2, Rule 63).
5.C.2. Requisites of an Action For
Declaratory Relief
 Subject matter is a deed, will, contract or
other written instrument, statute,
executive order or regulation, or
ordinance;
 There must be an actual justiciable
controversy or the ―ripening seeds‖ of one
between persons whose interests are
adverse;
 Terms of and validity of the said
documents are doubtful and require
judicial construction;
 The issue must be ripe for judicial
determination;
 Adequate relief is not available through
other means or other forms of action or
proceeding; and
 There must have been no breach of the
documents in question. (Almeda v. Bathala
Marketing Industries, Inc. G.R. No. 150806,
January 28, 2008)
The subject matter in a petition for
declaratory relief is any of the following:
 A deed;
 A will;
 A contract or other written instrument;
 A statute;
 An executive order or regulation;
 An ordinance; or
 Any other governmental regulation (Sec. 1,
Rule 63, Rules of Court)
 The enumeration of the subject matter is
exclusive. Any other matter not mentioned
therein is deemed excluded. This is under
178 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
the principle of expressio unius est
exclussio alterius. (Reyes v. Ortiz, G.R. No.
137794 : August 11, 2010)
Where refusal to grant declaratory relief
justified:
a) The decision will not terminate the
controversy or uncertainty giving rise to
the action; or
b) The declaration is not necessary and
proper under the circumstances.
5.C.3. When Court May Refuse to Make
Judicial Declaration.
 Declaration of Citizenship and Registration
Certificate – unilateral in nature and
without conflicting adverse interest.
 Court Decisions – There are other existing
remedies in connection therewith such as
an appeal or motion for clarificatory
judgment.
 Where a law or contract has already been
contravened prior to the filing of an action
for declaratory relief, the court can no
longer assume jurisdiction over the action
(Tambunting Jr. vs. Sumabat, 470 SCRA 92)
5.C.4. Conversion into Ordinary Action
If at the commencement of the action, there is
no breach or violation of documents, but
before the final termination of the case, a
breach or violation of the documents would
take place, the action for declaratory relief
may thereupon be converted into an ordinary
civil action, and the parties shall be allowed to
file such pleadings as maybe necessary or
proper. (Rule 63, Sec. 6)
Conversion to ordinary action is proper if filing
of petition for declaratory relief but before
rendition of judgment, a breach or violation of
the instrument or statute occurs.
5.C.5. Proceedings Considered as Similar
Remedies
ORDINARY ACTION AND DECLARATORY
RELIEF DISTINGUISHED
Ordinary Action Declaratory Relief
Writ of execution is
No writ of execution.
available.
 2018
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PURPLE NOTES

Ordinary Action Declaratory Relief reflect their true agreement by reason of

There is breach or No breach or violation of mistake, fraud, inequitable conduct or
violation of right. right. accident. The action is brought so the true
Additional ground for intention of the parties may be expressed in
dismissal: the instrument.
Rule 63, Sec. 5- By
motion or motu proprio,
The consent of a party to a contract has been
court may refuse to
declare rights and procured by fraud, inequitable conduct or
Grounds and manner accident, and an instrument was executed by
construe instruments if
of dismissal are the parties in accordance with the contract,
the decision would not
governed by Rules 16
terminate the what is defective is the contract itself because
and 17.
uncertainty or of vitiation of consent. The remedy is not to
controversy which gave bring an action for reformation of the
rise to the action; or if it instrument but to file an action for annulment
is not necessary and of the contract (Art. 1359, CC).
proper under the
circumstances.
Requisites
 The concept of a cause of action as ―an
 For an action for reformation OF
act or omission by which a person violates
INSTRUMENT to prosper, the following
the rights of another‖ under ordinary civil
requisites must concur: (1) there must
action does not apply in declaratory relief;
have been a meeting of the minds of the
there must be no breach or violation of
parties to the contract; (2) the instrument
the instrument or statute involved.
does not express the true intention of the
 A third-party complaint is improper when
parties; and (3) the failure of the
the main case is a special civil action for
instrument to express the true intention of
declaratory relief.
the parties is due to mistake, fraud,
 Compulsory counterclaim based on or
inequitable conduct or accident. (Emilio vs.
arising from the same transaction, deed or
Rapal, G.R. No. 181855, March 30, 2010)
contract or which petition is based may be
filed and entertained in a Declaratory
Reformation of the instrument cannot be
Relief.
brought to reform any of the following:
Actions similar to declaratory relief
a. Simple donation inter vivos wherein no
condition is imposed;
5.C.5.A. Reformation of an Instrument
b. Wills; or
c. When the agreement is void (Art. 1666,
It is not an action brought to reform a
CC).
contract but to reform the instrument
evidencing the contract. The action for
Jurisdiction
reformation presupposes that there is nothing
wrong with the contract itself because there is
GENERAL RULE –filed in appropriate RTC
a meeting of minds between the parties (Art.
(Sec.1, Rule 63)
1359, Civil Code of the Philippines) A contract
does not refer to a deed or an instrument but
For ACTION FOR REFORMATION OF
to a meeting of the minds of the parties.
INSTRUMENT, if it pertains to issue other than
recovery of money, it is incapable of pecuniary
The instrument is to be reformed because
estimation (RIANO, Vol. II, page 152).
despite the meeting of the minds of the
parties as to the object and cause of the
5.C.5.B. Consolidation of Ownership
contract, the instrument which is supposed to
embody the agreement of the parties does not

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The concept of consolidation of ownership
under Art. 1607 of the Civil Code has its
origins in substantive provisions of the law on
sales.
Modes of Extinguishment
1. Legal redemption(Retracto legal) is a
statutory mandated redemption of a
property previously sold. For instance, a
co-owner of a property may exercise the
right of redemption in case the shares of
all the other co-owners or any of them are
sold to a third person (Art. 1620). The
owners of adjoining lands shall have the
right of redemption when a piece of rural
land with a size of one hectare or less is
alienated (Art. 1621).
2. Conventional redemption (Pacto de retro)
is one that is not mandated by the statute
but one which takes place because of the
stipulation of the parties to the sale.
Period of redemption
a. May be fixed by the parties in which
case the period cannot exceed ten (10)
years from the date of the contract.
b. In the absence of any agreement, the
redemption period shall be four (4)
years from the date of the contract (Art.
1606).
Redemption not made within agreed
period and subject-matter is a REAL
PROPERTY
Art. 1607 provides that the consolidation
of ownership in the vendee shall not be
recorded in the Registry of Property
without a judicial order, after the vendor
has been duly heard.
Purpose:
 The action brought to consolidate
ownership is not for the purpose of
consolidating the ownership of the
property in the person of the vendee or
buyer but for the registration of the
property. The lapse of the redemption
period without the seller a retro exercising
his right of redemption consolidates
180 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
ownership or title upon the person of the
vendee by operation of law. Art. 1607
requires the filing of the petition to
consolidate ownership because the law
precludes the registration of the
consolidated title without judicial order
(Cruz vs. Leis, 327 SCRA 570).
Jurisidction
GENERAL RULE – filed in appropriate RTC
(Sec.1, Rule 63) as it is incapable of pecuniary
estimation.
For ACTION FOR CONSOLIDATION OF
OWNERSHIP, assessed value shall not be
considered because it does not involve
recovery of title to, or ownership of rela
property. The action is brought merely to
obtain judicial order to effect registration and
not aquire ownership thereof. It is NOT a
REAL ACTION. (RIANO, Vol. II, page 152).
5.C.5.C. Quieting of Title to Real
Property
It is an action brought to remove a cloud on
title to real property or any interest therein.
It is characterized as a proceeding QUASI IN
REM and judgement on such proceedings is
conclusive only between the parties (RIANO,
Vol.II, page 173).
The action contemplates a situation where an
instrument or a record is apparently valid or
effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and
may be prejudicial to said title to real property.
This action is then brought to remove a cloud
on title to real property or any interest therein.
It may also be brought as a preventive
remedy to prevent a cloud from being cast
upon title to real property or any interest
therein (Art. 476, Civil Code of the Philippines).
The plaintiff need not be in possession of the
real property before he may bring the action
as long as he can show that he has a legal or
an equitable title to the property which is the
subject matter of the action (Art. 477, Civil Code
of the Philippines).
 2018
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PURPLE NOTES

Requisites for quieting title:  Sec. 7, Art. IX-A of the Constitution

1. Plaintiff or complainant has a legal or
equitable title or interest in the real
property subject of action; and
2. The deed, claim, encumbrance, or
proceeding deemed casting cloud on his
ttile must be shown to be, in fact, invalid,
or inoperative despite prima facie
appearance of validity or legal efficacy
(RIANO, Vol. II, page 172-173)
Jurisdiction
Exception to The General Rule
 Assessed value of real property is
considered in determining jurisdiction
reads, ―unless otherwise provided by
the Constitution or by law, any
decision, order or ruling of each
commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within 30 days from
receipt of a copy thereof.‖ The
provision was interpreted by the
Supreme Court to refer to certiorari
under Rule 65 and not appeal by
certiorari under Rule 45 (Aratuc vs.
COMELEC, 88 SCRA 251; Dario vs. Mison,
176 SCRA 84). To implement the above
constitutional provision, the SC
promulgated Rule 64.
5.D.2. Distinction in The Application of
Rule 65 to Judgments of The COMELEC
and COA And The Application of Rule 65
to Other Tribunals, Persons, and Officers

Based on jurisdictional amount (Riano, Vol II RULE 64 RULE 65

and BP 129, Sec. 33): Directed only to the Directed to any
judgments, final orders tribunal, board or
MTC: or resolutions of the officers exercising
COMELEC and COA. judicial or quasi-
Personal property Value judicial functions.

 NOT EXCEED P300,000 (outside Metro Directed against an

Manila) interlocutory order
or final
 NOT EXCEED P 400,000 (within Metro
order/judgement
Manila) Filed within 30 days Filed within 60 days
from notice of the from notice of the
Real Propery value judgment. judgment.
The filing of a motion for The period within
 NOT EXCEED P 20,000 (outside Metro reconsideration or a which to file the
Manila) motion for new trial, if petition, if the
 NOT EXCEED P 50,000 (within Metro allowed, interrupts the motion for
Manila) period for the filing of reconsideration or
the petition for certiorari. new trial is denied, is
RTC
If the motion is denied, 60 days from notice
the aggrieved party may of the denial of the
Personal or Real Property Value - EXCEEDS the file the petition within motion.
value wihin jurisdiction of MTC the remaining period,
but which shall not be
5.D. REVIEW OF JUDGMENTS AND FINAL less than 5 days
ORDERS OR RESOLUTIONS OF THE reckoned from the notice
COMELEC AND COA of denial.

5.D.1. Application of Rule 65 under Rule Scope of Rule 64: (JFR)

64

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ARELLANO UNIVERSITY SCHOOL OF LAW
Govern the review of judgments and final
orders (not interlocutory orders) or resolutions
of the COMELEC or COA (Sec.1, Rule 64; RIANO,
Vol. II, page 175).
Jurisdiction: Supreme Court by Certiorari
under Rule 65 (Sec. 2, Rule 64)
When to file:Within 30 days from
notice of the JFR sought to be
reviewed (Sec. 3, Rule 64). .
Effect of fling of a motion for new trial or
reconsideration if allowed
Interrupt the period fixed.
Motion DENIED: Petition may be filed within
the remaining period, but which shall not be
less than 5 days in any event, reckoned from
notice of denial (Sec. 3, Rule 64).
Who are the parties
PETITONER: Aggrieved party.
RESPONDENTS: Commission concerned as the
and the person or persons interested in
sustaining the judgment, final order or
resolution a quo (Sec. 5, Rule 64).
Form And Contents Of Petition
Petition must be:
1. Verified;
2. Filed in 18 legible copies
3. Must contain the following:
a. Facts stated with certainty and Issues
presented clearly
b. Grounds and brief arguments relied
upon review
c. Acompanied by clearly legible
duplicate original or certified true copy
of JFR, together with certified true
copies of such material portions of the
record as are referred to therein and
other documents relevant and
pertinent thereto.
d. Specific material dates showing that it
was filed within the fixed period
e. Accompanied by proof of service of
copy to Commission concerned and
182 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
adverse party, and timely payment pf
docket and other fees
f. Sworn Certification against forum
shopping
g. Prayer for judgement annulling or
modifiying the questioned JFR (Sec. 5,
Rule 64).
Grounds for Dismissal
The failure of petitioner to comply with any of
the foregoing requirements in Sec. 5 Rule 64.
Option of Court Upon Receipt of Petition
1. Deny petition outright
If Petition is:
 not sufficient in form and substance;
 flied manifestly for delay
 raises question that is too
unsubstantial to warrant further
proceedings (Sec.6, Rule 64)
2. Order the filing of comment
Comment shall be:
 Filed within 10 days from notice
(Sec.6, Rule 64)
 Filed in 18 legible copies (Sec.6, Rule
64)
 Original comment must be
accompanied by CTC of material
portions of records referred to
together with other supporting papers
(Sec.6, Rule 64)
 Served to petitioner (copy of
comment) (Sec.7, Rule 64)
General Rule: No other pleading may be
filed.
Exception: if required or allowed by court
(Sec.6, Rule 64)
5.E. CERTIORARI, PROHIBITION AND
MANDAMUS
5.E.1. Definitions And Distinctions

A petition for certiorari under Rule 65 is a
special civil action. It is not a mode of appeal.
It is an original action independent from the
principal action which resulted in the rendition
of the judgment or order complained of.
Certiorari - is a remedy for the correction of
errors of jurisdiction, not errors of judgment.
It is an original and independent action that
was not part of the trial that had resulted in
the rendition of the judgment or order
complained of. More importantly, since the
issue is jurisdiction, an original action for
certiorari may be directed against an
interlocutory order of the lower court prior to
an appeal from the judgment.
Note: Petitions for certiorari, prohibition and
mandamus are not available under the Rules
on Summary Procedure (Sec. 19, Rule on
Summary Procedure), in a petition for Writ of
Amparo (Sec. 11 of the Rule on Writ of Amparo)
and in a petition for a writ of habeas data
(Sec. 13, Rule on the Writ of Habeas Data).
Certiorari
A writ issued by the superior court to the
inferior court, board or officer exercising
judicial or quasi-judicial functions whereby the
record of a particular case is ordered to be
elevated for review and correction in matters
of law.
Writ of Certiorari – is a prerogative writ,
never demandable as a matter of right, never
issued except in the exercise of jurisdiction
(Nuque v. Aquino, GR No 193058, July 8,
2015).
Purpose of Certiorari
To correct errors of jurisdiction, which includes
commission of grave abuse of discretion
amounting to lack of jurisdiction (RIANO, Vol.
II, page 183).
To annul, modify the judgement, resolution or
proceeding of public respondent (Sec.1, Rule
65).
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Prohibition
Is a legal remedy, provided by common law,
available only when the usual and ordinary
proceedings at law or in equity are inadequate
to afford redress, prerogative in character to
the extent that it is not always demandable as
a right, to prevent courts or other tribunals,
officers or persons, from usurping or
exercising a jurisdiction with which they have
not been vested by law.
Is an ORIGINAL and INDEPENDENTT ACTION
and not merely continuation or part of trial
resulting in redition of judgment or order
complained therof.
Since it is an ORIGINAL ACTION, decisions
renered therefor are APPEALABLE (RIANO, Vol.
II, page 242)
Prohibition may issue enjoining the judge of
court of improper venue from taking
cognizance of the case (Feria Noche. Civil
Procedure Annotated, Volume 2. 2001 Edition.
Page 482).
PURPOSE: To command the respondent to
desist from further proceeding (Sec.2, Rule 65)
Mandamus
A command issuing from a court of law of
competent jurisdiction, in the name of the
state or sovereign, directed to some inferior
court, tribunal, or board, or some corporation
or person, requiring the performance of a
particular duty therein specified, which duty
results from the official station of the party to
whom the writ is directed or from operation of
law.
Instances where there is no appeal
1) Law does not provide for an appeal:
a) Not appealable
b) No provision for an appeal e.g., Labor
Code
c) Interlocutory order
2) The right to appeal having been lost with
or without the appellant‘s negligence
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Purpose of mandamus may be granted for allowed;

justifiable reasons
Does not require a Motion for
To compel the performance, when refused, of
prior motion for Reconsideration is a
a ministerial duty, this being its main reconsideration; condition precedent,
objective. It does not require anyone to fulfill subject to exceptions
a contractual obligation or to compel a course Stays the judgment Does not stay the
of conduct, nor to control or review the appealed from; judgment or order
exercise of discretion. subject of the petition
unless enjoined or
5.E.1.A. Certiorari as Distinguished From restrained;
Appeal by Certiorari Parties are the original The tribunal, board,
parties with the officer exercising
appealing party as the judicial or quasi-judicial
Certiorari vs. Appeal by Certiorari petitioner and the functions is impleaded
adverse party as the as respondent
CERTIORARI AS A respondent without
CERTIORARI AS A
SPECIAL CIVIL impleading the lower
MODE OF APPEAL
ACTION court or its judge;
Filed with only the May be filed with the
Called petition for A special civil action Supreme Court Supreme Court, Court
review on certiorari, is that is an original of Appeals,
a mode of appeal, action and not a mode Sandiganbayan, or
which is but a of appeal, and not a Regional Trial Court
continuation of the part of the appellate SC may deny the
appellate process over process but an decision motu propio
the original case; independent action. on the ground that the
Seeks to review final May be directed against appeal is without
judgments or final an interlocutory order merit, or is prosecuted
orders; of the court or where manifestly for delay, or
not appeal or plain or that the questions
speedy remedy raised therein are too
available in the unsubstantial to
ordinary course of law require consideration.
Raises only questions Raises questions of
of law; jurisdiction because a
Note: The remedies of appeal and certiorari
tribunal, board or
officer exercising
are mutually exclusive and not alternative or
judicial or quasi-judicial successive. The antithetic character of appeal
functions has acted and certiorari has been generally recognized
without jurisdiction or and observed save only on those rare
in excess of jurisdiction instances when appeal is satisfactorily shown
or with grave abuse of to be an inadequate remedy. Thus, a
discretion amounting to petitioner must show valid reasons why the
lack of jurisdiction; issues raised in his petition for certiorari could
Filed within 15 days Filed not later than 60
not have been raised on appeal (Banco Filipino
from notice of days from notice of
Savings and Mortgage Bank vs. CA, 334 SCRA 305).
judgment or final order judgment, order or
appealed from, or of resolution sought to be
the denial of assailed and in case a 5.E.1.A. Prohibition and Mandamus as
petitioner‘s motion for motion for Distinguished From Injunction
reconsideration or new reconsideration or new
trial; trial is timely filed, PROHIBITION MANDAMUS INJUNCTION
whether such motion is Prohibition is an Mandamus is an Main action
required or not, the 60 extraordinary extraordinary for injunction
day period is counted writ writ seeks to
from notice of denial of commanding a commanding a enjoin the
said motion; tribunal, tribunal, defendant
Extension of 30 days Extension no longer corporation, corporation, from the

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PROHIBITION MANDAMUS INJUNCTION PROHIBITION MANDAMUS INJUNCTION

board or person, board or person, commission judicial, or
whether to do an act or ministerial
exercising required to be continuance functions
judicial, quasi- done: of a specific Extends to Extends only to Does not
judicial or (a) When act, or to discretionary ministerial necessarily
ministerial he unlawfully compel a functions functions extend to
functions, to neglects the particular act ministerial,
desist from performance of in violation of discretionary
further an act which the the rights of or legal
proceedings law specifically the applicant. functions;
when said enjoins as a Preliminary Always the main Always the main May be the
proceedings are duty, and there injunction is action action main action
without or in is no other a provisional or just a
excess of its plain, speedy remedy to provisional
jurisdiction, or and adequate preserve the remedy
with grave remedy in the status quo May be brought May be brought May be
abuse of its ordinary course and prevent in the Supreme in the Supreme brought in
discretion, there of law; or future Court, Court of Court, Court of the Regional
being no appeal (b) When wrongs in Appeals, Appeals, Trial Court
or any other one unlawfully order to Sandiganbayan, Sandiganbayan, which has
plain, speedy excludes preserve and or in the or in the jurisdiction
and adequate another from protect Regional Trial Regional Trial over the
remedy in the the use and certain Court which has Court which has territorial
ordinary course enjoyment of a interests or jurisdiction over jurisdiction over area where
of law (Sec. 2, right or office to rights during the territorial the territorial respondent
Rule 65). which the other the pendency area where area where resides.
is entitled (Sec. of an action. respondent respondent
3, Rule 65). resides. resides.
Special civil Special civil
Ordinary civil
action action action
To prevent an To compel the For the
encroachment, performance of defendant
excess, a ministerial and
either to
usurpation or legal duty; refrain from
assumption of an act or to
jurisdiction; perform not
necessarily a
legal and
ministerial
duty;
May be directed May be directed Directed
against entities against judicial against a
exercising and non-judicial party
judicial or quasi- entities

Petition for Review on Certiorari Petition for Certiorari Under Rule

Under Rule 45 (Mode of Appeal)
Called Petition for Review on Certiorari, is a
mode of appeal, which is but a
Nature
continuation of the appellate process over
the original case.
Pure questions of law.
Basis
Involves the review of judgment, award, or
What it Involves
final order on the merits.
65 (Original Action)
A special civil action that is an original
action and not a mode of appeal, and not a
part of the appellate process but an
independent action.
Whether the lower court acted without or
in excess of jurisdiction or with grave abuse
of discretion.
May be directed against an interlocutory
order prior to appeal or where there is no

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Petition for Review on Certiorari Petition for Certiorari Under Rule

Under Rule 45 (Mode of Appeal)
Petitioner and respondent are original
Parties parties to the action and the lower court is
not impleaded.
Only with the S.C..
Where to File
Must be filed within 15 days from notice of
judgment or final order or resolution or of
the denial of motion for new trial or
reconsideration.
Period for Filing
S.C. may grant an extension of 30 days.
It stays the judgment, award, or order.
Effect
65 (Original Action)
appeal or any other plain, speedy or
adequate remedy.
The aggrieved party and the lower court
are the parties to the action or against the
quasi-judicial agency.
RTC, Sandiganbayan, C.A. or S.C..
In election cases involving an act or
omission of a MTC or a RTC the petition
shall be filed exclusively with the COMELEC,
in aid of its appellate jurisdiction (A.M. No.
07-7-12-SC, December 27, 2007)
Must be filed not later than 60 days from
notice of judgment/denial of MR.
No extension of time to file petition under
this rule. (A.M. No. 07-7-12-SC, 27 Dec
2007, amended Sec. 4 of Rule 65 and
deleted the provision granting 15 days
extension for compelling reasons.)
It does not stay the challenged proceeding
unless a writ of preliminary or temporary
restraining order shall have been issued.

Filing of a Motion Prior filing of a motion for reconsideration A motion for reconsideration is, generally, a
for is not required. condition precedent.
Reconsideration
Appellate jurisdiction from the C.A., Concurrent original jurisdiction with the
Sandiganbayan, CTA, RTC and other courts. RTC, C.A. and the S.C. and exclusive
Jurisdiction of
original jurisdiction of S.C. as to judgment,
the SC
final order or resolution of COMELEC and
COA.

Prohibition vs Certiorari (Riano, Vol II) respondent.

PROHIBITION CERTIORARI
Directed NOT only to Directed only to
respondent exercising respondent exercising 5.E.2. Requisites
judicial or quasi- judicial or quasi-
judicial functions but judicial functions A) Requisites for certiorari
even against one 1. There must be a controversy;
exercising 2. Respondent is exercising judicial or
MINISTERIAL quasi-judicial functions;
FUCNTIONS 3. Respondents acted without or in
excess of its jurisdiction or acted with
Directed AGAINST the Directed AGAINST the grave abuse of discretion; and
TRIBUNAL ITSELF ACTION of COURT 4. There must be no appeal or other
commanding it to which is sough to be plain, speedy and adequate remedy.
desist from further annulled.
proceeding.  Certiorari lies against an order granting
PURPOSE is To PURPOSE is To annul execution pending appeal when the same
command the or modify the is founded. The fact that the losing party
respondent to desist judgement, order, or had also appealed from the judgment
from further resolution or does not bar the certiorari proceedings, as
proceeding proceeding of public the appeal could not be an adequate

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remedy from such premature condition 4. The duty or act to be performed must
(Manocop, et al. vs. Equitable PCIB, et al., G.R. be EXISTING – a correlative right will
No. 162814-17, August 25, 2005). be denied if not performed by the
respondents; and
Note: Where the error is not one of 5. No appeal or other plain, speedy and
jurisdiction, but of law or fact which is a adequate remedy in the ordinary
mistake of judgment, the proper remedy course of law. Preliminary Injunction
should be appeal. Hence, if there was no must be sought.
question of jurisdiction involved in the decision
5.E.3. When Petition For Certiorari,
and what was being questioned was merely
Prohibition and Mandamus is Proper
the findings in the decision of whether or not
the practice of the other party constitutes a Mandamus not resorted to compel a
violation of the agreement, the matter is a Discretionary Duty:
proper subject of appeal and not certiorari.
(Centro Escolar University Faculty and Allied Mandamus is applicable only to a ministerial
Workers Union vs. CA, G.R. No. 165486, May 31, duty. HOWEVER, it can be used to the extent
2006). of requiring the performance of a discretionary
duty to act but not to require performance of
B) Requisites for prohibition such duty in a particular manner.
1. The petition is directed against a
tribunal, corporation, board or person Contractual obligations are not
exercising judicial, quasi-judicial, or compellable by mandamus.
ministerial functions;
2. The tribunal, corporation, board or It is not intended to aid a plaintiff in the
person must have acted without or in performance of a mere contract right, or to
excess of jurisdiction or with grave take place of other remedies provided by law
abuse of discretion amounting to lack for the adjudication of disputed claims (Manalo
v. PAIC Savings Bank, 453 SCRA 747; RIANO, Vol.
of jurisdiction;
II, page 253).
3. There is no appeal or any plain,
speedy and adequate remedy in the
An original action for certiorari,
ordinary course of law;
prohibition, mandamus is an
4. Accompanied by a certified true copy
INDEPENDENT CIVIL ACTION and as
of the judgment or order subject of
such, it:
the petition, copies of all pleadings
 Does not interrupt the course of the
and documents relevant and pertinent
principal action.
thereto, and sworn certification of
 Does not affect the running of the period
non-forum shopping under Rule 46.
of the reglementary periods involved in
the proceedings.
C) Requisites of Mandamus:
 Does not stay the execution of the
1. There must be a clear legal right or
judgment, unless a temporary restraining
duty;
order or writ of preliminary injunction has
2. The act to be performed must be
been issued.
PRACTICAL – within the powers of the
respondent to perform such that if the
Exhaustion of Administrative Remedies
writ of mandamus was issued, he can
comply with it, or else its essence will
General Rule: Mandamus will not be issued
be defeated;
when administrative remedies are available.
3. The respondent must be exercising a
MINISTERIAL DUTY – a duty which is
Exceptions:
absolute and imperative and involves
 If party is in estoppel; and
merely its execution;

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 Pure questions of law are raised
Jurisdictional Issue - A petition for
certiorari must be based on jurisdictional
grounds because as long as the respondent
acted with jurisdiction, any error committed by
him or it in the exercise thereof will amount to
nothing more than an error of judgment which
may be reviewed or corrected by appeal.
(Microsoft vs. Best Deal, G.R. No. 148029, 24 Sept.
2002).
Grave abuse of discretion
 When the act was performed in capricious
or whimsical exercise of judgment which is
equivalent to lack of jurisdiction
The abuse of discretion must be so patent
and gross as to amount to an evasion of
positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act
at all in contemplation of law, as where
the power is exercised in an arbitrary and
despotic manner by reason of passion or
personal hostility.
Award Of Damages In Mandamus
Proceeding
Court of Appeals, can award damages in
Mandamus Proceedings (Vital-Gozon vs. CA, 212
SCRA 235)
A writ of certiorari cannot be issued by an RTC
against administrative agency exercising
quasi-judicial functions since the latter is of
the same rank as the RTC.
A writ of prohibition may be issued by the RTC
against administrative agencies only when
what is sought to be prohibited is a ministerial
function but not quasi-judicial function.
SANDIGANBAYAN may likewise issue writs of
certiorari, prohibition and mandamus only in
aid of its appellate jurisdiction.
“In Aid of its Appellate Jurisdiction” –
there exists a right to appeal the judgment on
the merits.
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5.E.4. 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
against the public respondent from further
proceeding in the case (Sec. 7).
The public respondent shall proceed with the
principal case within ten (10) days from the
filing of a petition for certiorari with a higher
court or tribunal, absent a Temporary
Restraining Order (TRO) or a Writ of
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 (AM 07-7-12-SC, Dec. 12,
2007).
No plain, speedy and adequate remedy
General Rule: A motion for reconsideration is
an essential precondition for the filing of a
petition for certiorari, prohibition, mandamus
before invoking the jurisdiction of higher
courts.
5.E.5. Exceptions to filing of motion for
reconsideration before filing petition
 Where the order is a patent nullity, as
where the court a quo has no jurisdiction;
 When the questions raised in the certiorari
proceeding, have been duly raised and
passed by the lower court, or are the
same as those raised and passed upon in
the lower court;
 Where there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
government or of the petitioner;
 Where the subject matter of the action is
perishable;
 Where under the circumstances, a motion
for reconsideration would be useless;
 Where petitioner was deprived of due
process and there is extreme urgency for
relief;

 Where in a criminal case, relief from order
of arrest is urgent and the granting of
such relief by the trial court is improbable;
 Where the proceedings in the lower court
are a nullity for lack of due process;
 Where the proceedings was ex parte or in
which the petitioner had no opportunity to
object; and
 Where the issue raised is one purely of
law or where public interest is involved.
Effect of Filing of Motion for
Reconsideration:
 If a motion for reconsideration is filed, the
period shall not only be interrupted but
another 60 days shall be given to the
petitioner within which to file the
appropriate petition for certiorari or
prohibition with the superior court.
(Supreme Court Administrative Circular 02-03)
Remedies of Appeal and Certiorari are
exclusive
General Rule: Where the proper remedy is
appeal, the action for certiorari will not be
entertained. Certiorari is not a remedy for
error of judgment. Error of judgment are
correctible by appeal, error of jurisdiction are
reviewable by certiorari. The original action
for certiorari is not a substitute for appeal,
especially when the remedy of appeal was lost
through the fault of the party.
Exception: Even when appeal is available, a
writ of certiorari may be allowed:
a. When appeal does not constitute a speedy
and adequate remedy;
b. When orders were issued whether in
excess of or without jurisdiction;
c. For certain special considerations such as
for public policy or public welfare;
d. When the order is a patent nullity;
e. When the decision in the certiorari case
will avoid future litigation.
Material Date Rule
Dates that must be contained in the
petition:
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 Date of receipt of the copy of the assailed
decision, order or resolution.
 Date when Motion for Reconsideration or
Motion for New Trial was filed.
 Date of receipt of the denial of said
Motion.
“Adequate Remedy” – A remedy which is
equally beneficial, speedy and sufficient, not
merely a remedy which at some time in the
future will bring about a revival of judgment of
the lower court complained of in the Certiorari
proceeding, but a remedy which will promptly
relieve the petitioner from the injurious effects
of that judgment and the acts of the inferior
court or tribunal (Pioneer Insurance Surety Corp.
vs. Hontanosas, 78 SCRA 466).
5.E.6. Reliefs petitioner is entitled to:
The primary relief will be annulment or
modification of the judgment, order or
resolution or proceeding subject of the
petition. It may also include such other
incidental reliefs as law and justice may
require (Sec. 1).The court, in its judgment may
also award damages and the execution of the
award for damages or costs shall follow the
procedure in Sec. 1, Rule 39 (Sec. 9).
5.E.7. Actions/Omissions of MTC/RTC in
Election Cases; Where to File Petition
Subject to the doctrine of hierarchy
of courts and only when compelling
SC
reasons exist for not filing the same
with the lower courts
If the petition relates to an act or
RTC an omission of an MTC, corporation,
board, officer or person
If the petition involves an act or an
omission of a quasi-judicial agency,
CA
unless otherwise provided by law or
rules
Whether or not in aid of appellate
CA or SB
jurisdiction
In election cases involving an act or
COMELEC an omission of an MTC or RTC
As amended by AM No. 07-7-12-SC, December 12,
2007
5.E.8. When and Where to File Petition
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 Court of Appeals, whether or not the same  Sandiganbayan, whether or not in

is in aid of its appellate jurisdiction; aid of its appellate jurisdiction;
 Sandiganbayan, whether or not in aid of  RTC
its appellate jurisdiction;
 RTC, if it relates to the acts or omission of B. If it involves acts or omissions of a quasi-
a Municipal Trial Court, a corporation, judicial agency
board officer or person;
 If it involves acts or omissions of a quasi- GENERAL RULE: Court of Appeals
judicial agency, and unless otherwise
provided by law or the rules, the petition EXCEPTION: Unless otherwise provided
shall be filed in and cognizable only by the by law or the rules
CA;
 In election case involving an act or C. In election case involving an act or
omission of MTC/RTC, it shall be filed omission of MTC/RTC
exclusively with the COMELEC, in aid of its
appellate jurisdiction.  exclusively with the COMELEC, in aid
of its appellate jurisdiction
When: Petition must be filed within 60 days
from notice of judgement, order or resolution 5.E.9. Effects of filing of an
(Sec. 4, Rule 65) unmeritorious petition

Where to File: The Court may impose motu propio, based on

res ipsa loquitur, other disciplinary sanctions
A. If it relates to the acts or omission of: or measures on erring lawyers for patently
1. Municipal Trial Court, dilatory an unmeritorious petition for certiorari
2. corporation, (AM 07-7-12-SC, Dec. 12, 2007). The court may
3. board, dismiss the petition if it finds the same
patently without merit or prosecuted
4. officer or
manifestly for delay, or if the questions raised
5. person (MCBOP) therein are too unsubstantial to require
consideration. In such event, the court may
award in favor of the respondent treble costs
File either in: solidarily against the petitioner and counsel, in
addition to subjecting counsel to
 Court of Appeals, whether or not administrative sanctions under Rules 139 and
the same is in aid of its appellate 139-B.
jurisdiction;

CERTIORARI PROHIBITION MANDAMUS

1. Without jurisdiction; 1. Without jurisdiction; 1. Neglects the
2. Excess of jurisdiction; 2. Excess of jurisdiction; performance of an
3. Grave abuse of jurisdiction. 3. Grave abuse of act (a ministerial
Grounds jurisdiction. duty)
2. Excludes another
from use and
enjoyment of right
or office
1. Tribunal; 1. Tribunal; 1. Tribunal;
2. Board; 2. Board; 2. Board;
Respondent 3. Officer. 3. Officer; 3. Officer;
4. Corporation; 4. Corporation;
5. Person. 5. Person.

Function 1. Judicial 1. Judicial 1. Judicial

2. Quasi-judicial 2. Quasi-judicial 2. Quasi-judicial

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3. Ministerial duty 3. Ministerial duty

No appeal or plain, speedy or No appeal or plain, No appeal or plain,

Condition
adequate remedy. speedy or adequate speedy or adequate
remedy. remedy.
Original copy of judgment, Original copy of Original copy of
Requirement certification of non-forum-shopping judgment, certification of judgment, certification
Payment of docket fees non-forum-shopping of non-forum-shopping
Payment of docket fees Payment of docket fees
Corrective – To correct usurpation Preventive and negative – Affirmative or Positive (If
of jurisdiction. To restrain or prevent the performance of a
Nature of the usurpation of jurisdiction. duty is ordered) or it is
Remedy negative (if a person is
ordered to desist from
excluding another from a
right or office)
1. Annulment or 1. Desistance 1. To do the act
2. Modification of judgment or 2. Equitable relief required to be done
order to protect the rights
Relief 3. Equitable relief of the petitioner
(prayer) 2. To pay the damages
sustained by the
petitioner by reason
of the wrongful acts
of the respondents.

5.F. QUO WARRANTO Quo Warranto in

Quo Warranto
Electoral
(Rule 66)
Quo Warranto literally means “by what Proceedings
authority” and is a proceeding or writ issued person who claims
better title to the
by the court to determine the right to use an
position, public office
office, position or franchise and to oust the or franchise being
person holding or exercising such office, usurped, intruded into
position, or franchise if his right is unfounded or unlawfully held.
or if a person performed acts considered as An electoral proceeding Three grounds:
grounds for forfeiture of said exercise of under the Omnibus Usurpation;
position, office or franchise. (Tecson vs. Elections Code for the Forfeiture; and
COMELEC, G.R. No. 161434, March 03, 2004) exclusive purpose of Illegal association
impugning the election
An action for the usurpation of a public (a) of a public officer on
office, (b) position, or (c) franchise (Sec.1, Rule the ground of
ineligibility or
66; RIANO, Vol. II, page 269).
disqualification to hold
the office, or disloyalty
5.F.1. Quo warranto under Rule 66 to Republic.
Distinguished from Quo Warranto under Petition must be filed Presupposes that the
the Omnibus Election Code within 10 days after the respondent is already
proclamation of the actually holding office
Quo Warranto in candidate. and action must be
Quo Warranto
Electoral commenced within one
(Rule 66)
Proceedings year from cause of
To contest the right of Prerogative writ which ouster or right of
an elected public officer can be brought by the petitioner to hold office
to hold public office. Solicitor General or any arose

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Quo Warranto in
Electoral
Proceedings
May be filed by any
registered voter for the
same office and, who,
even if the petition
prospers, would not be
entitled to that office.
Actual or compensatory
damages are
recoverable in quo
warranto under the
Omnibus Election Code.
Petition is brought in
the COMELEC, RTC or
MTc, as the case may
be (Sec. 253, Omnibus
Election Code)
If the person elected is
ineligible, the court
cannot declare that the
candidate occupying the
scond place as elected
Subject of the Petition:
An Elective Office
Grounds: (1) ineligibility
to the position; or (2)
disloyalty to the
Republic.
Petitioner may be any
voter even if he is not
entitled to the office.
When the tribunal
declares the candidate-
elect as ineligible, he
will be unseated but the
person occupying the
second place will not be
declared as the one
duly elected because
the law shall consider
only the person who,
having duly filed his
certificate of candidacy,
received a plurality of
votes.
Who May Commence Action:
The petition can be commenced by the:
a. Solicitor General, or
b. Public prosecutor (Sec.1, Rule 66) or
c. Private person (Sec. 5, Rule 66)
How is Action Commenced
192 CENTER FOR LEGAL EDUCATION AND RESEARCH
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Quo Warranto
Action is commenced by filing a VERIFIED
PETITION in the name of the Republic of the
(Rule 66)
The petitioner must be Philippines (Sec.1, Rule 66) or in some
the government or the instance, filed by an individual in his own
person entitled to the name if he claims he is entitled to a public
office and who would
assume the same if his office usurped or unlawfully held or exercised
action succeeds. by another (Sec.5, Rule 66).
Person adjudged
entitled to the office Grounds for quo warranto proceeding
may also bring an (Sec. 1, Rule 66)
action (separate)
against the respondent
An action for the usurpation of a public office,
to recover damages.
position or franchise may be commenced by a
Petition is brought in
the Supreme Court, verified petition brought in the name of the
Court of Appeals, or Republic of the Philippines against:
RTC (Sec. 7, Rule 66 of
ROC) a. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
The court determines office; position or franchise;
who is legally b. A public officer who does or suffers an act
appointed, and can which, by the provision of law constitutes
and ought to declare
a ground for forfeiture of his office; and
the person entitled to
occupy the office
c. An association which acts as a corporation
Subject of the Petition: within the Philippines without being legally
An Appointive Office incorporated or without lawful authority so
Issue is the legality of to act.
the occupancy of the
office by virtue of a Requirements in Filing Quo Warranto
legal appointment.
Petitioner is the person a. Legal basis, that is entitlement to the
entitled to the office. office;
b. Must have claim to the office.
The court has to
declare who the
person entitled to the  Jurisdiction is with the RTC, CA or SC.
office is if he is the  Venue is provided for by law; where
petitioner. the respondent or any of the
respondents reside.
 If action was initiated by the OSG,
venue is the City of Manila.
 The court has the discretion to reduce
the period for filing of the pleadings.
 Actions of quo warranto against
corporations with regard to franchises
and rights granted to them as well as
their dissolution, covered under the
former Rule 66 now fall under the
jurisdiction of SEC and are governed
by its Rules.
 However, cases involving intra-
corporate disputes and elections of
directors and officers likewise covered
under the former Rule 66, have now

been transferred to the jurisdiction of
the RTC (Securities Regulation Code, Sec
5.2).
Note: Where the action is filed by a private
person, he must prove that he is entitled to
the controverted position; otherwise
respondent has a right to the undisturbed
possession of the office. If the court finds for
the respondent, the judgment should simply
state that the respondent is entitled to the
office. If, however, the court finds for the
petitioner and declares the respondent guilty
of usurping, intruding into, or unlawfully
holding or exercising the office, court may
order:
a. The ouster and exclusion of the defendant
from office;
b. The recovery of costs by plaintiff or
relator;
c. The determination of the respective rights
in and to the office, position, right,
privilege or franchise of all the parties to
the action as justice requires. (Mendoza
vs. Allas, G.R. No. 131977, February 4,
1999)
Classification of quo warranto
proceeding:
1) Mandatory – brought by the Solicitor
General or a public prosecutor, when:
a. Directed by the President; or
b. Upon the complaint or when he has
reason to believe that the cases for
quo warranto can be established by
proof.
2) Discretionary - brought by the Solicitor
General or a public prosecutor at the
request or upon the relation of another
person provided there must be:
a. With Leave of court;
b. Indemnity bond must be filed.
Relator – is a person at whose request and
upon whose relation the Solicitor General or
public prosecutor brings an action for quo
warranto with the permission of the court
under Secs. 3 and 4.
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Periods for filing quo warranto
proceeding and action for damages
arising therein:
Quo Warranto must be filed within ONE YEAR
from the cause of such ouster, or the unlawful
exclusion of the rightful claimant from the
office; or within one year when the right of
the petitioner to hold such office or position
arose EXCEPT when there was continued
assurance from the government, through its
responsible officers that lead the petitioners to
bide his time and wait for the fulfillment of its
commitment.
As for the damages, it must be filed within
one year from the date of entry of judgment
establishing the right under the quo warranto
proceeding.
The periods within which the quo warranto
action should be brought are conditions
precedent to the existence of a cause of
action.
5.F.2. When Can The Government
Commence an Action Against Individuals
When directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe that
any case specified in the preceding section
can be established by proof, must commence
such action (Sec.2, Rule 66).
5.F.3. When Can an Individual
commence an action
 The petition may be commenced by a
private person in his own name where he
claims to be entitled to the public office or
position alleged to have been usurped or
unlawfully held or exercised by another
(Sec. 5). Accordingly, the private person
may maintain the action without the
intervention of the Solicitor General and
without need for any leave of court
(Navarro vs. Gimenez, 10 Phil. 226; Cui vs. Cui,
60 Phil. 37). In bringing a petition for quo
warranto, he must show that he has a
clear right to the office allegedly being
held by another (Cuevas vs. Bacal, 347 SCRA
338). It is not enough that he merely
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asserts the right to be appointed to the
office.
 The one-year period is not interrupted by
the prosecution of any administrative
remedy. As in quo warranto proceeding,
no one is compelled to resort to
administrative remedies since public
interest requires that the right to public
office should be determined as speedily as
possible. (Palma-Fernandez vs. Dela Paz, 160
SCRA 751)
5.F.4. Judgment in Quo Warranto Action
When the respondent is found guilty of
usurping, 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 recover his costs. (Rule 66, Sec. 9)
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. 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. (Rule 66, Sec.10)
5.F.5. Rights of a Person Adjudged
Entitled to Public Office
After taking the oath of office and executing
any official bond required by law, the person
adjudged to be entitled has the right to:
1. Take upon himself the execution of the
office,
2. 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,
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NOTE:
If 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.
3. May also bring action against the
respondent to recover the damages (Sec.
10, Rule 66)
Period To Claim For Damages
Within ONE year after the entry of the
judgment establishing the petitioner's right to
the office in question (Sec. 11, Rule 66).
Quo Warranto Against Corporations
May only be brought against de facto
corporations.
Any inquiry about
a) Due incorporation of any corporation
claiming in good faith to be incorporated
under Corporation Code, and
b) its right to exercise corporate powers;
MUST be instituted in a quo warranto
proceeding by SOLICITOR GENERAL and not
collaterally in a private suit where corporation
is a party (Sec.20, Corporation Code; RIANO,
Vol. II, pages 279-280)
5.G. EXPROPRIATON
Eminent Domain is the right of the State to
acquire private property for public use upon
the payment of just compensation.
Expropriation is the procedure to be
observed in the exercise of the right of
eminent domain.
What Cannot be Expropriated:
a. Money; and
b. Chooses in action.
Nature of Expropriation Proceedings

 Expropriation proceedings are not
adversarial in the conventional sense, for
the condemning authority is not required
to assert any conflicting interest in the
property. Thus, by filing the action, the
condemnor in effect merely serves notice
that it is taking title and possession of the
property, and the defendant asserts title
or interest in the property, not to prove a
right to possession, but to prove a right to
compensation for the taking. (Apo Fruits
Corp.et al., vs. CA, G.R. No. 164195, December
04, 2009)
Who has the power to expropriate:
 State by its inherent power
 Government‘s instrumentalities. GOCC,
Local Government units (as delegated by
Local Government Code), and Other
agency as duly authorized by law.
Requirements in filing the complaint:
 The complaint must be verified.
 The defendant can only file an answer
instead of a motion to dismiss.
 The complaint shall join as defendants all
persons owning or claiming to own, or
occupying, any part of the land
expropriated. If a known owner is not
joined as defendant, he is entitled to
intervene in the proceedings or if he is
joined but not served with the process
and the proceeding is already closed
before he came to know of the
condemnation, he may maintain an
independent suit for damages.
Where to File Complaint
Complaint is filed in the RTC as the subject of
said suit is the State‘s exercise of eminent
domain, a matter incapable of pecuniary
estimation (San Roque vs. Heirs of Pastor, 334
SCRA 127, 134; RIANO, Vol. II, page 292).
Purpose of the Proceeding
To determine the authority of the government
entity, necessity of the expropriation, and
observance of process.
5.G.1. Matters To Allege in Complaint fo
Expropriation
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An expropriation proceeding is commenced by
the filing of a verified complaint which shall:
 State with certainty the right of the
plaintiff to expropriation and the purpose
thereof;
 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 of
the property or interest therein showing
as far as practicable the interest of each
defendant. If the plaintiff cannot with
accuracy identify the real owners,
averment to that effect must be made in
the complaint (Sec. 1, Rule 67)
Note: The commencement of a complaint for
expropriation is necessary only when the
owner does not agree to sell his property or if
he is willing to sell but does not agree with the
price offered.
5.G.2. Two Stages in Every Action For
Expropriation
 First Stage: Determination of the
authority of the plaintiff to expropriate –
this includes an inquiry into the propriety
of the expropriation, its necessity and the
public purpose. This stage will end in the
issuance of an order of expropriation if the
court finds for the plaintiff or in the
dismissal of the complaint if it finds
otherwise.
 Second Stage: Determination of just
compensation through the court-
appointed commissioners (National Power
Corporation vs. Joson, 206 SCRA 520).
5.G.3. When Plaintiff Can Immediately
Enter Into Possession of The Real
Property in Relation to R.A. No. 8974
An Act To Facilitate The Acquisition Of Right-
Of-Way, Site Or Location For National
Government Infrastructure Projects And For
Other Purposes
General Rule:
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Expropriator shall have the right to take or very clear (Republic vs Gingoyon, G.R. No.
enter upon the possession of the real property 166429, December 19, 2005)
involved if he deposits with the authorized
government depositary an amount equivalent RA 8974 amended Sec.2, of Rule 67 (RIANO,
to the assessed value of the property for Vol.II, pages 296-297).
purposes of taxation to be held by such bank
subject to the orders of the court. ENTRY OR RULE 67
POSSESSION
Exception: UNDER RA 8974
If the subject-matter involves the acquisition
of right-of-way, site or location for any Subject-property is Expropriation is done
national government infrastructure project expropriated for for public use.
through expropriation specific purpose i.e
for acquisition of
Deposit shall be in MONEY, UNLESS the court Right-Of-Way, Site Or
authorizes the deposit of a certificate of Location For National
deposit of a government bank of the Government
Philippines payable on demand to the Infrastructure
authorized government depositary (Sec. 2, Rule Projects And For
67). Other Purposes

5.G.4. New system of immediate Government is Government is

payment of initial just compensation required to make required only to make
IMMEDIATE payment an initial DEPOSIT to
For the acquisition of right-of-way, site or DIRECTLY to owner AUTHORIZED
location for any national government upon filing of the DEPOSITORY.
infrastructure project through expropriation, complaint to be
upon filing of the complaint, and after due entitled to writ of
notice to the defendant, the implementing possession.
agency shall immediately pay the owner of the
property the amount equivalent to the sum of Relevant standard for Initial deposit be
(1) 100 percent of the value of the property intial compensation equivalent to
based on the current relevant zonal valuation ASSESSED VALUE of
* Land- is the property for purpose
of the BIR; and (2) the value of the
MARKET VALUE of of taxation
improvements and/or structures as
the property as stated
determined under Sec. 7 of RA 8974 (Sec. 4,
in Tax Declaration or
RA 8974).
CURRENT ZONAL
VALUE whichever is
R.A. No. 8974, which provides for a procedure
higher.
eminently more favorable to the property
owner than Rule 67, inescapably applies in * Improvements or
instances when the national government structures- Through
expropriates property ―for national REPLACEMENT COST
government infrastructure projects.‖ Thus, if METHOD
expropriation is engaged in by the national
government for purposes other than national * No valuation
infrastructure projects, the assessed value available: proffered
standard and the deposit mode prescribed in value of the property
Rule 67 continues to apply. The intent of R.A. seized.
8974 to supersede the system of deposit
under Rule 67 with the scheme of ―immediate
payment‖ in cases involving national
government infrastructure projects is indeed Purpose of preliminary deposit

196 CENTER FOR LEGAL EDUCATION AND RESEARCH

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(Sec. 2, Rule 67) purpose upon the payment of just

compensation (Sec. 4, Rule 67).
 Provide for damages if court finds plaintiff
has no right to expropriate. Instances when the court may issue an
order of expropriation:
 Advance payment for just compensation.
(Visayan Refining Co. vs. Camus, 40 Phil 550) a) Objections to and defenses against the
right of the plaintiff to expropriate the
5.G.5. Defenses And Objections property are overruled;
(Sec. 3, Rule 67) b) When no party appears to defend, as
required by this Rule.
If the defendant has no objection or defense
to the action or taking of his property, he may 5.G.7. Ascertainment of Just
file and serve a notice of appearance and a Compensation
manifestation to that effect.
Upon rendition of the ORDER of expropriation,
If a defendant has any objection to the filing the court shall:
of or the allegations in the complaint, or any
objection or defense to the taking of his 1. Appoint not more than 3 commisioners to
property, he shall serve his answer within the ascertain just compensation subject to
time stated in the summons. rules in Sec.5, Rule 67 ;

Prohibited Pleading 2. A hearing is conducted before the

No counterclaim, cross claim or third party commissioners and is INDISPENSABLE.
complaint shall be alleged or allowed in the
answer or any subsequent pleading. It is necessary to provide the parties (1)
notice of the said hearings and the
Waiver of defenses and Remedy thereto opportunity to attend them;
A defendant waives all defenses and (2) the opportunity to introduce evidence
objections not so alleged in their favor during the said hearings;
and
Remedy: Court, in the interest of justice, may (3) the opportunity for the parties to
permit amendments to the answer to be made argue their respective causes
not later than 10 days from the filing thereof.
When is there TAKING by Government
 In the instant expropriation case, where
Taking occurs not only when the government
the principal issue is the determination of
actually deprives the owner of the property,
just compensation, a hearing before the
but also when there is a practical destruction
commissioners is indispensable to allow
or material impairment of the value of the
the parties to present evidence on the
property.
issue of just compensation. While it is true
that the findings of commissioners may be
Defendant Cannot Be Declared In
disregarded and the trial court may
Default
substitute its own estimate of the value,
Failure to file an answer would result to the
the latter may only do so for valid
court‘s judgment on the right to expropriate
reasons, that is, where the commissioners
without prejudice to the right to present
have applied illegal principles to the
evidence on just compensation.
evidence submitted to them, where they
have disregarded a clear preponderance
5.G.6. Order of Expropriation (Order of
of evidence, or where the amount allowed
Condemnation)
is either grossly inadequate or excessive.
Thus, "trial with the aid of the
An order declaring that the plaintiff has lawful
commissioners is a substantial right that
right to take the property for the public use of

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ARELLANO UNIVERSITY SCHOOL OF LAW
may not be done away with capriciously or
for no reason at all. The absence of such
trial or hearing constitutes reversible error
on the part of the trial court because the
parties‘ RIGHT TO DUE PROCESS WAS
VIOLATED (National Power Corp, Vs.Sps Dela
Cruz, G.R. No. 156093 ,February 2, 2007;
RIANO, Vol.II page 301)
3. Commissioners shall assess
CONSEQUENTIAL DAMAGES to property
not taken and deduct from such damages
the CONSEQUENTIAL BENEFITS to be
derived by the owner from public use of
the property taken (Sec.6, Rule 67)
Consequential benefit can in NO case EXCEED
Consequential damages as to deprive the
owner of the value of his property (RIANO, Vol.
II, page 302)
5.G.8. Appointment of Commissioners;
Commisioner‟s Report; Court Action
Upon Commisioner‟s Report
All interested parties are allowed within 10
days upon being served copies of the
commissioners‘ report to file objections to the
same.
Appointment of Commissioners (Sec.5,
Rule 67):
Upon rendition of Order of Expropriation, the
court shall appoint not more than 3
COMPETENT AND DISINTERESTED persons as
COMMISSIONERS to ascertain just
compensation.
The appointment of commissioners is
MANDATORY and cannot be dispensed with.
ORDER OF APPOINTMENT
A. Shall designate:
a. the time and place of the first session
of the hearing to be held by the
commissioners; and
b. specify the time within which their
report shall be submitted to the court.
B. Copies of the order shall be served on the
parties.
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Objections to the appointment of any
commissioner
Filed within 10 days from service, and shall be
resolved 30 days after all the commissioners
shall have received copies of the objections.
Oath: 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.
Report
The court may
1. order the commissioners to report when
any particular portion of the real estate
shall have been passed upon by them,
2. May render judgment upon such partial
report, and
3. Direct the commissioners to proceed
with their work as to subsequent
portions of the property sought to be
expropriated, and
4. 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 (Sec. 7, Rule 67).
Action upon the report: Upon the
expiration of the period of ten (10) days
referred to in the preceding section, or even
before the expiration 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:
1. accept the report and render judgment
in accordance therewith; or,
2. for cause shown, it may recommit the
same to the commissioners for further
report of facts; or
3. set aside the report and appoint new
commissioners; or
4. 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 (Sec. 8, Rule
67).
Uncertain Ownership and Conflicting
Claims
The ownership shall be determined by the
court, the court may order any sum awarded
to be deposited with the court.
The court shall award any sum representing
just compensation to be deposited with the
Clerk of Court for the benefit of the person to
be later adjudged as lawful owner of the land
or the one entitled to the compensation in the
case. There is no need for an independent
action since the person entitled thereto will be
adjudged in the same proceeding (Sec. 9, Rule
67).
5.G.9. Rights of Plaintiff After Judgment
and Payment
1) To enter the property expropriated and
appropriate it for public use or purpose as
defined in the judgment; or
2) Retain it should immediate possession
under Sec. 2 has been exercised.
When is Title Vested in Expropriation
For personal property –Upon payment of just
compensation.
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PURPLE NOTES
For real property –Upon payment of just
compensation AND registration.
Plaintiff may enter into possession of the
property:
Upon the filing of the complaint, serving
notice to the defendant and after depositing
an amount equal to value of the property for
taxation purposes with authorized government
depositary.
Upon payment or tender of compensation
fixed by the judgment and payment of the
costs by plaintiff.
 Just compensation is determined as of
the date of the taking of the property OR
the filing of the complaint whichever came
first (BPI vs. CA 441 SCRA 269).
Just compensation refers to the sum
equivalent to the market value of the
property, broadly described to be the price
fixed by the seller in open market in the
usual and ordinary course of legal action
and competition, or the fair value of the
property as between one who receives
and one who desires to sell. It is fixed at
the time of the actual taking by the State.
Thus, if property is taken for public use
before compensation is deposited with the
court having jurisdiction over the case, the
final compensation must include interests
on its just value, to be computed from the
time the property is taken up to the time
when compensation is actually paid or
deposited with the court. (Apo Fruits Corp.et
al., vs. CA, G.R. No. 164195, December 04,
2009, citing LBP vs. Wycoco)
Formula to determine just compensation
JC = Just Compensation
FMV = Fair Market Value
CD = Consequential Damages
CB = Consequential Benefits
FMV + CD – CB = JC
If CB > CD then, JC = FMV
Who are entitled to Just Compensation:
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 The defendants in an expropriation case
are not limited to the owners of the
property condemned. They include all
other persons owning, occupying or
claiming to own the property. When
[property] is taken by eminent domain,
the owner x x x is not necessarily the only
person who is entitled to compensation. In
the American jurisdiction, the term
`owner' when employed in statutes
relating to eminent domain to designate
the persons who are to be made parties to
the proceeding, refer, as is the rule in
respect of those entitled to compensation,
to all those who have lawful interest in the
property to be condemned, including a
mortgagee, a lessee and a vendee in
possession under an executory contract.
Every person having an estate or interest
at law or in equity in the land taken is
entitled to share in the award. If a person
claiming an interest in the land sought to
be condemned is not made a party, he is
given the right to intervene and lay claim
to the compensation. (Republic vs.
Mangotara, G.R. No. 170375, July 07, 2010
citing ―De Knecht v. Court of Appeal‖)
If payment is refused:
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 or the
person ultimately adjudged entitled thereto
(Sec.10, Rule 67).
Effect of Non-Payment of Just
Compensation
Does not automatically entitle private owner to
recover possession of the expropriated
property.
BUT failure of State to pay within 5 years from
finality of judgement, private owners have the
right to recover possession of property (RIANO,
Vol.II, page 305)
Effect of Reversal of the Order of
Expropriation: The owner shall repossess
the property with the right to be indemnified
for all damages sustained due to the taking.
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Effect of judgment: Vests upon the plaintiff
the title to the real estate for public use or
purpose.
5.G.10. Effect of Entry of Judgment
The judgment entered in expropriation
proceedings shall state definitely, by an
adequate description,
1. the particular property or interest
therein expropriated, and
2. 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
Effect of Recording
Vest in the plaintiff the title to the real estate
so described for such public use or purpose
(Sec. 13, Rule 67).
Multiple Appeals
Order of expropriation may be appealed by
the defendant by record on appeal. This is an
instance when multiple appeals are allowed
because they have separate and/or several
judgments on different issues (such as issue
on the right to expropriate and issue of just
compensation)
Effect Of Appeal To Right Of Plaintiff To
Enter Property
An appeal does not delay the right of the
plaintiff to enter upon the property of the
defendant and appropriate the same for public
use.
5.H. FORECLOSURE OF REAL ESTATE
MORTGAGE
Foreclosure may either be judicial or
extrajudicial:
1) Judicial foreclosure is done pursuant to
Rule 68 of the Rules of Court; and
2) Extra-judicial foreclosure is effected
pursuant to Act No. 3135 as amended by
Act No. 4118
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When foreclosure is proper:

Extra-judicial foreclosure is the mode to
be used if there is a special power inserted in Default of the debtor must be first
or attached to the real estate mortgage established.
contract allowing an extra-judicial foreclosure
sale (Sec. 1, Act No. 3135 as amended). Where Default occurs when paymeng is not made
there is no such special power, the foreclosure after a VALID DEMAND, unless stipulated that
shall be done judicially following the demand is not necessary for default to arise
procedure set under Rule 68. When there is (RIANO, Vol.II, page 309)
no such authority under a special power of
attorney, the foreclosure must be made Procedure:
judicially. Rule 68 is silent to special provisions on the
mechanics of suit. Hence, a foreclosure suit
Parties to a judicial foreclosure will proceed like an ordinary civil action in so
far as not inconsistent with Rule 68 (RIANO,
Vol.II, page 314-315).
1) Mortgagee
2) Mortgagor
Where to File:
3) Successors in interest
4) Junior encumbrancer/s
MTC or RTC depending on jurisdictional
amount.
Parties Defendant:
An action for foreclosure of mortgage may be
Indispensable Parties
deemed as an action involving interest in real
property, hence a real action.
 Mortgage debtor
 Owner of property, if not debtor.
RA 7691 amended B.P.129 and expanded the
 Executor or administrator of deceased
jurisdiction of MTC, wherein an action
mortgagor.
―involving title to, or possession of, real
 Executor or administrator of the deceased
property or interest therein‖, the
owner; and
determination of jurisdiction shall be made by
 Heir/s of the deceased owner of the
inquiring the assessed value of property (Sec.
property.
33(3), and 19(2), B.P. 129; RIANO, Vol. II).
Necessary Parties
Contents of complaint (Sec. 1, Rule 68)
All persons having claims or claiming an
 Date and due execution of the mortgage;
interest subordinate to the holder of the
 Its assignments, if any;
mortgage, e.g. second mortgagee, subsequent
 Names and residences of the mortgagor
attaching creditor, and purchaser of the
and mortgagee;
mortgaged property.
 Description of mortgaged property;
 Statement of the date of the note or other
Nature and purpose:
documentary evidence of the obligation
The remedy used for the satisfaction of any
secured by the mortgage;
monetary obligation, which a person owes to
 Amount claimed to be unpaid thereon;
another, by proceeding against a property
and
used to secure said obligation.
 Names and residences of all persons
having or claiming an interest in the
Its purpose is to cut off the rights of the
property subordinate in right to that of the
owner of the property mortgaged used to
holder of the mortgage, all of whom shall
secure the obligation and all rights acquired
be made defendants in the action.
subsequent to said right.

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Effect if the Junior Encumbrancer is Not
Impleaded
 His equity or right of redemption is NOT
affected or barred by the judgment of the
court because he is a mere necessary
party not an indispensable party (Sunlife
Insurance vs. Diez, G.R. No. 29027, October
25, 1928)
The remedy of the senior encumbrancer is to
file an INDEPENDENT proceeding to foreclose
the right to redeem by requiring the junior
encumbrancer to pay the amount stated in the
order of execution or to redeem the property
in a specified time.
5.H.1. Judgment on the Foreclosure for
Payment or Sale (Sec. 2, Rule 68)
 Ascertain the amount due to the plaintiff
upon the mortgage debt or obligation,
including interest and other charges as
approved by the court and the costs;
 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 90
days and not more than 120 days
from entry of judgment;
 In default of such payment, such
property shall be sold at public
auction to satisfy the judgment
Judgement is appealable.
Period given on said rule is not merely
provisional but a SUBSTANTIVE RIGHT
granted to mortgage debtor as last
opportunity for him to pay his debt and save
his mortgaged property from final disposition
at a foreclosure sale (RIANO, Vol.II, page 315).
Effect of failure by the defendant to pay
the amount of judgment
 Court shall order the property to be sold.
 Sale shall not affect the rights of persons
holding prior encumbrances upon the
property or a part thereof.
 When confirmed by an order of the court
or upon motion, the sale shall operate to:
202 CENTER FOR LEGAL EDUCATION AND RESEARCH
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 Divest the rights in the property of all
parties to the action; and
 Vest their rights in the purchaser,
subject to such right of redemption.
(Sec. 3, Rule 68)
5.H.2. Sale of Mortgaged Property; Effect
Confirmation Of Sale
Mortgagee should file a MOTION for
confirmation of sale after foreclosure sale has
been effected (Sec. 3, Rule 68).
Motion for requires notice and hearing.
Effect Of Confirmation Of Sale
The confirmation of the sale shall
1. divest the rights in the property of all
parties to the action and
2. vest their rights in the purchaser,
subject to such rights of redemption as
may be allowed by law (Sec. 3).
 The title vests in the purchaser upon a
valid confirmation of the sale and
retroacts to the date of sale (Grimalt vs.
Vasquez, 36 Phil. 396).
The import of Sec. 3 includes one vital
effect: The equity of redemption of the
mortgagor or redemptioner is cut-off and
there will be no further redemption, unless
allowed by law (as in the case of banks as
mortgagees). The equity of redemption
starts from the ninety-day period set in
the judgment of the court up to the time
before the sale is confirmed by an order of
the court. Once confirmed, no equity of
redemption may further be exercised.
Order of Confirmation
The order of confirmation is appealable and if
not appealed within the period for appeal
becomes final.
Upon the finality of the order of confirmation
or upon the expiration of the period of
redemption when allowed by law, the
purchaser at the auction sale or last

redemptioner if any, shall be entitled to the
possession of the property and he may secure
a writ of possession, upon, motion, from the
court which ordered the foreclosure unless a
third party is actually holding the same
adversely to the judgment obligor (Sec. 3).
The mortgagor is entitled to a notice of
hearing of the confirmation of the sale.
Otherwise, the order is void. Due process
requires that said notice be given so that the
mortgagor:
Can resist the motion; and
Be informed that his right to redeem is cut off
(Tiglao vs. Botones, GR No. L-3619 October 29,
1951)
Effect of Finality of Order of
Confirmation
General Rule: The purchaser at the auction
sale or last redemptioner shall be entitled to
the possession of property:
1) Upon the finality of the order of
confirmation;
2) Upon the expiration of the period of
redemption when allowed by law.
Exception: When a third party is actually
holding the same adversely to the judgment
obligor.
Remedy: Secure a writ of possession, upon
motion (ex-parte), from the court which
ordered the foreclosure.
Motion for issuance of writ of possession
is an exception ti the 3-day notice rule
for motions
RULE 39 RULE 68
(Execution of (Foreclosure of Real
Judgments) Estate)
No need to confirm There is a need to
sale. confirm sale.
Mortgagor does not have the right to a notice
of sale after failure to pay debt because:
1) Said notice is not litigable; and
2) Issuance is ministerial.
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Remedy if mortgagor refuses to vacate
the property:
File an ex parte motion for writ of possession.
The issuance of a writ of possession in a
foreclosure proceeding is not an execution of
judgment within the purview of Section 6,
Rule 39 of the Rules of Court but is merely a
ministerial and complementary duty of the
court to put an end to the litigation which the
court can undertake even after the lapse of
five years, provided the statute of limitations
and the rights of third person have not
intervened in the meantime.
5.H.3. Disposition of proceeds of sale
The proceeds of the 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. If there be any further balance after
paying them or if there be no junior
encumbrancers, the same shall be paid to the
mortgagor or any person entitled thereto (Sec.
4).
Registration of sale
A certified copy of the final order of the court
confirming the sale shall be registered in the
registry of deeds.
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.
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.
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.
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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 (Sec. 7, Rule 68)
5.H.4. Deficiency Judgment
Judgment of Foreclosure: Action Quasi in
Rem
Deficiency Judgment: Action in Personam
Judgment rendered by the court holding
defendant liable for any unpaid balance due to
the mortgagee, if the proceeds the foreclosure
sale does not satisfy entire debt.
In case of deficiency judgment where the
property was sold less than the amount of the
loan, deficiency may be recovered by filing a
motion pursuant to Rule 39. There is no need
for an independent action to recover said
deficiency.
Deficiency Judgement is a judgment in itself,
thus APPEALABLE.
Judgment of Foreclosure: Action Quasi in
Rem
Deficiency Judgment: Action in Personam
5.H.4.A. Instances where court cannot
render deficiency judgment
 Recto Law (Art. 1484 of the NCC)
Non-resident mortgagor unless there is
attachment
Deficiency judgment is an action in
personam and jurisdiction over person is
mandatory. Since the debtor is outsde the
country, jurisdiction over his person
cannot be acquired (RIANO,Vol II, page
322).
 When mortgagor dies, the mortgagee
must file his claim with the probate court
(Sec. 7 Rule 86).
 Mortgagor is a third person but not
solidarily liable with the debtor.
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A mortgagor, who is not a debtor and
merely executed the mortgage to secure a
principal debtor‘s obligation is not liable
for deficiency unless he assumed liability
for the same in contract (Phil. Trust
Company v. Echaus Tan Siua, 52 Phil. 852;
RIANO,Vol II, page 322).
When Title Acquired:
The buyer acquires title upon finality of the
confirmation of sale.
If The Property Is Redeemed:
Deed of redemption shall be registered with
the registry of deeds.
 The certificate of title in the name of the
mortgagor shall be cancelled and a new
one issued in the name of the purchaser.
 No such right of redemption exist in case
of judicial foreclosure of mortgage if the
mortgagee is not a bank or banking
institution (Rosales vs. Suba 408 SCRA 664).
General Rule: There is no right of
redemption in a judicial foreclosure of
mortgage under Rule 68.
Exception: Mortgagee is a financial
institution (juridical person) (Government
Insurance System vs. The CFI of Iloilo, 185 SCRA
19)
 In extrajudicial foreclosure, there is
always a right of redemption within one
year from the date of sale (Sec. 6, Act No.
3135) but interpreted by the court to mean
one year from registration of the sale
(Reyes vs. Tolentino, L-29142, November 29,
1971).
 This period of redemption in extrajudicial
foreclosure is shortened by the General
banking Act of 2000 (Sec. 47, 2nd
paragraph) when the mortgagor is a
juridical person. The period of redemption
is ―until but not after‖ the registration of
the certificate of sale with the register of
Deed,‖ ―which in no case shall be more
than three months after foreclosure,
whichever is earlier. Since the law
mandates that the registration should be
effected not more than 3 months after the
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foreclosure, the redemption cannot be EXTRA-JUDICIAL JUDICIAL

made after the lapse of three months from FORECLOSURE FORECLOSURE
the foreclosure of the mortgaged property. (ACT 3135) (RULE 68)
Mortgagee has to file a Mortagagee can move for
separate action to recover deficiency judgment in the
In judicial foreclosures - there is only
any deficiency; same action
an equity of redemption which can be
Buyer at public auction Buyer at public auction
exercised prior to the confirmation of the becomes absolute owner becomes absolute owner
foreclosure sale. This means that after only after finality of an only after confirmation of
foreclosure sale but before its action for consolidation of the sale;
confirmation, the mortgagor may exercise ownership;
his right to pay the proceeds of the sale Mortgagee is given a Mortgagee need not be
and prevent the confirmation of the sale. special power of attorney given a special power of
This is the well recognized general rule. in the mortgage contract attorney.
to foreclose the mortgaged
property in case of default.
This rule however, has an exception.
No court intervention
There is a right of redemption if the Requires court intervention.
necessary.
foreclosure is in favor of banks as There is only an equity of
mortgagees. The right of redemption is Right of redemption exists.
redemption.
explicitly provided in Sec. 47, par. 1, of the Filed with the office of the
General Banking Law of 2000. filed before the RTC where
sheriff of the province
the mortgaged property or
where the sale is to be
any part thereof is situated
Where, after extrajudicial foreclosure of a made
real estate mortgage, the mortgagee There can be no judgement
purchased the same at the foreclosure for a deficiency because There could be a deficienty
sale, he shall be entitled to a writ of there is no judicial judgment rendered by the
proceeding although court in the same
possession despite the fact that the
recovery of deficienty is proceeding.
premises are in the possession of a lessee allowed.
whose lease had not yet terminated, The recovery of the
unless the lease had been previously Recovery for the deficiency
deficienty is through an
registered in the Registry of Property or can by done mere motion.
independent action.
the mortgagee had prior actual knowledge
of the existence of the lease. Under Sec. 7 5.H.6. Equity of Redemption Versus
of Act 3135, as amended, the petition for Right of Redemption
such writ of possession shall be made
under oath and filed as an ex parte EQUITY OF RIGHT OF
motion in the registration or cadastral REDEMPTION REDEMPTION
proceedings of the property (Ibasco vs. (Rule 68) (Secs. 29 – 31 of Rule
Caguioa, G.R. No. 62619, August 19, 1986). 39)
The right of defendant A right granted to a
5.H.5. Judicial foreclosure versus mortgagor to extinguish debtor mortgagor, his
the mortgage and retain successor in interest or
extrajudicial foreclosure
ownership of the any judicial creditor or
property by paying the judgment creditor or
EXTRA-JUDICIAL JUDICIAL debt within 90 to 120 any person having a lien
FORECLOSURE FORECLOSURE days after the entry of on the property
(ACT 3135) (RULE 68) judgment or even after subsequent to the
No complaint is filed; Complaint is filed with the the foreclosure sale but mortgage or deed of
courts; prior to confirmation. trust under which the
There is a right of No right of redemption property is sold to
redemption. Mortgagor has except when mortgagee is repurchase the property
a right of redemption for 1 a banking institution; within one year even
year from registration of equity of redemption only after the confirmation
the sale; (90 to 120 days, and any of the sale and even
time before confirmation after the registration of
of foreclosure sale);

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EQUITY OF RIGHT OF
REDEMPTION REDEMPTION
(Rule 68) (Secs. 29 – 31 of Rule
39)
the certificate of
foreclosure sale.
May be exercised even There is no right of
after the foreclosure sale redemption in a judicial
provided it is made foreclosure of mortgage
before the sale is under Rule 68. This
confirmed by order of the right of redemption
court. exists only in
extrajudicial
foreclosures where
there is always a right
of redemption within
one year from the date
of sale (Sec. 3, Act
3135), but interpreted
by the Court to mean
one year from the
registration of the sale.
May also exist in favor or General rule: In
other encumbrances. If judicial foreclosures
subsequent lien holders there is only an equity
are not impleaded as of redemption which
parties in the foreclosure can be exercised prior
suit, the judgment in to the confirmation of
favor of the foreclosing the foreclosure sale.
mortgagee does not bind This means that after
the other lien holders. In the foreclosure sale but
this case, their equity of before its confirmation,
redemption remains the mortgagor may
unforeclosed. A separate exercise his right of pay
foreclosure proceeding the proceeds of the sale
has to be brought against and prevent the
them to require them to confirmation of the sale.
redeem from the first
mortgagee or from the
party acquiring the title
to the mortgaged
property.
If not by banks, the Exception: there is a
mortgagors merely have right of redemption if
an equity of redemption, the foreclosure is in
which is simply their favor of banks as
right, as mortgagor, to mortgagees, whether
extinguish the mortgage the foreclosure be
and retain ownership of judicial or extrajudicial.
the property by paying This right of redemption
the secured debt prior to is explicitly provided in
the confirmation of the Sec. 47 of the General
foreclosure sale. Banking Law of 2000.
While the law mentions
the redemption period
to be one year counted
from the date of
registration of the
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EQUITY OF RIGHT OF
REDEMPTION REDEMPTION
(Rule 68) (Secs. 29 – 31 of Rule
39)
certificate in the
Registry of Property
Is the right of the Right of the mortgagor to
mortgagor to redeem the redeem the mortgaged
mortgaged property after property after registration
his default in the of the foreclosure sale,
performance of the and even after
conditions of the mortgage confirmation of the sale.
but before the sale of the
property to clear it from
the encumbrance of the
mortgage.
5.I. Partition
It is the process of dividing and assigning
property owned in common among the various
co-owners thereof in proportion to their
respective interests in said property.
Partition presupposes the existence of co-
ownership over a property between two or
more persons. The rule allowing partition
originates from a well known principle
embodied in the Civil Code of the Philippines
that no co-owner shall be obliged to remain in
the co-ownership. Because of this rule, he
may demand at any time the partition of the
property owned in common (Art. 494, Civil Code
of the Philippines)
Partition among heirs is not deemed a
conveyance of real property resulting in
change of ownership. It is not a transfer of
property but a confirmation or ratification of
title or right of property that an heir is
renouncing in favor of another heir who
accepts and receive the inheritance (Heirs of
Ureta, Sr. v, Heirs of Ureta, 657 SCRA 555, 596,
2011; RIANO, Vol. II, page 324).
Instances when a co-owner may not
demand partition at any time (2010 Bar)
a. There is an agreement among the co-
owners to keep the property undividied for
a certain period of time but not exceeding
ten (10) years;
b. When partition is prohibited by the donor
or testator for period not exceeding

twenty (20) years. (Art. 494 and 1083,
NCC);
c. When partition is prohibited by law.
(Art. 494, NCC)
d. When property is not subject to
physical division and to do so would
render it unserviceable for which it is
intended. (Art. 495, NCC)
e. When the condition imposed upon
voluntary heirs before they demand
partition has not yet been fulfilled.
(Art. 1084, NCC)
Two modes of Partition:
 Judicial Partition under Rule 69- when
parties cannot reach agreement; or
 Extrajudicial partition-by agreement of the
parties.
Non-inclusion of a co-owner
Before Judgment – not a ground for motion to
dismiss; remedy is to file a motion to include
the party.
After Judgment – judgment is void because
co-owners are indispensable parties.
When partition can be made
General Rule: Anytime and the right to
demand partition is imprescriptible.
Exception: Where one of the interested
parties openly and adversely occupies the
property without recognizing co-ownership, in
which case, acquisitive prescription may set in.
Nature of Partition: The partition of
property may be made voluntarily (by
agreement) or compulsorily under the Rules.
Mode of Appeal: Record on Appeal
5.I.1. Who may file complaint; Who
should be made defendants
 The action shall be brought by the person
who has a right to compel the partition of
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PURPLE NOTES
real estate (Sec. 1, Rule 69) or of an estate
composed of personal property, or both
real and personal property (Sec. 13, Rule
69).
 The plaintiff is a person who is supposed
to be a co-owner of the property or estate
sought to be partitioned. The defendants
are all the co-owners. All the co-owners
must be joined. Accordingly, an action will
not lie without the joinder of all co-owners
and other persons having interest in the
property (Reyes vs. Cordero, 46 Phil. 658). All
the co-owners, therefore, are
indispensable parties.
5.I.2. Matters to be alleged in the
complaint for partition
The nature and extent of the plaintiff‟s
title:
 Adequate description of real estate of
which partition is demanded.
 Join as party defendants all other persons
interested in the property.
Note: He must also include a demand for the
accounting of the rents, profits and other
income from the property which he may be
entitled to (Sec. 8, Rule 69).These cannot be
demanded in another action because they are
parts of the cause of action for partition. They
will be barred if not set up in the same action
pursuant to the rule against splitting a single
cause of action.
5.I.3. Two Stages of Partition
The First Phase of a partition and/or
accounting suit is taken up with the
determination of whether or not a co-
ownership in fact exists, and a partition is
proper (i.e., not otherwise legally proscribed)
and may be made by voluntary agreement of
all the parties interested in the property. This
phase may end with a declaration that plaintiff
is not entitled to have a partition either
because the co-ownership does not exist, or
partition is legally prohibited. It may end, on
the other hand, with an adjudgment that a co-
ownership does in truth exist, partition is
proper in the premises and an accounting of
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rents and profits received by the defendant place in which the property is situated (Sec. 2,
from the real estate in question is in order Rule 69).
xxx.
Contents of Effect of
Judgment
 The Second Phase commences when it Judgment Judgment
appears that "the parties are unable to The judgment To vest in each
agree upon the partition" directed by the shall state party to the act,
definitely, by in severalty the
court. In that event [,] partition shall be
metes and portion of the
done for the parties by the court with the If actual
bounds and estate assigned
assistance of not more than three (3) partition of
adequate to him.
commissioners. This second stage may property is
description, the
well also deal with the rendition of the made.
particular
accounting itself and its approval by the portion of the
court after the parties have been accorded estate assigned
opportunity to be heard thereon, and an to each party.
award for the recovery by the party or If the whole The judgment To vest in the
parties thereto entitled of their just share property is shall state the party making the
assigned to fact of such payment the
in the rents and profits of the real estate
one of the payment and whole of the real
in question. (Municipality of Binan v Garcia, parties the assignment estate free from
G.R. 69260, 22 December 1989) upon his of the real any interest on
paying to estate to the the part of the
5.I.4. Order of partition and Partition by the others party making other parties to
Agreement the sum or the payment. the action.
sums
Order of partition ordered by
the court.
 Issued after trial when the court finds the The judgment To vest the real
shall state the estate in the
plaintiff has the right thereto.
If the name of the purchaser or
 The order of partition is one that directs property is purchaser or purchasers
the parties or co-owners to partition the sold and purchasers and making the
property and the parties may make the the sale is a definite payment/s, free
partition among themselves by proper confirmed description of from the claims
instruments of conveyance, if they agree by the the parcels of of any of the
among themselves (Sec. 2, Rule 69). court. real estate sold parties to the
 If court finds that the facts are such that a to each action.
partition would be in order i.e. existence of purchaser.
co-ownership and plaintiff has right to
demand partition, an order of partition will Note: A case for partition and an action for
be issued by the court. Final Order quieting of title have identical causes of action
decreeing partition and accounting may be and can therefore be the subject of res
appealed by aggrieved party judicata (Heirs of Juana Gaudine vs. CA 427 SCRA
 If parties are unable to agree the court 545).
shall appoint not more than 3
commissioners to make the partition. 5.I.5. Partition by Commissioner

If the parties fail to agree upon a partition of

Partition by Agreement
the property, the court shall appoint not more
than 3 commissioners and disinterested
After issuance of Order of partition and the
persons as commissioner to make the
parties are able to agree, make the partition
partition, commanding them to set off to the
among themselves by proper instruments of
plaintiff and to each party in interest such part
conveyance: (1) confirmed by the court and
and proportion of the property as the court
(2) recorded in the registry of deeds of the
shall direct.

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Commisioners are authorized only to make or
effect the partition. There is nothing in the
provision that grants them authority to
adjudicate claims on ownership or questions
on title (RIANO,Vol. II, page 331).
Assignment or sale of real estate by
Commissioners
General Rule: When the real estate cannot
be divided without prejudice to the parties,
the court may assign the same to one of the
parties upon payment to the other party an
amount as the commissioners may deem
equitable.
Exception: When one of the parties asks that
the property be sold.
Parties are allowed 10 days to file objections
upon being notified of the assignment.
The appointment of commissioner is
mandatory unless there is an extrajudicial
partition between the parties.
Report of commissioners; proceedings
not binding until confirmed (Sec. 6, Rule 69)
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 shall pass the title to the
property or bind the parties until the court
shall have accepted the report of the
commissioners and rendered judgment
thereon.
Action of the court upon commissioners‟
report (Sec. 7, Rule 69)
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
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objections to the report or their statement of
agreement therewith,
The court may, upon hearing,
1. accept the report and render judgment in
accordance therewith; or,
2. for cause shown, recommit the same to
the commissioners for further report of
facts; or
3. set aside the report and appoint new
commissioners; or
4. accept the report in part and reject it in
part; and may make such order and
render such judgment
Judgement shall effectuate a fair and just
partition of the real estate, or of its value, if
assigned or sold as above provided, between
the several owners thereof.
5.I.6. Judgment and Its Effects
The judgment shall state definitely, by metes
and bounds and adequate description, the
particular portion of the real estate assigned
to each party, 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
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purchasers making the payment or Venue

payments, free from the claims of any
of the parties to the action.
Recording of Judgement
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 (Sec.
11, Rule 69).
5.I.7. Partition of personal property
The provisions of this Rule shall apply to
partitions of estates composed of personal
property, or of both real and personal
property, in so far as the same may be
applicable (Sec. 13, Rule 69).
Forcible entry and unlawful detainer actions
are actions affecting possession of real
property hence are real actions. The venue of
these actions therefore, is the place where the
property subject of the action is situated (Sec.
1, Rule 4, Rules of Court).
Nature of Action: Real and In Personam
Forcible entry and unlawful detainer are both
REAL and in personam actions. It is
considered also as in personam because
plaintiff seeks to enforce a a personal
obligation on the defendant to vacate the
property subject of the action and restore
physical possession to plaintiff (Domagas v.
Jensen, 448 SCRA 663, 676; RIANO, Vol. II, page
347).

5.I.8. Prescription of Action Actions for recovery of possession

Prescription of action does not run in favor of Accion

Accion Accion
a co-owner or co-heir against his co-owner or Reinvindi-
Interdictal Publiciana
catoria
co-heirs as long as there is a recognition of
Summary A plenary An action for
the co-ownership expressly or impliedly (Art. action for action for the the recovery
494). recovery of recovery of the of ownership
physical real right of which
 The action for partition cannot be barred possession possession necessarily
by prescription as long as the co- where dis- when the includes the
ownership exists (Aguirre vs. CA, 421 SCRA possession dispossession recovery of
310). has not lasted has lasted for possession.
for more than more than one
But while the action to demand partition of a one year. year.
Ejectment
co-owned property does not prescribe, a co-
proceeding
owner may acquire ownership thereof by under Rule
prescription where there exists a clear 70; either FE
repudiation of the co-ownership and the co- or UD
owners are apprised of the claim of adverse All cases of RTC has RTC has
and exclusive ownership. forcible entry jurisdiction if jurisdiction if
and unlawful the assessed value of the
5.J. Forcible Entry and Unlawful detainer value of the assessed
Detainer irrespective or property property
the amount of exceeds exceeds
damages or P20,000 P20,000
Forcible entry and unlawful detainer actions
unpaid rentals outside Metro outside Metro
are summary in nature designed to provide for sought to be Mla. P50,000 Mla. P50,00
an expeditious means of protecting actual recovered within Metro within Metro
possession or the right to possession of the should be Mla. MTC has Mla. MTC has
property involved. These actions both fall brought to the jurisdiction if jurisdiction if
under the coverage of the Rules on Summary MTC. value of the the value of
Procedure irrespective of the amount of property does property does
damages or unpaid rentals sought to be not exceed the not exceed
recovered (Sec. 3, Rule 70, Rules of Court). above amt. above
amounts.

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Accion FORCIBLE ENTRY UNLAWFUL DETAINER

Accion Accion
Reinvindi- the date of actual entry last demand.
Interdictal Publiciana
catoria on the property.
The basis for The basis of The basis for Defendant‘s Possession Defendant‘s Possession
the recovery the recovery the recovery was acquired by force, was acquired by
of possession of possession of intimidation, threat, tolerance or contract
is the is the possession is stealth and strategy
plaintiff‘s right plaintiff‘s real ownership
to the physical right of itself. 5.J.2. Distinguished From Accion
possession of possession or Publiciana and Accion Reinvidicatoria
the property jus
possessionis,
ACCION
which is the
ACCION PUBLICIANA REINVINDICATORIA
right to the
possession of A plenary ordinary civil An action for the
the real action for the recovery recovery of the exercise
property of the better right of of ownership,
independent possession (juridical particularly recovery of
of ownership. possession), must be possession as an
filed after the expiration attribute or incident of
of one year from the ownership;
 While it is true that the only issue in accrual of the cause of
forcible entry or unlawful detainer action is action or from the
the physical possession or possession de unlawful withholding of
facto – not possession de jure, yet the possession of the realty.
court may go beyond that if only to prove In other words, if at the
the nature of possession. The court may time of the filing of the
receive evidence upon the question of title complaint more than
solely for the purpose of determining the one year had elapsed
since defendant had
character and extent of possession and
turned plaintiff out of
damages for the detention (Consing vs. possession or
Jamandre, 64 SCRA 1) defendant‘s possession
had become illegal, the
5.J.1. Definition and Distinction action will be not one of
forcible entry or
FORCIBLE ENTRY UNLAWFUL DETAINER unlawful detainer but
The possession of the The possession of the an accion publiciana
defendant is unlawful defendant is lawful from (Valdez vs, CA, GR
from the beginning; the beginning becomes 132424, May 2, 2006).
issue is which party has illegal by reason of the The basis of the The basis for the
prior de facto expiration or termination recovery of possession recovery of possession
possession; of his right to the is the plaintiff‘s real is ownership itself.
possession of the right of possession or
property under any jus possessionis, which
contract, express or is the right to the
implied; possession of the real
The law does not Plaintiff must first make property independent of
require previous such demand which is ownership.
demand for the jurisdictional in nature;
defendant to vacate;
The plaintiff must prove The plaintiff need not
that he was in prior have been in prior
physical possession of physical possession;
the premises until he
was deprived by the
defendant; and
The one year period is The one-year period is
generally counted from counted from the date of

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5.J.3. How to Determine Jurisdiction in Period to File

Accion Publiciana, Accion Reinvidicatoria
and Accion Interdictal The actionmay be filed at any time within one
(1) year after such unlawful deprivation or
Accion Accion Accion withholding of possession, bring an action in
Interdictal Publiciana Reivindicatoria the proper Municipal Trial Court(Sec. 1, Rule
Ejectment RTC has RTC has 70).
cases are jurisdiction if jurisdiction if the
within the the assessed assessed value of
Against whom is the action made
exclusive value of the the property
and original property exceeds P20,000
jurisdiction exceeds outside Metro Mla. Against the person or persons unlawfully
of the MTC, P20,000 P50,000 within withholding or depriving of possession, or any
MeTC and outside Metro Mla. MTC person or persons claiming under them, for
MCTC (Sec. Metro Mla. has jurisdiction if the restitution of such possession, together
33[2], BP P50,000 value of the with damages and costs (Sec. 1, Rule 70).
129; RA within Metro property does not
7691) and Mla. MTC has exceed the When is the right to commence the
shall be jurisdiction if amount above
action for unlawful detainer arises
governed by value of the
the rules on property
summary does not When the lessee fails to comply therewith
procedure exceed the after fifteen (15) days in the case of land or
respective of amount five (5) days in the case of buildings (Sec. 2).
the amount above
of damages 5.J.5. Pleadings Allowed
or rental
sought to be The only pleadings allowed to be filed are the
recovered
complaint, compulsory counterclaim and
(Sec. 3, Rule
70).
cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be verified
(Sec. 4).
5.J.4. Who May Institute The Action
and When; Against Whom the Action
5.J.6. Action on the Complaint
May be Maintained.
The court may, from an examination of the
The action for forcible entry or unlawful
allegations in the complaint and such evidence
detainer may be filed by:
as may be attached thereto,
1. dismiss the case outright on any of the
1. A person (natural or juridical)
grounds for the dismissal of a civil
deprived of the possession of any
action which are apparent therein.
land or building by force,
2. If no ground for dismissal is found, it
intimidation, threat, strategy, or
shall forthwith issue summons (Sec. 5).
stealth (FORCIBLE ENTRY), or
2. A lessor, vendor, vendee, or other
Who may institute proceedings
person against whom the possession
of any land or building is unlawfully
Forcible Entry Unlawful Detainer
withheld after the expiration or
termination of the right to hold A person deprived of Lessor, vendor, vendee or
possession of any other person against
possession, by virtue of any contract,
land or building by whom possession of any
express or implied (UNLAWFUL force, intimidation, land or building is
DETAINER), or threat, strategy or unlawfully withheld or
3. The legal representatives or assigns of stealth. their legal representatives
any such lessor, vendor, vendee, or or assigns
other person (UNLAWFUL
DETAINER) (Sec. 1, Rule 70)

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Period to file Answer
Summons under Summary Procedure shall be
issued by the court. The defendant will be
given 10 days from service of summons to file
an Answer.
Defendant failed to file an Answer
If the defendant fails to file an answer after
the lapse of ten (10) days as the period
provided, the defendant through plaintiff‘s
motion or by the Court motu propio render
judgment based on the complaint filed and
limited to what is prayed for therein. (Sec. 7,
Rule 70)
Defendant filed an Answer (Sec. 8, Rule 70)
1. Preliminary Conference
Not later than 30 days from the last answer is
filed, a preliminary conference shall be held.
Effect of Failure of the plaintiff to appear
on the preliminary conference
Cause for the dismissal of the case; the
defendant who appeared in the absence of the
plaintiff shall be entitled to judgment on his
counterclaim. All cross-claims shall be
dismissed.
2. Issuance of Pre-trial Order
Within five (5) days after the preliminary
conference has been terminated, the court
shall issue a pre-trial order. (Sec. 9, Rule 70)
3. Submission of Affidavits
Within ten (10) days from receipt of the order,
parties shall submit affidavits of their
witnesses and their respective position papers.
(Sec. 10, Rule 70)
4. Rendition of Judgement
Within thirty (30) days from receipt of the
affidavits and position papers, or the
expiration period of filing the same, the court
shall render judgment, subject to a
clarificatory hearing if the courts deems that
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there are some matters that need to be
clarified or require the parties to submit
additional affidavits or evidence on said
matters.
Judgment
The court can award damages in ejectment
cases PROVIDED the damages refer only to:
 The fair and reasonable value of the use
and enjoyment of the property or the rent
arising from the loss of possession;
 Arrears;
 Liquidated damages since they are already
part of the contract
5.J.7. When Demand is Necessary
In forcible entry, a demand to vacate is not
required before the filing of the action
because the occupancy is illegal from the very
beginning.
In unlawful detainer, demand to vacate is
necessary as a rule.
Exception: Demand however shall not be
required when:
 There is a stipulation dispensing with a
demand (Art. 1169, Civil Code of the
Philippines); or
 When the ground for the suit is based on
the expiration of the lease because when
the lease expires the cause of action for
unlawful detainer immediately arises. The
lessor can now file an action for
ejectment. As a rule, demand is required
only when the ground for ejectment is
failure to pay rent or to comply with the
condition of the lease.
 Demand to vacate is, however, required
when the lease is on a month-to-month
basis to terminate the lease upon the
expiration of the month in order to
prevent the application of the rule of
tacita reconduction or implied new lease.
The acceptance of rentals in arrears does
not constitute WAIVER of default in
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payment of rentals (Clutario vs. CA, GR No.
70481 December 11, 1992)
 The term VACATE need not be stated if
there are other terms definitively implying
that the tenant should vacate (Golden Gate
Realty Corp. vs. CA)
 However, in La Campana vs. CA, the court
ruled that the rule in Golden Gate will not
apply if the term of the demand is
ambiguous in nature.
Demand may be made:
Personally
 By posting it at the premises if no
person is found thereon (Viray vs. CA,
G.R. No. 12076, February 24, 1998);
Substituted service
 Registered mail (Co Keng Kian vs. CA, G.R.
No. 75676, August 29, 1990).
5.J.8. Preliminary Injunction and
Preliminary Mandatory Injunction
Preliminary Injunction to prevent further
acts of disposition
The court may grant preliminary injunction in
accordance with Rule 58 of Rules of Court, to
prevent the defendant from committing
further acts of dispossession against the
plaintiff. (Sec. 15, Rule 70)
Preliminary Mandatory Injunction when
case is pending in the MTC
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 for the issuance
of a writ of preliminary mandatory injunction
to restore him in his possession. (Sec. 15, Rule
70)
Preliminary Mandatory Injunction when
case is on appeal to the RTC
Upon motion of the plaintiff, within ten (10)
days from the perfection of appeal to the RTC,
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2018
the latter may issue a writ of preliminary
mandatory injunction to restore the plaintiff in
possession.
Grant of wirt of preliminary mandatory
injuction is predicated on court‘s finding that:
1. if the court is satisfied that the
defendant‘s appeal is frivolous or
dilatory, or
2. the appeal of plaintiff is meritorious.
(Sec. 20, Rule 70)
5.J.9. Resolving Defense of Ownership
General Rule: Only issues regarding
possession should be resolved in an ejectment
case.
Exception: Question of ownership is
necessary for a proper and complete
adjudication of the issue of possession (Refugia
vs. CA).
General Rule: Third persons are bound by a
judgment in an ejectment case, provided his
possession can be traced from the title of the
defendant, e.g. sublessee.
Exceptions:
 If the property was acquired before the
action;
 If the property is covered by a Torrens
Title and the certificate does not state that
the property is subject to a pending action
and he bought the same in good faith.
 The assertion by the defendant of
ownership over the disputed property
does not serve to divest the inferior court
of its jurisdiction. The defendant cannot
deprive the court of jurisdiction by merely
claiming ownership of the property
involved (Rural Bank of Sta. Ignacia vs.
Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404
SCRA 487). If the defendant raises the
question of ownership and the issue of
possession cannot be resolved without
deciding the question of ownership, the
issue of ownership shall be resolved only
to determine the issue of possession (Sec.
3, RA 7691).
When the defendant raises the issue of
ownership, the court may resolve the
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issue of ownership only under the Immediate execution of Judgement

following conditions: (RTC)
The judgment rendered by RTC on appeal,
 When the issue of possession cannot against the defendant is immediately
be resolved without resolving the executory, without prejudice to a further
issue of ownership; and appeal that may be taken there from. (Sec. 2,
 The issue of ownership shall be Rule 70)
resolved only to determine the issue
of possession (Sec. 16).  From the foregoing, it is clear that it is
only execution of the Metropolitan or
5.J.10. How to stay the immediate Municipal Trial Courts‘ judgment pending
execution of judgment appeal with the Regional Trial Court which
may be stayed by a compliance with the
Immediate execution of Judgement requisites provided in Rule 70, Section 19
(MTC) of the 1997 Rules on Civil Procedure. On
the other hand, once the Regional Trial
General Rule: A judgment rendered by MTC Court has rendered a decision in its
against the defendant is immediately executor appellate jurisdiction, such decision shall,
unless: under Rule 70, Section 21 of the 1997
Rules on Civil Procedure, be immediately
Defendant must take the following steps executory, without prejudice to an
to stay the execution of the judgment: appeal, via a Petition for Review, before
the Court of Appeals and/or Supreme
 Perfect an appeal; Court. (Uy et al., vs. Santiago et.al., G.R. No.
 File a supersedeas bond to pay for the 131237, July 31, 2000)
rents, damages and costs accruing down
to the time of the judgment appealed When to appeal
from; and
The mode of appeal is the same as in ordinary
 Deposit periodically with the RTC, during
the pendency of the appeal, the adjudged civil action under Rule 40 of the Rules of Court
amount of rent due under the contract or where a notice of appeal is filed with and
if there be no contract, the reasonable docekt fee paid in court of origin (MTC)
value of the use and occupation of the (RIANO, Vol. II, page 364)
premises (Sec. 19, Rule 70).
5.K. CONTEMPT
Note: All the above stems must concur.
 Contempt of Court is a defiance of the
Exceptions: authority, justice or dignity of the court;
such conduct as tends to bring the
 Where delay in the deposit is due to fraud, authority and administration of the law
accident, mistake, or excusable into disrespect or to interfere with or
negligence; prejudice parties litigant or their witnesses
 Where supervening events occur during litigation (Halili vs. CIR, 136 SCRA
subsequent to the judgment bringing 112).
about a material change in the situation of
the parties which makes execution Purpose and nature of power
inequitable; and
 Where there is no compelling urgency for  The power to punish for contempt is
the execution because it is not justified by inherent in all courts; its existence is
the circumstances. essential to the preservation of order in
judicial proceedings and to the
enforcement of judgments, orders, and

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mandates of the courts, and consequently, 5.K.2. Purpose and Nature of Each
to the due administration of justice. According to Nature

The exercise of the power to punish for CRIMINAL CIVIL

contempt has dual aspect, primarily, the
proper punishment of guilty party for his
disrespect to the courts; and secondarily,
his compulsory performance of some act
or duty required of him by the court and
which he refuses to perform.
Contempt of court has been distinctly
described as an offense against the State
and not against the judge personally. To
reiterate, a judge must always remember
that the power of the court to punish for
contempt should be exercised for
purposes that are not personal, because
that power is intended as a safeguard, not
for judges as persons, but for the
functions they exercise. (Rodriguez vs.
Bonifacio, A.M. No. RTJ-99-1510, November
06, 2000)
Directed against the An offense against the
authority and dignity of party in whose behalf the
the court or a judge violated order was made
acting judicially
Purpose is to punish Purpose is to compensate
Criminal prosecutions Remedial and civil in
rules is strictly applied nature
In Yasay vs. Recto; it ruled that all contempt
proceedings partake of criminal in nature. As
such, rule on double jeopardy applies.
In special judgments under Rule 39 Section
11, the person required by the judgment to
obey the same may be punished for contempt
if he disobeys. NO contempt however lies in
judgments for money (Sec. 9) and judgments
for specific act (Sec. 10) under Rule 39.

5.K.1. Kinds of Contempt As to Manner of Commission:

As to Manner of Commission: DIRECT INDIRECT

Done in the presence Committed not in the
1. Direct contempt in general is of or so near the presence of the court or
court or judge done at a distance which
committed in the presence of or so near
tends to belittle ,
the court or judge as to obstruct or degrade, obstruct or
interrupt the proceedings, before the embarrass the court or
same. justice (Siy v. NLRC, GR
2. Indirect contempt is one committed No. 158971 August
out of the presence of the court. It is an 25,2005)
act done at a distance which tends to Summary in nature Punished only after
belittle, degrade, obstruct or embarrass written charge and/or
due hearing.
the court and justice.
If committed
against: If committed against:
As to NATURE: RTC or court of RTC or court of
equivalent or higher equivalent or higher rank
1. Civil Contempt consists in failing to do rank – fine not – fine not exceeding
something ordered to be done by a court exceeding P2,000 or P30,000 or imprisonment
or a judge in a civil case for the benefit imprisonment not not exceeding 6 months
of the opposing party therein. exceeding (10) days or both
or both. MTC – fine not
MTC – fine not exceeding P5,000 or
2. Criminal Contempt is a conduct that is
exceeding P200 or imprisonment not
directed against the authority and dignity imprisonment not exceeding (1) month or
of a court or of a judge acting judicially, exceeding (1) day, or both.
as in unlawfully assailing or discrediting both.
the authority and dignity of the court or Remedy: Remedy:
judge, or in doing a duly forbidden act. (1) Certiorari or (1) The person adjudged
prohibition directed for indirect contempt
against the court may appeal such
which adjudged him judgment or final order

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DIRECT INDIRECT
in direct contempt to the proper court as in 5.K.4. Remedy Against Indirect
(2) The execution of criminal cases. Contempt; Penalty
the judgment shall (2) The execution of the
be suspended judgment shall NOT be
He may appeal from the judgment or final
pending resolution of suspended until a bond
the petition, is filed by the person
order in the same manner as in criminal cases.
provided such person adjudged in contempt.
files a bond and Effect of appeal
conditioned that he The appeal shall not stay the judgment, unless
will abide by and the offender files a bond in an amount fixed
perform the by the court from which the appeal is taken.
judgment should the Such bond shall be conditioned upon his
petition be decided performance of the judgment or final order if
against him (Sec. 2,
Rule 71)
the appeal is decided against him.

5.K.4. How Contempt Proceedings are

Note: The distinction is only for the purpose
Commenced
of imposable penalty.
Direct Contempt
The judgment against a person adjudged to
be in contempt is immediately executory and
No formal proceeding is required to cite a
can be stopped only by filing a bond.
person in direct contempt. The court may
summarily adjudge one in direct contempt.
Acts deemed punishable as direct
(Encianas vs. National Bookstore, Inc. 464 SCRA
contempt 572)

 Misbehavior in the presence of or so near Indirect Contempt

a court as to obstruct or interrupt the
proceedings.
 Disrespect towards the court.
 Offensive personalities towards others.
 Refusal to be sworn or to answer as
witness or to subscribe an affidavit or
deposition when lawfully required doing
so. (Sec. 1, Rule 71)
 A pleading containing derogatory,
offensive or malicious statements when
submitted before or court or judge in
which the proceedings are pending is
direct contempt (Dantes vs. Caguioa, 461
SCRA 257).
5.K.3. Remedy Against Direct Contempt;
Penalty
His remedy is not an appeal but a petition for
certiorari or prohibition directed against the
court which adjudged him in direct contempt.
Pending the resolution of such petition, the
execution of the judgment for direct contempt
may be performance of the judgment should
the petition be denied.
Indirect contempt is to be punished only after
a charge in writing and a hearing (Sec. 3, Rule
71, Rules of Court). However, the requirement
of a written charge and a hearing shall not
prevent the Court from issuing process to
bring the respondent into court or from
holding in custody pending the proceedings
(Rule 71, Rules of Court).
Jurisdiction and Venue for Indirect
contempt
The determination where charge for indirect
contempt is to be filed depend upon the
LEVEL of court against which contemptuous
act was committed.
a. When the act is committed against RTC
or of equivalent or higher rank, or
officer appointed by it:
 Filed with the said court.
b. When the act is commited against a
lower court:

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 Filed with RTC of place where lower
court is sitting or
 To the same lower court subject to
appeal to RTC.
The procedural requisites before the
accused may be punished for indirect
contempt:
1. A charge in writing to be field;
2. An opportunity for the person charged
to appear and explain his conduct;
3. To be heard by himself or counsel.
(Regalado vs. Go, GR No. 167988,
February 6, 2007).
There are only two ways a person can be
charged of indirect contempt, namely
1. Through verified petition; and
2. By order or formal charge initiated by
the court motu proprio (Sec 4, Rule 71,
Rules of Court).
If the charge is initiated motu proprio
It is commenced by an order of the same
court or any formal charge requiring the
respondent to show cause why he should not
be punished for contempt. (Riano, Civil
Procedure, p. 747)
If initiated by someone other than the
court
Commenced by verified petition.
This petition shall be accompanied by
supporting particulars and certified true copies
of documents or papers involved therein. It
shall likewise comply with the requirements or
the filing of initiatory pleadings for civil actions
in the court concerned (Sec 4, Rule 71, Rules of
Court) Since it is considered an initiatory
pleading and must comply with the
requirements for the filing of initiatory
pleadings, the petition must hence, contain a
certification against forum shopping described
under Sec 5 of Rule 7 (Sec 4, Rule 71, Rules of
Court)
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NOTE: Procedural requirements are
MANDATORY as contempt proceedings are
treated as criminal in nature (OCA v. Lerma, 632
SCRA 698, 717-718; RIANO, Vol. II, page 377).
If the contempt charges arose out of or
are related to a principal action pending
in the court
General Rule: the petition for contempt shall
allege such fact but the petition shall be
docketed, heard and decided separately from
the principal action.
Exception: The court, however, in the
exercise of its discretion may order the
consolidation of the contempt charge and the
principal action for joint hearing and decision.
(Sec 4, Rule 71, Rules of Court)
5.K.6. Acts Deemed Punishable as
Indirect Contempt
Grounds for indirect contempt
 Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
 Disobedience of or resistance to a lawful
writ, process, order, or judgment of a
court;
 Unauthorized intrusion to any real
property after being dispossessed or
ejected by judgment;
 Any abuse of or any unlawful interference
with the proceedings of a court not
constituting direct contempt;
 Any improper conduct tending to degrade
the administration of justice;
 Assuming to be an attorney or an officer
of the court without authority;
 Failure to obey a subpoena duly served;
and
 Rescue, or attempted rescue, of a person
or property in the custody of an officer.
(Sec. 3, Rule 71)
5.K.7. When imprisonment can be
imposed
When the contempt consists in the refusal or
omission to do an act which is yet in the
power of the respondent to perform, he may
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be imprisoned by order of the court until he
performs it. (Sec. 8 Rule 71, Rules of Court)
The punishment is imposed for the benefit of
a complainant or a party to a suit who has
been injured aside from the need to compel
performance of the orders or decrees of the
court, which the contemnor refuses to obey
although able to do so (Riano, Civil Procedure, p.
751)
It is only the judge who orders the
confinement of a person for contempt of court
who could issue the Oder of Release (Inoturan
vs. Limsiaco Jr., 458 SCRA 48)
5.K.8. Contempt Against Quasi Judicial
Entities
The rules on contempt under Rule 71 apply to
contempt committed against persons or
entities against persons or entities exercising
quasi judicial functions or in case there are
rules for contempt adopted such bodies or
entities pursuant to law, Rule 71 shall apply
suppletorily. (Sec 12, Rule 71, Rules of Court)
Quasi judicial bodies that have the power to
cite the persons for indirect contempt
pursuant to Rule 71 of the Rules of Court can
only do by initiating them in the proper
RegionalTrial Court. It is not within their
jurisdiction and competence to decide the
indirect contempt cases. These matters are
still within the province of Regional Trial
Courts.
Jurisdiction and Venue For Indirect
Contempt against Quasi Judicial Bodies
The Regional Trial Court of the place wherein
the contempt has been committed shall have
jurisdiction over the charges for indirect
contempt that may be filed (Sec. 12, Rules of
Court)

SPECIAL CIVIL
JURISDICTION VENUE
ACTION
MTC – where the value of the claim or the Where the plaintiff or any of the principal
personal property does not exceed plaintiff resides or where the defendant or
P200,000 or P400,000 in Metro Manila or any of the principal defendants resides at
where the value of the real property does the option of the plaintiff
not exceed P20,000 or P50,000 in Metro
Manila. Note: The venue of special civil actions is
Interpleader
governed by the general rules on venue,
RTC – if the value exceeds the above except as otherwise indicated in the
amounts or if the subject matter is particular rule for said special civil action.
exclusively within the jurisdiction of the
RTC (e.g. specific performance, recovery
of title)
General Rule: Where the petitioner or the respondent
RTC (Declaratory Relief, Reformation of resides
instrument and Consolidation of
Ownership)
Exception: An action for QUIETING
TITLE (Jurisdiction depends on assessed
value of property)
Declaratory Relief
and Similar MTC – where the value of the claim or the
Remedies personal property does not exceed
P200,000 or P400,000 in Metro Manila or
where the value of the real property does
not exceed P20,000 or P50,000 in Metro
Manila.

RTC – if the value exceeds the above

amounts
Certiorari, RTC, CA, SC, Sandiganbayan whether or RTC of the place where the respondent

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SPECIAL CIVIL
JURISDICTION VENUE
ACTION
Prohibition, not in aid of its appellate jurisdiction court, corporation, officer or person is
Mandamus situated;

If petition is filed in the CA, SC or

Sandiganbayan, in which case the location
of the respondent is immaterial (Sec. 4,
Rule 65)
RTC, CA, SC If filed with the SC, or CA, the location of
respondent is immaterial or;

RTC of place where the respondent resides

Quo Warranto or where any of the respondents resides;

However, if the Solicitor General

RTC (Incapable of pecuniary estimation)
(Barangay San Roque vs. Heirs of Pastor,
GR No. 138896, June 20, 2000)
Expropriation
MTC – where the value of the claim or the
personal property does not exceed
P200,000 or P400,000 in Metro Manila or
where the value of the real property does
Foreclosure not exceed P20,000 or P50,000 in Metro
Manila.
commences the action, it may be brought in
the RTC in Manila
Where the property is located in case the
subject is a land.
In cases where the subject of expropriation
is personal property, venue is the place
where the plaintiff or defendant resides
Where the land or any part thereof is
located

RTC – if the value exceeds the above

amounts
RTC (Incapable of pecuniary estimation) Where the real property or a portion
thereof is located
Partition
If the subject matter is personal property
(Sec. 13 Rule 69), in the place where the
plaintiff or the defendant resides
Forcible Entry / MTC Where the property is located
Unlawful Detainer
MTC, RTC, CA, SC Where the contemptuous act was
committed.
Depends on where the contemptuous act
was made:
 Against RTC or of court wth
equivalent rank or higher rank or
Indirect against officer appointed by said
Contempt court—Filed on said Court
 Against lower court (MTC)—Filed
either
1) MTC, appealable to RTC or
2) RTC
If contemptuous act was against QUASI-
JUDICIAL BODIES: RTC

6. SPECIAL PROCEEDINGS
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MTC RTC
DEFINITION (Rule 1, Sec. 3(c)) Value of the personal Gross value of the
property, estate, or estate exceeds
A special proceeding is a remedy by which a amount of the Php300,000.00
party seeks to establish a status, a right, or a demand does not outside Metro Manila
particular fact. exceed Php or exceeds
300,000.00 outside Php400,000.00 within
SUBJECT MATTER (Rule 72, Sec. 1) Metro Manila or Php Metro Manila.
400,000.00 within (Effective April 15,
1. Settlement of estate of deceased Metro Manila. 1999 by virtue of Sec.
persons; (Effective April 15, 5, R.A. 7691)
2. Escheat; 2004 by virtue of Sec.
3. Guardianship and custody of children; 5, R.A. 7691)
4. Trustees;
5. Adoption;  The value indicated in MTC‘s jurisdiction is
6. Rescission and revocation of adoption; exclusive of interest, damages of whatever
7. Hospitalization of insane persons; kind, attorney's fees, litigation expenses,
8. Habeas corpus; and costs, the amount of which must be
9. Change of name; specifically alleged. I (Sec. 33(1), B.P. Blg.
10. Voluntary dissolution of corporation 129, as amended by Sec. 3, R.A. No. 7691)
11. Judicial approval of voluntary
recognition of minor natural children;  Interest, damages of whatever kind,
12. Constitution of family home attorney's fees, litigation expenses, and
13. Declaration of absence and death; costs shall be included in the determination
14. Cancellation or correction of entries in of the filing fees. (Sec. 33(1), B.P. Blg. 129, as
the civil registry. amended by Sec. 3, R.A. No. 7691)

Note: The list is not exclusive. As long as the
remedy seeks the establishement of an right,
status, or a particular fact, then such may be
called a special proceeding, regardless or
whether it is included in the foregoing
enumeration.
Sec. 2, Rule 72. Applicability of rules of civil
actions. - In the absence of special provisions,
the rules provided for in ordinary actions shall
be, as far as practicable, applicable in special
proceedings.
6.A. SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE AND
PROCESS
6.A.1. Which court has jurisdiction (B.P. Blg.
129, as amended by Sec. 3, R.A. No. 7691)
The Court which has jurisdiction may either be
the Municipal Trial Court or the Regional Trial
Court.
 Where there are several claims or causes of
actions between the same or different
parties, embodied in the same complaint,
the amount of the demand shall be the
totality of the claims in all the causes of
action, irrespective of whether the causes of
action arose out of the same or different
transactions. (Sec. 33(1), B.P. Blg. 129, as
amended by Sec. 3, R.A. No. 7691)
 The determination of which court exercises
jurisdiction over matters of probate depends
upon the GROSS VALUE of the estate of the
decedent. Rule 73, Section 1 is deemed
amended by BP 129, as amended by R.A.
7691 (Lim vs. CA, G.R. No. 124715, January 24,
2000, 323 SCRA 102).
Exclusionary Rule/ Principle of
Preferential Jurisdiction (Rule 73, Sec. 1)
The court first taking cognizance of the
settlement of estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts.

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Preference, however, is given in favour of the
court where the estate proceedings, as
compared to instestate proceedings, are held.
6.A.2. Venue in judicial settlement of
estate (Rule 73, Sec. 1)
Decedent is a In the proper Court
resident of PH at in the province in
the time of his which he resides at
death the time of his
death.
Decedent is a non- In the proper Court
resident of PH at of any province in
the time of his which he had estate.
death
 Citizenship of the decedent is immaterial in
determining the venue where the estate of
decedent is settled.
 "Residence" in the context of venue
provisions, means nothing more than a
person‘s actual residence or place of abode,
provided he resides therein with continuity
and consistency (Garcia-Quiazon vs. Belen,
G.R. No. 189121, July 31, 2013)
 The term residence should be viewed in its
popular sense. In this popular sense, the
term means merely residence, that is,
personal residence, not legal residence or
domicile.
Residence simply requires bodily presence
as an inhabitant in a given place, while
domicile requires bodily presence in that
place and also an intention to make it one‘s
domicile. No particular length of time of
residence is required though; however, the
residence must be more tan temporary. (San
Luis vs. San Luis, G.R. No. 133743, February 6,
2007)
The question of residence is determinative
only of the venue and does not affect the
jurisdiction of the court. Hence, the
institution of the proceeding in the province
wherein the decedent neither had residence
nor estate does not vitiate the action of the
probate court.
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2018
6.A.3. Extent of jurisdiction of probate
court
The main function of a probate court is to settle
and liquidate the estates of deceased persons
either summarily or through the process of
administration. (UY vs. CA, G.R. No. 167979, March
15, 2006)
Limited and Special
 The Court in citing the case of Coca vs.
Borromeo held that the CFI in the exercise
of its general jurisdiction or of its limited
probate jurisdiction is in reality not a
jurisdictional question. In essence, it is a
procedural question involving a mode of
practice "which may be waived." (Romero vs.
CA, G.R. No. 188921, April 18, 2012)
General Rule: Question of title or ownership
may not be decided by a probate court. The
question should be determined in a separate
action. (Romero vs. CA, G.R. No. 188921, April 18,
2012)
 The general rule is that the jurisdiction of
the trial court, either as a probate or an
intestate court, relates only to matters
having to do with the probate of the will
and/or settlement of the estate of deceased
persons, but does not extend to the
determination of questions of ownership
that arise during the proceedings. The
patent rationale for this rule is that such
court merely exercises special and limited
jurisdiction. (Agtarap vs. Agtarap, G.R. No.
177099, June 8, 2011)
Exceptions:
1. The probate court may provisionally pass
upon in an intestate or a testate proceeding
the question of inclusion in, or exclusion
from, the inventory of a piece of property
without prejudice to the final determination
of ownership in a separate action. (Agtarap
vs. Agtarap, G.R. No. 177099, June 8, 2011)
2. If the interested parties are all heirs to the
estate, or the question is one of collation or
advancement, or the parties consent to the
assumption of jurisdiction by the probate
court and the rights of third parties are not

impaired, then the probate court is
competent to resolve issues on ownership.
Verily, its jurisdiction extends to matters
incidental or collateral to the settlement and
distribution of the estate, such as the
determination of the status of each heir and
whether the property in the inventory is
conjugal or exclusive property of the
deceased spouse. (Agtarap vs. Agtarap, G.R.
No. 177099, June 8, 2011)
Exclusive
 Once a special proceeding for the
settlement of the estate of a decedent is
filed in one of such courts, that court
has exclusive jurisdiction over said
estate and no other special proceedings
involving the same subject matter may
be filed before any other court. (Romero
vs. CA, G.R. No. 188921, April 18, 2012)
6.A.4. Powers and duties of probate court:
1. Orders the probate of the will of the
decedent (Rule 77, Sec. 3).
2. Determine heirs (Solivio vs. CA, 182 SCRA 119).
3. Distribute estate
4. Grants letters of administration of the party
best entitled thereto to any qualified
applicant (Rule 79, Sec. 5).
5. Supervises and controls all acts of
administration.
6. Hears and approves claims against the
estate of the deceased (Rule 86, Sec. 11).
7. Orders payment of lawful debts (Rule 77, Sec.
3,).
8. Authorizes sale, mortgage or any
encumbrance of real estate (Rule 89, Sec. 2).
9. Directs the delivery of the estate to those
entitled thereto (Rule 90, Sec. 1).
10. Issue warrants and processes necessary to
compel the attendance of witnesses or to
carry into effect their orders and judgments,
and other powers granted them by law (Rule
73, Sec. 3).
11. If a person defies a probate order, it may
issue a warrant for the apprehension and
imprisonments of such person until he
performs such order or judgment, or is
released (Rule 73, Sec. 3);
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12. The Court acts as a trustee and should
guard the estate and see to it that it is
wisely and economically administered, not
dissipated (Timbol vs. Cano, 111 Phil. 923)
6.B. SUMMARY SETTLEMENT OF ESTATES
Kinds of Settlement of Estates
a. Extrajudicial Settlement - Parties may,
without securing letters of administration
from the court, divide the estate among
themselves as they see fit.
How executed:
1. By means of public instrument – If
there are two or more heirs.
2. By means of affidavit (Self-
Adjudication) – If there is only one heir
3. By stipulation in an ordinary action for
partition – If there are disagreements
between heirs.
b. Judicial Settlement
Types of Judicial Settlement
1. Summary settlment of estates of small
value
2. By petition
6.B.1. Extrajudicial settlement by
agreement between heirs, when allowed
Requisites of extrajudicial settlement (Rule
74, Sec. 1)
1. Decedent left no will;
2. There is no outstanding debts at the time of
the settlement;
3. Heirs are all of legal age or the minors are
represented by their judicial guardians or
legal representatives duly authorized for the
purpose;
4. The settlement, whether by public
instrument, or by stipulation in a pending
action for partition or affidavit, is duly filed
with the Register of Deeds;
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5. Publication in newspaper of general
circulation in the province once a week for 3
consecutive weeks;
6. Filing of bond equivalent to value of
personal property posted with the Register
of Deeds Bond required only when personal
property is involved in the extrajudicial
settlement. Real estate is subject to lien in
favour of creditors, heirs or other persons
for 2 years from distribution of estate,
notwithstanding any transfer of real estate
that may have been made (Sec.4, Rule 74).
Note:
It is incorrect to say that the estate of a
decedent who died intestate may be
extrajudicially settled since intestacy may arise
even if there is a will. The Rules provide that
only in cases where decedent left no will that his
estate may be extrajudicially settled.
Lack of Registration of extrajudicial settlement
does not affect its validity when there are no
creditors or rights of creditors are not involved;
(Vda. De Reyes vs. CA, 199 SCRA 646);
Rationale: When person dies without having
obligations to be paid, his heirs are not bound to
submit property for judicial administration,
which is always long and costly. (Utulo vs. Pasion,
66 Phil. 302)
 IF HEIRS DISAGREE – ordinary action for
partition.
 IF ONLY ONE HEIR – affidavit of self –
adjudication.
6.B.2.Two-year prescriptive period
It is presumed that decedent left no debts if no
creditor filed petition for letters of administration
within 2 years after the death of the decedent.
(Sec.1, Rule 74).
6.B.3. Affidavit of self-adjudication by sole
heir
If there is only one heir, he may adjudicate to
himself the entire estate by means of an
affidavit filed in the office of the Register of
Deeds. (Rule 74, Sec.1)
224 CENTER FOR LEGAL EDUCATION AND RESEARCH
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 Said rule is an exception to the general rule
that when a person dies leaving a property,
it should be judicially administered and the
competent court should appoint a qualified
administrator, in the order established in
Sec. 6, Rule 78 in case the deceased left no
will, or in case he did, he failed to name an
executor therein. (Portugal vs. Portugal-
Beltran, G.R. No. 155555, Aug. 16, 2005)
6.B.4. Summary settlement of estates of
small value, when allowed
Summary settlement of estate is a judicial
proceeding wherein, without the appointment of
executor or administrator, and without delay,
the competent court summarily proceeds to
value the estate of the decedent; ascertain his
debts and order payment thereof; allow his will
if any; declare his heirs, devisee and legatees;
and distribute his net estate among his known
heirs, devisees, and legatees, who shall
thereupon be entitled to receive and enter into
the possession of the parts of the estate so
awarded by them respectively. (Rule 74, Sec. 2)
 Summary settlement of estates are allowed
in testate and intestate succession when the
gross value of the estate does not exceed
PhP 10,000.00. (B.P. 129), even if there are
debts. This is jurisdictional. (Del Rosario vs.
Conanan, L-37903, March 30, 1977)
Summary settlement proceedings may be
instituted by any interested party and even by a
creditor of the estate without the consent of all
the heirs.
The court, before allowing partition, may require
the distributees, if the property other than real
is to be distributed, to file a bond in an amount
to be fixed by court, conditioned for the
payment of any just claim. (Rule 74, Sec.3)
Distinction between extrajudicial
settlement (ES) and summary settlement
of estates of small value (SS):
ES SS
1. No court intervention 1. Judicial adjudication
is necessary
although the nature
of the proceeding is
summary
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2. Value of estate 2. Applies only where 3. The creditor may ask for administration of
immaterial gross value not enough property of the state sufficient to
more than pay the debt, but the heirs cannot prevent
Php10,000.00 such administration by paying the obligation
3. Allowed only in when 3. Allowed in both (McMicking vs. SyConbieng, 21 Phil. 211).
there is no will. testate and intestate
4. After the lapse of the two–year period, an
4. There should be no 4. Available even if
ordinary action may be instituted against the
outstanding debts of there are debts
estate at time of distributees within the statute of limitations,
settlement but not against the bond.
5. Resorted to at the 5. May be instituted by 5. The action to annul a deed of extrajudicial
instance of and by any interested settlement on the ground of fraud should be
agreement of all party, even a filed within four years from the discovery of
heirs creditor of the the fraud (Gerona vs. De Guzman, L-19060, May
estate without the 29, 1964).
consent of all the 6. Action for reconveyance
heirs
6. Amount of bond is 6. Amount of bond is General Rule: The prescriptive period for
equivalent to the to be determined by
non-participants is 10 years from the date of
value of the personal court
property registration or from date of actual discovery
if registration was made in bad faith,
6.B.5. Remedies of aggrieved parties after because it is based on implied constructive
extrajudicial settlement of estate trust, being an obligation created by law,
prescribes in 10 years (Art. 1144, par. 2, Civil
Code).
1. Compel settlement of the claim and execute
against the bond or real estate - If it shall
Exception:
appear at any time within 2 years after the
settlement and distribution that an heir or
Action for reconveyance is imprescriptible if
other person has been unduly deprived of
plaintiff is in possession of the property.
his lawful participation in the estate, he may
When the party seeking reconveyance based
compel the settlement of the estate in the
on implied or constructive trust is in actual,
court having jurisdiction of the estate. Such
continuous and peaceful possession of the
court may issue an order to settle the
property involved, prescription does not
amount of such debts or lawful participation
commence to run against him because the
and order how much and in what manner
action would be in the nature of a suit for
each distributee shall contribute in the
quieting of title, an action that is
payment thereof, and may issue execution,
imprescriptible (Uy vs Court of Appeals,
if circumstances require, against the bond
173186, September 16, 2015).
provided in the preceding section or against
the real estate belonging to the deceased,
When plaintiff, the legal owner, and not the
or both (Sec. 4, Rule 74).
defendant registered owner, is in possession
2. Action for Rescission - A partition may be
of the land to be reconveyed. Said action,
rescinded or annulled for the same causes
when based on fraud, is imprescriptible as
as contracts (Art. 1097, NCC). A partition,
long as the land has not passed to an
judicial or extra-judicial, may also be
innocent purchaser for value (Heirs of
rescinded on account of lesion, when any Saludares vs. CA, 420 SCRA 54).
one of the co-heirs received things whose
value is less, by at least one-fourth, than the 7. Petition for Relief (Rule 38)
share to which he is entitled, considering
the value of the things at the time they
were adjudicated (Art. 1098, NCC).

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6.C. PRODUCTION AND PROBATE OF WILL
6.C.1. Nature of probate proceeding
(Guevara vs. Guevara, 74 Phil. 479)
1. Probate of a will is a proceeding in rem. It
cannot be dispensed with and substituted by
another proceeding, judicial or extrajudicial,
without offending public policy.
2. It is mandatory as no will shall pass either
real or personal property unless proved and
allowed in accordance with the Rules.
3. It is imprescriptible, because it is required
by public policy.
4. The State could not have intended to defeat
the same by applying thereto the statute of
limitation of actions.
General Rule: Probate court‘s authority is
limited only to extrinsic validity of the will.
Exception:
In exceptional circumstances, courts are not
powerless to pass upon certain provisions of will
which it may declare invalid even as it upholds
extrinsic validity of will. (Ajero vs. CA, 236 SCRA
488)
Probate of will might become idle ceremony if
on its face it appears intrinsically void
(Nepomunceno vs. Court of Appeals, G.R. No. L-
62952, October 9, 1985) or if the case where to be
remanded for probate of the will, it will result to
waste of time, effort, expense, plus added
anxiety.
6.C.2. Who may petition for probate;
persons entitled to notice
The following are the persons, who may petition
for probate under Sec. 1, Rule 76:
1. Executor
2. Legatee – need not be a relative of the
decedent
3. Devisee – need not be a relative of the
decedent
4. Other interested person – heir; creditor
An "interested person" has been defined as
one who would be benefited by the estate,
such as an heir, or one who has a claim
226 CENTER FOR LEGAL EDUCATION AND RESEARCH
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against the estate, such as a creditor. The
interest must be material and direct, and not
merely indirect or contingent. (San Luis vs.
San Luis, G.R. No. 133743, February 6, 2007)
5. Testator – during his lifetime
The following are the persons entitled to
personal notice:
1. Heirs
2. Legatees
3. Devisees
The following are the persons which may be
notified by mail or personally:
1. Heirs
2. Legatees
3. Devisees
4. Executor
a. Person named as executor (if he is not
petitioner)
b. Person named as co – executor not
petitioning
 Notice to designated heirs, legatees and
devisees is jurisdictional when they are
known AND their place of residence are
known (De Arranz vs. Galing, 161 SCRA 628)
 Notice is required to be personally given to
known heirs, legatees, and devisees of the
testator. [Sec. 4, rule 76, Rules of Court]. A
perusal of the will shows that respondent
was instituted as the sole heir of the
decedent. Petitioners, as nephews and
nieces of the decedent, are neither
compulsory nor testate heirs who are
entitled to be notified of the probate
proceedings under the Rules. Respondent
had no legal obligation to mention
petitioners in the petition for probate, or to
personally notify them of the same. (Alaban
vs. CA, G.R. No. 156021, Sept. 23, 2005)
6.D. ALLOWANCE OR DISALLOWANCE OF
WILL
6.D.1. Contents of petition for allowance
of will

a. The jurisdictional facts;
1. That a person has died leaving a will;
and
2. The testator at the time of death is a
resident within the territorial jurisdiction
of the court; or
3. The testator is a non – resident at the
time of death but left property within
the territorial jurisdiction of the court.
b. The names, ages, and residences of the
heirs, legatees, and devisees of the testator
or decedent;
c. The probable value and character of the
property of the estate;
d. The name of the person for whom letters
are prayed;
e. If the will has not been delivered to the
court, the name of the person having
custody of it.
But no defect in the petition shall render void
the allowance of the will, or the issuance of
letters testamentary or of administration with
the will annexed (Rule 76, Sec. 2).
6.D.2. Grounds for disallowing a will
a. if not executed and attested as required by
law;
b. if the testator was insane, or otherwise
mentally incapable to make a will, at the
time of execution;
c. if it was executed under duress, or the
influence of fear, or threats;
d. if it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
e. if the signature of the testator was procured
by fraud or trick, and he did not intent that
the instrument should be his will at the time
of fixing signature thereto (Rule 76, Sec. 9).
Grounds under Art. 839, Civil Code:
a. If the formalities required by law have not
been complied with;
b. If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
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c. If it was executed through force or duress,
or the influence of fear, or threats;
d. If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
e. If the signature of the testator was procured
by fraud;
f. If the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time of affixing his
signature thereto.
6.D.3. Reprobate / Re-authentication
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper court
in the Philippines (Rule 77, Sec. 1).
Doctrine of processual presumption
There must be evidence to prove the existence
of foreign law, otherwise the court should
presume that the law of the foreign country is
the same as Philippine laws.
6.E. REQUISITES BEFORE A WILL PROVED
ABROAD WOULD BE ALLOWED IN THE
PHILIPPINES
1. Due execution of the will in accordance with
the foreign laws;
2. The testator has his domicile in the foreign
country and not in the Philippines;
3. The will has been admitted to probate in
such foreign country;
4. The fact that the foreign tribunal is a
probate court; and
5. The laws of a foreign country on procedure
and allowance of wills (Vda. de Perez vs.
Tolete, G.R. No. 76714, June 2, 1994)
6.E.1. Effects of Probate
a) If it appears at the hearing that the will
should be allowed in the Philippines, the
court shall so allow it, and a certificate of its
allowance, signed by the judge, and
attested by the seal of the court, to which
shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will
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ARELLANO UNIVERSITY SCHOOL OF LAW
shall have the same effect as if originally Letters of Administration with the Will
proved and allowed in such court (Rule 77, Annexed - is the authority issued by the court
Sec. 3). to a competent person appointed by the court to
b) When a will is thus allowed, the court shall administer the estate of the deceased in cases
grant letters testamentary, or letters of when, although there is a will, the will does not
administration with the will annexed, and appoint any executor, or if appointed, said
such letters testamentary or of person is either incapacitated or unwilling to
administration, shall extend to all the estate serve as such.
of the testator in the Philippines. (Rule 77,
Sec. 4). Letters of Administration is the authority
c) If will was duly executed - Certificate of issued by the court to a competent person to
allowance attached to proved will. To be administer the estate of the deceased who died
recorded in the Office of Register of Deeds. intestate or with a void will.
(Rule 76, Sec. 13).
Executor Administrator
 The general rule universally recognized is As to Named by the Only appointed
that administration extends only to the Appointment testator and by the court.
assets of the decedent found within the appointed by
state or country where it was granted, so the court.
that an administrator appointed in one state As to existence With obligation There is no
or country has no power over the property of obligation to to present the obligation to
in another state or country. (Leon & Ghezzi present the will will within 20 present the will.
days upon
vs. Manufacturer‘s Life Ins., 80 Phil. 495)
death or upon
knowledge of
 When a person dies intestate owning appointment.
property in the country of his domicile as As to posting of Testator may Bond is always
well as in foreign country, administration bond direct the required.
shall be had in both countries. That which is executor to
granted in the jurisdiction of the decedent‘s serve even
domicile is termed the principal without a bond.
administration, while any other As to the Generally, as Governed by
administration is termed ancillary amount of provided by the Rule 85, Section
compensation testator. 7.
administration. The ancillary administration
is proper whenever a person dies leaving in
a country other than that of his domicile, Disqualification of an executor or
property to be administered in the nature of administrator
assets of the decedent, liable for his
individual debts or to be distributed among 1. Incompetent - No person is competent to
his heirs. (Johannes vs. Harvey, 43 Phil. 175) serve as executor or administrator who:

6.F. LETTERS TESTAMENTARY AND OF a. Is a minor;

ADMINISTRATION
6.F.1. When and to Whom Letters of
Administration Granted
Letters Testamentary is the appointment
issued by a probate court, after the will has
been admitted to probate, to the executor
named in the will to administer the estate of the
deceased testator, provided the executor named
in the will is competent, accepts the trust and
gives a bond (Rule 78, Sec. 4).
b. Is not a resident of the Philippines; and
c. Is in the opinion of the court unfit to
execute the duties of the trust by reason
of drunkenness, improvidence, or want
of understanding or integrity, or by
reason of conviction of an offense
involving moral turpitude (Rule 78, Sec.
1).
Drunkenness - Such degree which
impairs person‘s sound judgment and
reason that would necessarily affect the
person‘s integrity and honesty

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Improvidence – Lacks good judgment
and foresight necessary for the
fulfilment of responsibilities to manage
and preserve the estate
Want of understanding - Inability to
know the nature and functions as
executor/administrator
By reason of conviction of an offense
involving moral turpitude.
The list of unfitness provided under the
Rules is not exclusive. Ex: If testator has
an adverse interest on the settlement of
the estate.
2. Refused to accept the trust.
3. Failed to give a bond.
The executor of an executor shall not, as such,
administer the estate of the first testator (Rule
78, Sec. 2).
A married woman may serve as executrix or
administratrix, and the marriage of a single
woman shall not affect her authority so to
serve under a previous appointment (Rule 78,
Sec. 3).
6.F.2. Order of preference
If no executor is named in the will, or a person
dies intestate, administration shall be granted:
a. To the surviving husband or wife, as the
case may be, or next of kin, or both, in the
discretion of the court, or to such person as
such surviving husband or wife, or next of
kin, requests to have appointed, if
competent and willing to serve;
b. If persons mentioned above be incompetent
or unwilling, neglects for thirty (30) days
after the death of the person to apply for
administration or to request that
administration be granted to some other
person, it may be granted to one or more of
the principal creditors, if competent and
willing to serve;
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c. If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select (Rule
78, Sec. 6)
Order of Preference
1. Surviving spouse – partner in conjugal
partnership and heir of deceased;
2. Next of kin;
―Next of kin‖ refers to those whose
relationship with the decedent is such that
they are entitled to share in the estate as
distributees (Quiazon vs. Belen, G.R. No.
189121, July 31, 2013).
3. Person requested by spouse or next of kin;
4. Principal creditors;
5. Other person selected by court – if no
creditor competent or willing.
 The paramount consideration in the
appointment of an administrator over the
estate of a decedent is the prospective
administrator‘s interest in the estate.This is
the same consideration which Section 6,
Rule 78 takes into account in establishing
the order of preference in the appointment
of administrator for the estate.
The rationale behind the rule is that those
who will reap the benefit of a wise, speedy
and economical administration of the estate,
or, in the alternative, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest
and most influential motive to administer
the estate correctly. In all, given that the
rule speaks of an order of preference, the
person to be appointed administrator of a
decedent‘s estate must demonstrate not
only an interest in the estate, but an interest
therein greater than any other candidate.
(Suntay III vs. Conjuanco-Suntay, G.R. No.
183053, October 10, 2012)
 To illustrate, the preference bestowed by
law to the surviving spouse in the
administration of a decedent‘s estate
presupposes the surviving spouse‘s interest
in the conjugal partnership or community
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property forming part of the decedent‘s
estate. Likewise, a surviving spouse is a
compulsory heir of a decedent which evinces
as much, if not more, interest in
administering the entire estate of a
decedent, aside from her share in the
conjugal partnership or absolute community
property (Suntay III vs. Conjuanco-Suntay, G.R.
No. 183053, October 10, 2012).
 When the law speaks of "next of kin," the
reference is to those who are entitled, under
the statute of distribution, to the decedent's
property; one whose relationship is such
that he is entitled to share in the estate as
distributed, or, in short, an heir. In
resolving, therefore, the issue of whether an
applicant for letters of administration is a
next of kin or an heir of the decedent, the
probate court perforce has to determine and
pass upon the issue of filiation. A separate
action will only result in a multiplicity of
suits. Upon this consideration, the trial court
acted within bounds when it looked into and
passed upon the claimed relationship of
respondent to the late Francisco Angeles.
(Suntay III vs. Conjuanco-Suntay, G.R. No.
183053, October 10, 2012)
 The order of preference in the appointment
of a regular administrator as provided in the
aforequoted provision does not apply to the
selection of a special administrator. The
preference under Section 6, Rule 78 of the
rules of Court for the next of kin refers to
the appointment of a regular administrator,
and not a special administrator, as the
appointment of the latter lies entirely in the
discretion of the court, and is not
appealable. Not being appealable, the only
remedy against the appointment of a special
administrator is Certiorari under Rule 65 of
the Rules of Court. (Tan vs Gedorio, Jr., G.R.
No. 166520, March 14, 2008)
 Court may reject order of preference; while
surviving spouse is entitled to preference in
the appointment, circumstances might
warrant his rejection and appointment of
someone else, at the discretion of the court.
(Reynoso vs. Santiago, G.R. No. L-3039,
December 29, 1949)
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 Interest in estate as principal consideration;
In the appointment of an administrator, the
principal consideration is the interest in the
estate of the one to be appointed. (Gabriel
vs. CA, G.R. No. 101512, August 7, 1992)
 Those who will reap benefit a wise, speedy
and economical administration or will suffer
consequences of waste, improvidence or
mismanagement have the highest interest
and most influential motive to administer.
(Heirs of Belinda Dahlia vs. Lacuata-Gabriel, G.R.
No. 162934, November 11, 2005)
 The order of preference does not rule out
the appointment of co-administrators,
especially in cases where justice and equity
demand that opposing parties or factions be
represented in the management of the
estate.
 The order of preference is limited to
selection of regular administrator and does
not apply to special administrator.
Appointment of co-administrators,
allowed, but as an exception
Circumstances allowing appointment of co-
administrators:
a) to have the benefits of their judgment and
perhaps at all times to have different
interests represented;
b) where justice and equity demand that
opposing parties or factions be represented
in the management of the estate of the
deceased;
c) where the estate is large or, from any
cause, an intricate and perplexing one to
settle;
d) to have all interested persons satisfied and
the representatives to work in harmony for
the best interests of the estate;
e) and when a person entitled to the
administration of an estate desires to have
another competent person associated with
him in the office. (Suntay III vs. Conjuanco-
Suntay, G.R. No. 183053, October 10, 2012)

6.F.3. Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration
Any person interested in a will may oppose in
writing the issuance of letters testamentary to
persons named as executors, and at the same
time file petition for letters of administration
with will annexed (Rule 79, Sec. 1).
 Interest must be material and direct and not
merely contingent
 A natural child, being a compulsory heir, is
an interested party. (Garcia-Quiazon vs. Belen,
G.R. No. 189121, July 31, 2013)
 Even a common-law wife may still be an
interested party.
In the instant case, respondent would
qualify as an interested person who has a
direct interest in the estate of Felicisimo by
virtue of their cohabitation, the existence of
which was not denied by petitioners.
If she proves the validity of the divorce and
Felicisimo‘s capacity to remarry, but fails to
prove that her marriage with him was validly
performed under the laws of the U.S.A.,
then she may be considered as a co-owner
under Article 144 of the Civil Code. This
provision governs the property relations
between parties who live together as
husband and wife without the benefit of
marriage, or their marriage is void from the
beginning. (San Luis vs. San Luis, G.R. No.
133743, February 6, 2007)
 Where the right of the person filing a
petition for the issuance of letters of
administration is dependent on a fact which
has not been established or worse, can no
longer be established, such contingent
interest does not make her an interested
party. (Tayag vs. Tayag-Gallor, G.R. No. 174680,
March 24, 2008)
Publication and notice of hearing is
jurisdictional. (Rule 76, Sec. 3)
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 Also, notice to ―known heirs and creditors of
the decedent, and to any other person
believed to have an interest in the estate‖, if
names and addresses are known (De Arranz
vs. Galing, 161 SCRA 628).
6.F.4. Powers of Executor/Administrator;
Restrictions on their powers
Powers of Executor/Administrator
1. Have access to, examine and take copies of,
books and papers relating to the partnership
business, and examine and make invoices of
the property belonging to such partnership,
with respect to, Executors or administrators
of an estate of a deceased partner (Rule 84,
Sec. 1)
2. Possess and manage estate of the deceased
so long as it is necessary for the payment of
debts and expenses of administration. (Rule
84, Sec. 2)
3. With the approval of the court, to compound
or compromise with a debtor of the deceased
(Rule 87, Sec. 4)
Duties of Executor/Administrator
1. To maintain in tenantable repairs, houses
and other structures and fences and to
deliver the same in such repair to the heirs
or devisees when directed so to do by the
court (Rule 84, Sec. 2)
2. Posting of a bond (see Rule 81, Section 1,
Special Proceedings, 1964 Rules on Civil
Procedure)
3. Making a true and complete inventory within
three (3) months and returning the same to
the court (see Rule 81, Section 1(a), Special
Proceedings, 1964 Rules on Civil Procedure)
4. Administration (see Rule 81, Section 1(b),
Special Proceedings, 1964 Rules on Civil
Procedure)
5. Rendering a true and just account of his
administration to the court within one 1 year
(see Rule 81, Section 1(c), Special Proceedings,
1964 Rules on Civil Procedure)
6. Sale, mortgage, and other encumbrance of
the property (Rule 89, Special Proceedings,
1964 Rules on Civil Procedure)
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7. Payment of debts (Rule 88, Special
Proceedings, 1964 Rules on Civil Procedure)
8. Distribution and partition of the estate (Rule
90, Special Proceedings, 1964 Rules on Civil
Procedure)
 An administrator of an intestate cannot
exercise the right of legal redemption over a
portion of the property owned in common
sold by one of the other co-owners since
this is not within the powers of
administration. (Caro vs. CA, 113 SCRA 10)
 Where the estate of a deceased person is
already the subject of a testate or intestate
proceeding, the administrator cannot enter
into any transaction involving it without any
prior approval of the Court. (Estate of Olave
vs. Reyes, 123 SCRA 767)
 The right of an executor or administrator to
the possession and management of the real
and personal properties of the deceased is
not absolute and can only be exercised so
long as it is necessary for the payment of
the debts and expenses of administration.-
(Manaquil vs. Villegas, 189 SCRA 335)
 The administrator may only deliver
properties of the estate to the heirs after
payment of debts, funeral charges and other
expenses against the estate, except when
authorized by the court. (Silverio, Jr. Vs. Court
of Appeals, G.R. No. 178933, September 16,
2009)
Restrictions on Powers of
Executor/Administrator
1. He cannot acquire by purchase, even at
public or judicial action, either in person or
mediation of another, the property under
administration (Art. 1491, NCC);
2. He cannot borrow money without authority
from the court (Art. 1878 (7), NCC);
3. He cannot speculate with funds under
administration (Sec. 2, Rule 85, ROC);
4. He cannot lease the property under
administration for more than 1 year (Art.
1878 (8), NCC);
5. He cannot continue the business of the
deceased unless authorized by the court
(Sec. 1, Rule 84, ROC);
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6. He cannot profit by increase or decrease in
the value of property under administration
(Sec. 2, Rule 85, ROC); and
7. He cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other
co-owners
6.F.5. Appointment of special
administrator
When special administrator appointed
1. When there is delay in granting letters
testamentary or of administration by any
cause including appeal from allowance or
disallowance of will Court may appoint
special administrator to take possession
and charge of the estate of the deceased.
(Rule 80, Sec. 1)
2. When executor or administrator is a
claimant against the estate he represents.
 The appointment of a special administrator
is justified only when there is delay in
granting letters, testamentary (in case the
decedent leaves behind a will) or
administrative (in the event that the
decedent leaves behind no will, as in the
Petition at bar) occasioned by any cause.
The principal object of the appointment of a
temporary administrator is to preserve the
estate until it can pass into the hands of a
person fully authorized to administer it for
the benefit of creditors and heirs. (Tan vs
Gedorio, Jr., G.R. No. 166520, March 14, 2008)
The same jurisdictional requirements under
Rule 79, Sec. 3 are required in the
appointment of a special administrator.
(Special Proceeding Bar Review, Justice
Magdangal De Leon)
 Order appointing special administrator
interlocutory in nature and mere incident in
the judicial proceedings, hence not
appealable. (Samson vs Samson, 102 Phil. 735)
Regular Special
Administrator Administrator
Court‘s order of Court‘s order of
appointment may be appointment is
appealed. interlocutory and not
appealable. The

appointment may
only be challenged
through a special civil
action for certiorari
raising as a ground
grave abuse of
discretion amounting
to lack or excess of
jurisdiction.
One of the He is not empowered
obligations is to pay to pay the estate‘s
and discharge all the debts.
debts of the estate.
Instances when Instances when
appointment is made appointment is made
by the court: by the court:
(1) decedent dies (1) there is delay in
intestate; the granting of the
(2) decedent fails to letters testamentary
appoint an executor; or administration;
or (2) when the
(3) the will was executor or
disallowed. administrator is a
claimant against the
estate, but only as to
the portion over
which there is a
claim.
6.F.6. Grounds for removal of
administrator
1. Revocation of Letters of Administration
a. When decedent‘s will is discovered and
admitted to probate (Rule 82, Sec. 1).
b. When letters of administration were
illegally issued or issued by a court
without jurisdiction.
2. Administrator dies (Rule 82, Sec. 2)
3. Court may remove or accept resignation of
executor or administrator. (Rule 82, Sec. 2)
a. If an executor or administrator neglects
to render his account and settle the
estate according to law; or
b. Neglects to perform an order or
judgment of the court; or a duty
expressly provided by these rules; or
c. Absconds; or
d. Becomes insane; or
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e. Incapable or unsuitable to discharge the
trust
 Concerning complaints against the general
competence of the administrator, the proper
remedy is to seek the removal of the
administrator in accordance with Section 2,
Rule 82. While the provision is silent as to
who may seek with the court the removal of
the administrator, a creditor, even a
contingent one, would have the personality
to seek such relief. After all, the interest of
the creditor in the estate relates to the
preservation of sufficient assets to answer
for the debt, and the general competence or
good faith of the administrator is necessary
to fulfill such purpose. (Hilado vs. Court of
Appeals, G.R. No. 164108, May 8, 2009)
The lawful acts of an executor or
administrator before the revocation of his
letters testamentary or of administration, or
before his resignation or removal, shall have
the like validity as if there had been no such
revocation, resignation, or removal. (Section
3, Rule 82)
 Whether the intestate proceeding already
commenced should be discontinued and a
new proceeding under a separate number
and title should be constituted is entirely a
matter of form and lies within the sound
discretion of the court. In no manner does it
prejudice the substantial rights of any heirs
or creditors. (Reynoso vs. Santiago, G.R. No. L-
3039, December 29, 1949).
6.G. CLAIMS AGAINST THE ESTATE
Claim - Any debt or pecuniary demand against
the decedent‘s estate.
Absolute claim - One which, if contested
between living persons, would be the proper
subject of immediate legal action and would
supply a basis of judgment for a sum certain.
Contingent claim - Conditional claim, which is
subject to the happening of a future uncertain
event.
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Money claims – Expenses contracted prior the
death of decedent.
Expenses of administration – Claims incurred
after the decedent‘s death EXCEPT claims for
funeral expenses.
Purpose of Filing a Claim
 The purpose of presentation of claims
against decedents of the estate in the
probate court is to protect the estate of
deceased persons. That way, the executor
or administrator will be able to examine
each claim and determine whether it is a
proper one which should be allowed.
Further, the primary object of the provisions
requiring presentation is to apprise the
administrator and the probate court of the
existence of the claim so that a proper and
timely arrangement may be made for its
payment in full or by pro-rata portion in the
due course of the administration, inasmuch
as upon the death of a person, his entire
estate is burdened with the payment of all
of his debts and no creditor shall enjoy any
preference or priority; all of them shag
share pro-rata in the liquidation of the
estate of the deceased. (Estate of Amadeo
Matute Olave vs. Reyes, G.R. No. L-29407, July
29, 1983)
6.G.1. Time within which claims shall be
filed; Exceptions
General Rule: The court shall state the time
for the filing of claims against the estate, which
shall not be more than twelve (12) nor less than
six (6) months after the date of the first
publication of the notice.
Exceptions: Belated Claims.
1. At any time before order of distribution is
entered, creditor who failed to file his claim
within the time set may move to be allowed
to file such claim. Court may for good
cause shown and on such terms as are just
allow such claim to be filed within a period
not exceeding one month. (Section 2, Rule
86)
2. Where the estate filed a claim against the
creditor or claimant who failed to present
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his claim against the estate within the
period fixed by the probate court for the
settlement of such claims, the creditor will
be allowed to set up the same as a
counterclaim to the action filed by the
estate against him (Sec. 5, Rule 86)
 One month does not commence from
expiration of the original period for filing
claims. It begins from the date of the
order of the court allowing said filing
(Barredo vs. CA, 6 SCRA 620).
Claims Against the Estate
1. All claims for money against the decedent,
arising from contract, express or implied,
whether the same be due, not due, or
contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the
decedent;
4. Judgment for money against the decedent
 It is clear that Section 1 of Rule 74 does not
apply to the partition in question which was
null and void as far as the plaintiffs were
concerned. Under the Rules, "no
extrajudicial settlement shall be binding
upon any person who has not participated
therein or had no notice thereof." As the
partition was a total nullity and did not
affect the excluded heirs, it was not correct
for the trial court to hold that their right to
challenge the partition had prescribed after
two years from its execution (Neri vs. Heirs of
HadjuYusopUy, G.R. No. 194366, October 10,
2012, Segura vs. Segura, G.R. No. L-29320, 165
SCRA 367, September 19, 1988)
 On the issue of prescription, the Court
agrees with petitioners that the present
action has not prescribed in so far as it
seeks to annul the extrajudicial settlement
of the estate. Contrary to the ruling of the
CA, the prescriptive period of 2 years
provided in Section 1, Rule 74 of the Rules
of Court reckoned from the execution of the
extrajudicial settlement finds no application
to petitioners Eutropia, Victoria and Douglas,
who were deprived of their lawful
participation in the subject estate. Besides,
an "action or defense for the declaration of
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the inexistence of a contract does not
prescribe" in accordance with Article 1410 of
the Civil Code. (Neri vs. Heirs of Hadju Yusop
Uy, G.R. No. 194366, October 10, 2012)
 The filing of a money claim against the
decedent‘s estate in the probate court is
mandatory. The law strictly requires the
prompt presentation and disposition of the
claims against the decedent's estate in order
to settle the affairs of the estate as soon as
possible, pay off its debts and distribute the
residue. (Union Bank of the Philippines vs.
Santibañez, G.R. No. 149926, February 23, 2005)
6.G.2. Statute of Non-claims
The period fixed for the filing of claims against
the estate. Period fixed by probate court which
shall not be less than 6 months nor more than
12 months from the date of first publication of
the notice. Such period once fixed by the court
is mandatory, it cannot be shortened.
 Statute of Non-claims supersedes statute of
limitations. Even if claim has not yet
prescribed, it may be barred by Stature of
Non Claims. (Special Proceeding Bar Review,
Justice Magdangal De Leon)
 If the executor or administrator has a claim
against the estate he represents, he shall
give notice thereof, in writing, to the court,
and the court shall appoint a special
administrator, who shall, in the adjustment
of such claim, have the same power and be
subject to the same liability as the general
administrator or executor in the settlement
of other claims. The court may order the
executor or administrator to pay to the
special administrator necessary funds to
defend such claim (Rule 86, Sec. 8).
 From an estate proceeding perspective, the
Special Administrator‘s commission is no less
a claim against the estate than a claim that
third parties may make. The ruling on the
extent of the Special Administrator‘s
commission effectively, a claim by the
special administrator against the estate is
the lower court‘s last word on the matter
and one that is appealable. (Briones vs.
Henson-Cruz, G.R. No. 159130, August 22, 2008)
6.G.4. How to file a claim (Sec. 9 to 14, Rule
86)

 The rule requires certain creditors of a

deceased person to present their claims for
examination and allowance within a
specified period, the purpose thereof being
to settle the estate with dispatch, so that
the residue may be delivered to the persons
entitled thereto without their being
afterwards called upon to respond in actions
for claims, which, under the ordinary statute
of limitations, have not yet prescribed.
(Santos vs. Manarang, 27 Phil. 213)

 Speedy settlement of the estate of deceased

persons for the benefit of creditors and
those entitled to the residue by way of
inheritance or legacy after the debts and
expenses of administration have been paid
(Sikat vs. Villanueva, 57 Phil. 486).

6.G.3. Claim of Executor or administrator

against the Estate

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Form of claim How to File a Claim

236 CENTER FOR LEGAL EDUCATION AND RESEARCH

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 When the affidavit is made by a person

other than the claimant, he must state the
reason why it is not made by the claimant.

6.H. ACTIONS BY AND AGAINST

EXECUTORS AND ADMINISTRATORS

No action upon a claim for the recovery of

money or debts or interest thereon shall be
commenced against the executor or
administrator (Rule 86, Sec. 1).

It must be against the Estate (Rule 86, Secs. 1, 2

& 5).

6.H.1. Actions that may be brought against

executors and administrators.

1. An action to recover real or personal

property, or an interest therein, from the
estate, or to enforce a lien thereon; and;

 An action for quieting of title with

damages which is an action involving
real property. It is an action that
survives pursuant to Section 1, Rule 87
as the claim is not extinguished by the
death of a party. (Saligumba vs Palanog,
G.R. No. 143365, December 4, 2008)

 Civil Case No. 3488, which is an action

for the recovery of a personal property,
a motor vehicle, is an action that
survives pursuant to Section 1, Rule 87
of the Rules of Court. As such, it is not
extinguished by the death of a party.
(Sarsaba vs. Vda. de Te, G.R. No. 175910,
July 30, 2009)

2. Actions to recover damages for an injury to

person or property, real or personal, may be
commenced against the executor or
administrator (Rule 87, Sec. 1);

 Executor or administrator may sue upon

any cause of action which accrued to
the decedent during his lifetime (Bayot
vs. Sorbito, 39 Phil. 650).

 Any action affecting the property rights

of a deceased which may be brought by
or against him if he were alive, may be

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instituted and prosecuted by or against
the administrator, unless by its very
nature, it cannot survive, because death
extinguishes such right. (Limjoco vs.
Estate of Fragrante, G.R. No. L-770, April 27,
1948)
3. Actions which survives; Actions to recover
real or personal property or interest
thereon, or to enforce a lein thereon. (Rule
87, Sec. 2)
 Any action affecting the property rights
of a deceased which may be brought by
or against him if he were alive, may be
instituted and prosecuted by or against
the administrator, unless by its very
nature, it cannot survive, because death
extinguishes such right. (Limjoco vs.
Estate of Fragrante, G.R. No. L-770, April 27,
1948)
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 (Rule 3, Sec. 20).
 Before distribution is made or before
any residue known, heirs and devisees
have no cause of action against the
administrator for recovery of property
left by the deceased (Lao vs. Dee, 90 Phil.
868).
When Heirs may File Action in Court
General rule: Heirs have no legal standing to
sue for recovery or protection of property rights
of the deceased.
Exceptions:
1. Pending the filing of administration
proceedings. Under Art, 777, rights to
succession are transmitted from the
moment of death of the decedent.
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2. Administration proceedings have already
been commenced but administrator has not
yet been appointed.
3. Executor or administrator is unwilling or
refuses to bring suit.
4. Administrator is alleged to have participated
in the act complained of and he is made a
party defendant. (Special Proceeding Bar
Review, Justice Magdangal De Leon)
Embezzlement before Letters Issued
Double Value Rule: If before grant of letters
testamentary or of administration, a person
embezzles or alienates money or property of the
deceased – liable to an action in favor of
executor/administrator for double the value of
the property sold, embezzled or alienated. (Rule
87, Sec 8)
6.H.2. Requisites before creditor may
bring an action for recovery of property
fraudulently conveyed by the deceased
a. There is a deficiency of assets in the hands
of an executor or administrator for the
payment of debts and expenses of
administration;
b. The deceased in his lifetime had made or
attempted to make a fraudulent conveyance
of his real or personal property, or a right or
interest therein, or a debt or credit, with
intent to defraud his creditors or to avoid
any right, debt or duty; or had so conveyed
such property, right, debt, or credit that by
law the conveyance would be void as
against his creditors;
c. The subject of the attempted conveyance
would be liable to attachment by any of
them in his lifetime;
d. The executor or administrator has shown to
have no desire to file the action or failed to
institute the same within a reasonable time;
e. Leave is granted by the court to the creditor
to file the action;
f. A bond is filed by the creditor as prescribed
in the Rules;
g. The action by the creditor must be in the
name of the executor or administrator (Sec.
10, Rule 87).

Note:
The last 3 requisites are unnecessary where the
grantee of such conveyance is the executor or
administrator himself, in which event, the action
should be in the name of all the creditors.
6.I. PAYMENT OF DEBTS OF THE ESTATE
Requisites before a claim against the
estate may be paid
1. Hearing is conducted
2. Amounts of claims have been ascertained
3. There are sufficient assets to pay the claims
How should the debts of the estate be paid
General Rule: The payment of the debts of the
estate must be taken, by order of preference:
1. From the portion or property designated in
the will;
2. If such are insufficient, the properties not
disposed of by will, if any, shall be
appropriated for that purpose
a. From the personal property, and
b. From the real property after obtaining
authority of the court therefor
3. If there is still a deficiency, it shall be paid
according to Sec. 6, of Rule 88, which
provides that payment shall be met by
contributions by devisees, legatees, or heirs
who have been in possession of portions of
the estate before debts and expenses have
been settled and paid. (Rule 88, Secs. 1-3).
Exceptions: Instances When Realty Can Be
Charged First:
On application by executor or administrator,
with written notice to persons interested, and
after hearing, real properties can be charged
first even though the personal properties are not
exhausted:
1. When the personal property is not sufficient.
(Rule 88, Sec. 3)
2. Where the sale of personal property would
be detrimental to the participants
(everyone) of the estate. (Rule 88, Sec. 3)
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3. When sale of personal property may injure
the business or interests of those interested
in the estate. (Rule 88, Sec. 2)
4. When the testator has not made sufficient
provision for payment of such
debts/expenses/legacies. (Rule 88, Sec. 2)
5. When the decedent was, in his lifetime,
under contract, binding in law, to deed real
property to beneficiary. (Rule 88, Sec. 8)
6. When the decedent during his lifetime held
real property in trust for another person.
(Rule 88, Sec. 9)
Requisites for Exceptions to Ensue:
1. Application by executor/administrator;
2. Written notice to persons interested;
3. Hearing.
The same principles apply if the debt of the
estate is in another country (Special Proceeding
Bar Review, Justice Magdangal De Leon)
Time for Paying Debts:
2. Executor/administrator is allowed to pay
debts and legacies for a period not more
than 1 year.
3. Extendible on application of executor/
administrator and after notice and hearing
not exceeding 6 months for a single
extension.
4. Whole period allowed to original
executor/administrator shall not exceed 2
years.
5. Successor of dead executor/administrator
may have time extended on notice not
exceeding 6 months at a time and not
exceeding 6 months beyond the time
allowed to original executor/administrator.
Applicable provisions under the Civil Code:
Article 2241. With reference to specific
movable property of the debtor, the following
claims or liens shall be preferred:
1. Duties, taxes and fees due thereon to the
State or any subdivision thereof;
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2. Claims arising from misappropriation, breach
of trust, or malfeasance by public officials
committed in the performance of their
duties, on the movables, money or securities
obtained by them;
3. Claims for the unpaid price of movables
sold, on said movables, so long as they are
in the possession of the debtor, up to the
value of the same; and if the movable has
been resold by the debtor and the price is
still unpaid, the lien may be enforced on the
price; this right is not lost by the
immobilization of the thing by destination,
provided it has not lost its form, substance
and identity; neither is the right lost by the
sale of the thing together with other
property for a lump sum, when the price
thereof can be determined proportionally;
4. Credits guaranteed with a pledge so long as
the things pledged are in the hands of the
creditor, or those guaranteed by a chattel
mortgage, upon the things pledged or
mortgaged, up to the value thereof;
5. Credits for the making, repair, safekeeping
or preservation of personal property, on the
movable thus made, repaired, kept or
possessed;
6. Claims for laborers' wages, on the goods
manufactured or the work done;
7. For expenses of salvage, upon the goods
salvaged;
8. Credits between the landlord and the
tenant, arising from the contract of tenancy
on shares, on the share of each in the fruits
or harvest;
9. Credits for transportation, upon the goods
carried, for the price of the contract and
incidental expenses, until their delivery and
for thirty days thereafter;
10. Credits for lodging and supplies usually
furnished to travellers by hotel keepers, on
the movables belonging to the guest as long
as such movables are in the hotel, but not
for money loaned to the guests;
11. Credits for seeds and expenses for
cultivation and harvest advanced to the
debtor, upon the fruits harvested;
12. Credits for rent for one year, upon the
personal property of the lessee existing on
the immovable leased and on the fruits of
the same, but not on money or instruments
of credit;
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13. Claims in favor of the depositor if the
depositary has wrongfully sold the thing
deposited, upon the price of the sale.
Article 2242. With reference to specific
immovable property and real rights of the
debtor, the following claims, mortgages and
liens shall be preferred, and shall constitute an
encumbrance on the immovable or real right:
1. Taxes due upon the land or building;
2. For the unpaid price of real property sold,
upon the immovable sold;
3. Claims of laborers, masons, mechanics and
other workmen, as well as of architects,
engineers and contractors, engaged in the
construction, reconstruction or repair of
buildings, canals or other works, upon said
buildings, canals or other works;
4. Claims of furnishers of materials used in the
construction, reconstruction, or repair of
buildings, canals or other works, upon said
buildings, canals or other works;
5. Mortgage credits recorded in the Registry of
Property, upon the real estate mortgaged;
6. Expenses for the preservation or
improvement of real property when the law
authorizes reimbursement, upon the
immovable preserved or improved;
7. Credits annotated in the Registry of
Property, in virtue of a judicial order, by
attachments or executions, upon the
property affected, and only as to later
credits;
8. Claims of co-heirs for warranty in the
partition of an immovable among them,
upon the real property thus divided;
9. Claims of donors or real property for
pecuniary charges or other conditions
imposed upon the donee, upon the
immovable donated;
10. Credits of insurers, upon the property
insured, for the insurance premium for two
years.
Article 2243. The claims or credits enumerated
in the two preceding articles shall be considered
as mortgages or pledges of real or personal
property, or liens within the purview of legal
provisions governing insolvency. Taxes
mentioned in No. 1, article 2241, and No. 1,
article 2242, shall first be satisfied.

Article 2244. With reference to other property,
real and personal, of the debtor, the following
claims or credits shall be preferred in the order
named:
1. Proper funeral expenses for the debtor, or
children under his or her parental authority
who have no property of their own, when
approved by the court;
2. Credits for services rendered the insolvent
by employees, laborers, or household
helpers for one year preceding the
commencement of the proceedings in
insolvency;
3. Expenses during the last illness of the
debtor or of his or her spouse and children
under his or her parental authority, if they
have no property of their own;
4. Compensation due the laborers or their
dependents under laws providing for
indemnity for damages in cases of labor
accident, or illness resulting from the nature
of the employment;
5. Credits and advancements made to the
debtor for support of himself or herself, and
family, during the last year preceding the
insolvency;
6. Support during the insolvency proceedings,
and for three months thereafter;
7. Fines and civil indemnification arising from a
criminal offense;
8. Legal expenses, and expenses incurred in
the administration of the insolvent's estate
for the common interest of the creditors,
when properly authorized and approved by
the court;
9. Taxes and assessments due the national
government, other than those mentioned in
articles 2241, No. 1, and 2242, No. 1;
10. Taxes and assessments due any province,
other than those referred to in articles 2241,
No. 1, and 2242, No. 1;
11. Taxes and assessments due any city or
municipality, other than those indicated in
articles 2241, No. 1, and 2242, No. 1;
12. Damages for death or personal injuries
caused by a quasi-delict;
13. Gifts due to public and private institutions of
charity or beneficence;
14. Credits which, without special privilege,
appear in (a) a public instrument; or (b) in a
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final judgment, if they have been the
subject of litigation. These credits shall have
preference among themselves in the order
of priority of the dates of the instruments
and of the judgments, respectively.
Sale of property levied for satisfaction of
decedent‟s debts
If judgment debtor dies after such levy, property
may be sold. If judgment debtor dies before
levy, the property may not be sold but must be
presented as money claim against the estate of
deceased judgment debtor.
6.J. DISTRIBUTION AND PARTITION
 The settlement of a decedent‘s estate is a
proceeding in rem which is binding against
the whole world. All persons having interest
in the subject matter involved, whether
they were notified or not, are equally
bound. (DBP vs. Labor Arbiter Santos, G.R. No.
78261-62, March 8, 1989)
When order for distribution of residue
made (Rule 90, Sec 1):
General Rule: Distribution of the residue to
persons entitled thereto after notice and hearing
and after payment of:
a. Debts
b. Funeral charges
c. Expenses of administration
d. Allowance to widow
e. Inheritance tax
Exception: Distribution before payment of
obligations provided distributees give bond
conditioned for payment thereof within such
time as court directs.
The widow and minor or incapacitated children
of a deceased person, during the settlement of
the estate, shall receive therefrom under the
direction of the court, such allowance as are
provided by law. (Section 3, Rule 83, Special
Proceedings, 1964 Rules on Civil Procedure)
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 It is settled that allowances for support
under Section 3 of Rule 83 should not be
limited to the "minor or incapacitated"
children of the deceased. Article 188 of the
Civil Code of the Philippines, the substantive
law in force at the time of the testator's
death, provides that during the liquidation of
the conjugal partnership, the deceased's
legitimate spouse and children, regardless of
their age, civil status or gainful employment,
are entitled to provisional support from the
funds of the estate. The law is rooted on the
fact that the right and duty to support,
especially the right to education, subsist
even beyond the age of majority. (Pilapil vs.
Heirs of Briones, G.R. No. 150175, February 5,
2007)
 Be that as it may, grandchildren are not
entitled to provisional support from the
funds of the decedent's estate. The law
clearly limits the allowance to "widow and
children" and does not extend it to the
deceased's grandchildren, regardless of their
minority or incapacity. It was error,
therefore, for the appellate court to sustain
the probate court's order granting an
allowance to the grandchildren of the
testator pending settlement of his estate.
(Pilapil vs. Heirs of Briones, G.R. No. 150175,
February 5, 2007)
 In settlement of estate proceedings, the
distribution of the estate properties can only
be made: (1) after all the debts, funeral
charges, expenses of administration,
allowance to the widow, and estate tax have
been paid; or (2) before payment of said
obligations only if the distributees or any of
them gives a bond in a sum fixed by the
court conditioned upon the payment of said
obligations within such time as the court
directs, or when provision is made to meet
those obligations. (Heirs of Ruiz vs. Ruiz, G.R.
No. 118671, January 29, 1996)
6.J.1. Liquidation
Before there could be a distribution of the
estate, the following two stages must be
followed:
 Payment of obligations liquidation of estate
under the Rules, the distribution of a
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decedent‘s assets may only be ordered
under any of the following three
circumstances:
a. when the inheritance tax, among other
is paid;
b. when a sufficient bond is given to meet
the payment of the inheritance tax and
all other obligations; and
c. when the payment of the said tax and
all other obligations has been provided
for; and
 Declaration of heirs – there must first be
declaration of heirs to determine to whom
the residue of the estate should be
distributed. A separate action for the
declaration of heirs is not proper. And
likewise after, not before the declaration of
heirs is made may the residue be distributed
and delivered to the heirs.
 The net estate of the decedent must be
ascertained, by deducting all payable
obligations and charges from the value of
the property owned by the deceased at the
time of his death; then, all donations subject
to collation would be added to it. With the
partible estate thus determined, the legitime
of the compulsory heir or heirs can be
established; and only then can it be
ascertained whether or not a donation had
prejudiced the legitimes. (Heirs of Doronio
versus Heirs of Doronio, G.R. No. 169454,
December 27, 2007)
6.J.2. Project of partition
 Project of partition is a document prepared
by the executor or administrator setting
forth the manner in which the estate of the
deceased is to be distributed among the
heirs. If the estate is a testate estate, the
project of partition must conform to the
terms of the will; if intestate, the project of
partition must be in accordance with the
provisions of the Civil Code. (Camia de Reyes
vs. Reyes de Ilano, 63 Phil. 629)
Towards the end of the proceedings in a
settlement of estate petition, a project of
partition is usually prepared and presented
to the court. The project of partition is a

proposal for distribution of the hereditary
estimates and determines the persons
entitled thereto (Moran, Comments on the
Rules of Court, 1997 ed., Vol. 3, pp. 688-689)
 Finality of approval of project of partition by
itself does not terminate probate proceeding
(Timbol vs. Cano, 1 SCRA 1271).
 Probate court loses jurisdiction of an estate
under administration only after payment of
all debts and remaining estate delivered to
heirs entitled to receive the same (Guilas vs.
Judge of CFI of Pampanga, 43 SCRA 111)
 A judicial partition is not final and conclusive
and does not prevent the heir from bringing
an action to obtain his share, provided the
prescriptive period has not closed (Mari vs.
Bonilla, 83 SCRA 1137).
 A probate court has the power to enforce an
accounting as a necessary means to its
authority to determine the properties
included in the inventory of the estate to be
administered, divided up, and distributed.
Beyond this, the determination of title or
ownership over the subject shares may be
conclusively settled by the probate court as
a question of collation or advancement.
(Reyes vs. RTC Makati, Branch 142, G.R. No.
165744, August 11, 2008)
 Partial distribution of the estate should not
have been allowed. There was no
determination on sufficiency of assets or
absence of any outstanding obligations of
the estate of the late Raymond Triviere
made by the RTC in this case. In fact, there
is a pending claim by LCN against the
estate, and the amount thereof exceeds the
value of the entire estate. (Quasha Ancheta
Pena and Nolasco Law Office vs. LCN
Construction Corp., G.R. No. 174873, August 26,
2008)
 Although the right of an heir over the
property of the decedent is inchoate as long
as the estate has not been fully settled and
partitioned, the law allows a co-owner to
exercise rights of ownership over such
inchoate right.
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Once an action for the settlement of an
estate is filed with the court, the properties
included therein are under the control of the
intestate court. And not even the
administrator may take possession of any
property that is part of the estate without
the prior authority of the Court. (Silverio, Jr.
vs. Court of Appeals, G.R. No. 178933,
September 16, 2009)
6.J.3. Remedy of an heir entitled to
residue but not given his share
If there is a controversy before the court as to
who are the lawful heirs of the deceased person
or as to the distributive shares to which each
person is entitled under the law, the controversy
shall be heard and decided as in ordinary
cases (Rule 90, Sec. 1).
The heir may demand his share through:
a. A proper motion in the same probate or
administration proceedings, or
b. Motion to reopen if it had already been
closed, and not through an independent
action which would be tried by another
court or judge which might reverse a
decision or order of the probate court
already final and executed and reshuffle
properties long ago distributed and disposed
of (Guilas vs. Judge of CFI of Pampanga, G.R.
No. L-26695 January 31, 1972).
 The better practice for the heir who has not
received his share is to demand his share
through a proper motion in the same
probate or administration proceedings, or
for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action, which would be tried by
another court or judge. (Ramos vs. Octuzar,
89 Phil. 730)
 It has been held that an order which
determines the distributive share of the
heirs of a deceased person is appealable.
If not appealed within the reglementary
period, it becomes final. (Imperial vs.
Muñoz, 58 SCRA)
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Four cases illustrate the proper remedy:
1. Vda de Lopez vs. Lopez (35 SCRA 81)
2. Divinagracia vs. Rovira (72 SCRA 307)
Both involved the issue of the reglementary
period within which non-parties to the partition,
heir, devisee or any person interested in the
estate, can reopen the case.
Conclusion: If proceeding already closed,
motion to reopen may be filed by a non-party
deprived of his lawful participation, as long as it
is within 30 days (now 15 days) or before order
closing the proceedings becomes final.
3. Guillas vs. Judge of CFI of Pampanga
(43 SCRA 111)
4. Heirs of Jesus Fran vs. Salas (210 SCRA
303)
Both involved parties who have not received
their shares.
Conclusion: Parties to partition agreement who
have not received their shares can file a motion
for execution within 5 YEARS. But if other
grounds such as forgery of will are raised, final
judgment cannot be attacked EXCEPT through a
separate action. The validity of a final judgment
can be assailed through a petition for relief
under Rule 38, annulment of judgment under
Rule 47, and petition for certiorari under Rule
65, assuming the judgment is void for want of
jurisdiction. (Special Proceeding Bar Review, Justice
Magdangal De Leon)
Remedy of a Preterited Heir
 The intestate proceedings, although closed
and terminated, can still be opened within
the prescriptive period upon petition by the
preterited heir (Solivio vs. CA, 182 SCRA 1199).
Action upon an obligation created by law
must be brought within 10 years from the
time the right of action accrues (Art. 1144,
Civil Code).
 After the decision became final and
executory, the trial judge lost jurisdiction
over the case. Any modification that he
would make, i.e., the inclusion of Mary Lyon
Martin would be in excess of his authority.
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The remedy of Mary is to file an
independent suit against the parties and all
other heirs for her share in the subject
property, in order that all the parties in
interest can prove their respective claims
(Nunal vs. CA, G.R. No. 94005, April 6, 1993, 221
SCRA 26).
6.J.4. Instances when probate court may
issue writ of execution
General Rule: As a general rule, a probate
court cannot issue a writ of execution.
 It is not supposed to issue a writ of
execution because its orders usually refer to
the adjudication of claims against the estate
which the executor or administrator may
satisfy without the necessity of resorting to
a writ of execution. The probate court, as
such, does not render any judgment
enforceable by execution. (De Valera vs.
Ofilada, G. R. No. L-26, September 12, 1974)
Exceptions:
1. To satisfy the contributive shares of
devisees, legatees and heirs in possession of
the decedent‘s assets (Rule 88, Sec. 6).
2. To enforce payment of expenses of
partition (Rule 90, Sec. 3); and
3. To satisfy the costs when a person is cited
for examination in probate proceedings (Rule
132, Sec. 13).
Seven Stages in Settlement of Estate
1. Petition
2. Hearing
3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate
6. Distribution and Partition of Estate
7. Closing
6.K. TRUSTEES
When trustee Appointed
A trustee is appointed when necessary to carry
into effect the provisions of a
a. Will (Testamentary trust)
b. Written instrument (Contractual trust)
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Where trustee appointed by MTC or RTC.

As to Duties of trustees Duties only relate
In case of Will - Shall be appointed by the RTC General may cover a wider to administration
in which the will is allowed, or Duties range than those and disposition of
of executors or estates of
In case if written instrument - Shall be
administrators of deceased persons.
appointed by the RTC of the province in which the estate of
the property or some portion thereof affected by deceased persons.
the trust is situated (Rule 98, Sec 1) As to May or may not Administer
payment be required to payment of debts
 Although the will does not name a trustee, of debts administer the of the estate.
the probate court exercises sound judgment payment of debts.
in appointing a trustee to carry into effect As to duty Required to Required to render
the provisions of the will – where a trust is to account under initial account and
actually created by the will by the provision account oath at least once final account only.
a year until trust is Such account need
that certain of the property shall be kept
fulfilled. not be under oath.
together undisposed during a fixed period
and for a stated purpose (Lorenzo v. Posadas,
6.K.2. Conditions of the bond
64 Phil. 353)

 A trustee may acquire the trust estate by A trustee appointed by the court is required to
prescription provided there is a repudiation furnish a bond and the terms of the trust or a
of the trust, such repudiation being open, statute may provide that a trustee appointed by
clear and unequivocal, known to the cestui a court shall be required to furnish a bond in
qui trust (Salinas vs. Tuazon, 55 Phil. 729). order to qualify him to administer the trust. (54
Am. Jur. 425)
 Rule 98 applies only to express trust, one
The trustee must file a bond in an amount fixed
which is created by will or written
by the court payable to the Government of the
instrument, and not to an implied trust,
Philippines. Failure to do so shall be considered
which is deducible from the nature of the
as declining or resigning the trust. Conditions of
transaction as a matter of intent, or which
the bond:
are super induced on the transaction by
operation of law as matters of equity,
a. Make and return to the court a true
independent of the particular intention of
inventory of all real and personal estate that
the parties (O‘Lao vs Co Co Chit, G.R. No.
at the time of the inventory shall have come
58010, March 31, 1993,220 SCRA 656).
to his possession or knowledge
b. Manage and dispose of all such estate
6.K.1. Distinguished From Executor or
according to law and the will of the testator
Administrator (E/A) (Araneta vs. Perez, G.R.
Nos. L-16185-86, May 31, 1962)
or provisions of the instrument or order
under which he was appointed
c. Render a true account of the property in his
Trustee E/A
Similarity Both holds an office of trust.
hands
As to Governed by the Governed, fixed d. At the expiration of the trust, settle his
governing intention of the and/or limited by accounts in court and pay over and deliver
law/basis trustor or the law/Rules. all the estate remaining in his hands, or due
parties, if from him on such settlement, to the person
established by or persons entitled thereto. (Sec. 6, Rule 98)
contract.
As to Appointed by the Administrators are Note: But when the trustee is appointed as a
appointing RTC appointed and successor to a prior trustee, the court may
authority executors are
dispense with the making and return of an
approved by either
inventory, if one has already been filed, and in

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such case the condition of the bond shall be
deemed to be altered accordingly (Sec. 6, Rule
98).
The court may until further order exempt a
trustee under a will from giving a bond when:
(Sec. 5, Rule 98)
a. The testator has directed or requested such
exemption; or
b. When all persons beneficially interested in
the trust, being of full age, request the
exemption. Such exemption may be
cancelled by the court at any time, and the
trustee required to forthwith file a bond.
Note: If the trustee fails to furnish a bond as
required by the court, he fails to qualify as such.
Nonetheless the trust is not defeated by such a
failure to give bond.
6.K.3. Requisites for the removal and
resignation of a trustee (Sec. 8, Rule 98)
1. Petition of the parties beneficially interested
2. Due notice to the trustee
3. Hearing
6.K.4. Grounds for removal or resignation
of a trustee (Sec. 8, Rule 98)
1. It appears essential in the interests of the
petitioners.
2. Trustee is insane or otherwise incapable of
discharging his trust or evidently unsuitable
therefor.
3. A trustee, whether appointed by the court or
under a written instrument, may resign his
trust if it appears to the court proper to
allow such resignation.
 A trustee whose acts or omissions are such
as to show a want of reasonable fidelity will
be removed by the court and where trust
funds are to be invested by the trustee,
neglect to invest constitutes of itself a
breach of trust, and is a ground for removal.
(Gisborn vs. Cavende, 114 US 464)
6.K.5. Extent of authority of trustee
A trustee appointed by the RTC shall have the
same rights, powers, and duties as if he had
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been appointed by the testator. No person
succeeding to a trust as executor or
administrator of a former trustee shall be
required to accept such trust (Sec. 2, Rule 98).
Such new trustee shall have and exercise the
same powers, rights, and duties as if he had
been originally appointed, and the trust estate
shall vest in him in like manner as it had vested
or would have vested, in the trustee in whose
place he is substituted; and the court may order
such conveyance to be made by the former
trustee or his representatives, or by the other
remaining trustees, as may be necessary or
proper to vest the trust estate in the new
trustee, either alone or jointly with the
others (Sec. 2, Rule 98).
The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic of the
Philippines. This is based on the principle that
his authority cannot extend beyond the
jurisdiction of the country under whose courts
he was appointed.
In the execution of trusts, the trustee is bound
to comply with the directions contained in the
trust instrument defining the extent and limits of
his authority, and the nature of his power and
duties. (Special Proceeding Bar Review, Justice
Magdangal De Leon).
6.L. ESCHEAT
Escheat is a proceeding whereby the real and
personal property of a deceased person in the
Philippines, become the property of the state
upon his death, without leaving any will or legal
heirs (21 CJS, Sec. 1, p. 848).
Escheat is an incident or attribute of
sovereignty, and rests on the principle of the
ultimate ownership by the state of all property
within its jurisdiction. (30 C.J.S., 1164.)
Kinds of Escheat
1. A petition may be filed when a person dies
intestate, with real properties within the
Philippines, leaving no heir entitled to the
same (Sec. 1, Rule 91).

2. A petition for reversion of property alienated
in violation of the Constitution or statute
(Sec. 5, Rule 91).
3. Unclaimed/Dormant balances in banks (Act
No. 3936).
Parties in Escheat Proceedings
 Escheat proceeding must be initiated by the
Solicitor General. All interested parties,
especially the actual occupant and the
adjacent lot owners shall be personally
notified of the proceedings and given the
opportunity to present their vaid claims,
otherwise the property will be reverted to
the State (Tan vs. City of Davao, G.R. No. L-
44347, September 26, 1988).
Escheat of Estates
6.L.1. When to file
When a person dies intestate, seized of real or
personal property in the Philippines, leaving no
heir or person by law entitled to the same, the
Solicitor General or his representative in behalf
of the Republic of the Philippines, may file a
petition in the Court of First Instance of the
province where the deceased last resided or in
which he had estate, if he resided out of the
Philippines, setting forth the facts, and praying
that the estate of the deceased be declared
escheated (Rule 91, Sec. 1).
6.L.2. Requisites for filing of petition
1. That a person died intestate;
2. That he left no heirs or person by law
entitled to the same; and
3. That the deceased left properties in the
Philippines (City of Manila vs. Archbishop of
Manila, 36 Phil. 815).
Where to File
Regional Trial Court of the place where the
deceased was resident, or in which he had
estate, if he was a nonresident. (Rule 91, Sec 1)
Notice and Publication (Rule 91, Sec. 2)
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1. Date of hearing not more than 6 months
after entry of order.
2. Publication of order at least once a week for
6 consecutive weeks in newspaper of
general circulation in the province.
 Publication of the notice of hearing is a
jurisdictional requisite, non-compliance with
which affects the validity of the proceedings
(Divino v. Hilario, 62 Phil. 926).
 Escheat proceedings cannot be converted to
settlement of the estate because the court
acquired jurisdiction to hear petition for
escheat by virtue of publication of the
petition for escheat. The jurisdiction
acquired can not be converted into one for
the distribution of the properties of the said
decedents. For such proceedings (for the
distribution of the estate of the decedents)
to be instituted, the proper parties must be
presented and the proceedings should
comply with the requirements of the Rule
(In the matter of escheat proceedings of the
estate of the deceased Anne Fallon Murphy vs
Ignatius Henry Bezore, L-14157, October 26,
1960).
Escheat of Unclaimed Balances
Unclaimed balances which include credits or
deposits of money, bullion, security or other
evidence of indebtedness of any kind, and
interest thereon with banks in favor of any
person unheard from for a period of ten (10)
years of more, together with the interest and
proceeds thereof shall be deposited with the
Insular Government of the Philippines as the
Philippine Legislature may direct (Act No. 3936,
Unclaimed Balances Act, Section 1)
 Action to recover unclaimed balances shall
be commenced by the Solicitor General in an
action for escheat in the name of the People
of the Philippines in the Regional Trial Court
of the province where the bank is located, in
which shall be joined as parties the bank
and such creditors or depositors. All or any
member of such creditors or depositors or
banks, may be included in one action.
(Republic vs. CFI of Manila and Pres. Roxas Rural
Bank, Inc., G.R. No. L-30381, August 30, 1988)
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6.L.3. Remedy of respondent against
petition; period for filing a claim
File a motion to dismiss
 When a petition for escheat does not state
facts which entitle the petitioner to the
remedy prayed for, and even admitting
them hypothetically, it is clear that there is
no ground for the court to proceed to the
inquisition provided by law, an interested
party should not be disallowed from filing a
motion to dismiss the petition which is
untenable from all standpoints. And when
the motion to dismiss is entertained upon
this ground, the petition may be dismissed
unconditionally and the petitioner is not
entitled to be afforded an opportunity to
amend his petition. (Go Poco Grocery vs.
Pacific Biscuit Co., 65 Phil. 443)
 While the Rules do not in fact authorize the
filing of a motion to dismiss the petition
presented for that purpose, and the Rules
permitting the interposition of a motion to
dismiss to the complaint and answer,
respectively, are not applicable to special
proceedings, nevertheless, there is no
reason of a procedural nature which
prevents the filing of a motion to dismiss
based upon any of the grounds provided for
by law for a motion to dismiss the
complaint. In such a case, the motion to
dismiss plays the role of a demurrer and the
court should resolve the legal questions
raised therein. (Municipal Council of San Pedro,
Laguna vs. Colegio de San Jose, 65 Phil. 318)
Period for Filing of Claim
If a devisee, legatee, heir, widow, widower, or
other person entitled to such estate appears and
files a claim thereto with the court within five
(5) years from the date of such judgment, such
person shall have possession of and title to the
same, or if sold, the municipality or city shall be
accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate; but a claim not made within the said
time shall be forever barred. (Rule 91, Sec 4)
Note: 5-year period is prescribed to encourage
would-be claimants to be punctilious in asserting
248 CENTER FOR LEGAL EDUCATION AND RESEARCH
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their claims; otherwise they may lose them
forever in a final judgment. (Republic vs. CA, G.R.
No. 143483, January 31, 2002)
Distribution of Properties
Resident of the Non-resident of
Philippines the Philippines
Personal Property Respective
– municipality or city municipality or city
where the decedent where the properties
last resided in the are located.
Philippines.
Real Property –
municipality or city in
which the property is
situated.
6.M. GUARDIANSHIP
 A guardianship is a trust relation of the most
sacred character, in which one person,
called a "guardian" acts for another called
the "ward" whom the law regards as
incapable of managing his own affairs.
(Oropesa vs. Oropesa, G.R. No. 184528, April 25,
2012)
 A trust relation in whom one person acts for
another whom the law regards as incapable
of managing his own affairs. The person
who acts is called the guardian and the
incompetent is called the ward. (Francisco vs.
CA, G.R. No. L-57438, January 3, 1984)
A guardian is a person lawfully invested with
power and charged with the duty of taking
care of a person who for some peculiarity or
status or defect of age, understanding or
self-control is considered incapable of
administering his own affairs (Black‘s Law
Dictionary, Fifth Edition).
Basis of Guardianship:
 Where minors are involved, the State acts
as parens patriae. It is the duty of
protecting the rights of persons or
individuals who because of age or
incapability are in an unfavorable position
vis-à-vis other parties. (Nery vs. Lorenzo, G.R.
No. L-23096, April 27, 1972)

Purpose of Guardianship:
It is intended to preserve the ward‘s property,
as well as to render any assistance that the
ward may personally require. It has been stated
that while custody involves immediate care and
control, guardianship indicates not only those
responsibilities, but those of one in loco parentis
as well (Oropesa vs. Oropesa, G.R. No. 184528, April
25, 2012).
6.M.1. General Powers and Duties of
Guardians
1. To have the care and custody of the person
of his ward, and the management of his
estate, or the management of the estate
only, as the case may be (Sec. 1, Rule 96).
2. To pay the ward's just debts (Sec. 2, Rule
96).
3. To settle accounts, collect debts, and appear
in actions for ward (Sec. 3, Rule 96).
4. To manage the estate of his ward frugally
and without waste, and apply the income
and profits thereon to maintenance of the
ward (Sec. 4, Rule 96).
5. To join in an assent to a partition of real or
personal estate held by the ward jointly or
in common with others when authorized by
the court (Sec. 5, Rule 96).
6. To render to the court an inventory of the
estate of his ward within three (3) months
after his appointment, and annually after
such appointment an inventory and account,
the rendition of any of which may be
compelled upon the application of an
interested person (Sec. 7, Rule 96).
7. To initiate proceedings for securing an
inventory and appraisement whenever any
property of the ward not included in an
inventory already rendered is discovered, or
succeeded to, or acquired by the ward
within three (3) months after such
discovery, succession, or acquisition (Sec. 7,
Rule 96).
8. To present his account to the court for
settlement and allowance upon the
expiration of a year from the time of his
appointment, and as often thereafter as
may be required (Sec. 8, Rule 96).
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6.M.2. Conditions of the bond of the
guardian
a. To make and return to the court, within
three (3) months, a true and complete
inventory of all the estate, real and
personal, of his ward which shall come to
his possession or knowledge or to the
possession or knowledge of any other
person for him (Sec. 1, Rule 94);
b. To faithfully execute the duties of his trust
to manage and dispose of the estate
according to the Rules for the best interests
of the ward, and to provide for the proper
use, custody, and education of the ward
(Sec. 1, Rule 94) ;
c. To render a true and just account of all the
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and
of the management and disposition of the
same (Sec. 1, Rule 94) ;
d. To settle his accounts with the court and
deliver over all the estate remaining in his
hands to the person entitled thereto upon
expiration of his trust (Sec. 1, Rule 94) ;
e. To perform all orders of the court by him to
be performed (Sec. 1; Sec. 14, AM 03-02-05-
SC).
6.M.3. Rule on Guardianship on Minors
(A.M. No. 03-02-05-SC)
Applicability of Rule
The Rule shall apply to petitions for
guardianship over the person or property, or
both, of a minor (Sec. 1, A.M. No. 03-02-05-SC).
The Rule amends Rules 92 to 97 inclusive of the
Rules of Court on guardianship of minors.
Guardianship of incompetents who are not
minors shall continue to be under the
jurisdiction of the regular courts and governed
by the Rules of Court (Sec. 27, A.M. No. 03-02-05-
SC).
The Rule shall take effect on May 1, 2003
following its publication in a newspaper of
general circulation not later than April 15, 2003
(Sec. 28, A.M. No. 03-02-05-SC).
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Other rules in relation to Minors:
1. Rule on Examination of a Child Witness (A.M.
No. 00-4-07-SC), effective December 15,
2000.
2. Rule on Juveniles in Conflict with the Law
(A.M.No. 02-1-18-SC), effective April 15,
2002.
3. Rule on Commitment of Children (A.M. No.
02-1-19-SC), effective April 15, 2002.
4. Rule on Domestic and Inter-Country
Adoption (A.M. No. 02-6-02-SC), effective
August 22, 2002.
5. Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
(A.M. No. 02-11-10-SC), effective March 15,
2003.
6. Rule on Legal Separation (A.M. No. 02-11-11-
SC), effective March 15, 2003.
7. Rule on Provisional Orders (A.M. No. 02-11-
12-SC), effective March 15, 2003.
8. Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Minors (A.M.
No. 03-04-04-SC), effective May 15, 2003.
9. Rule on Violence against Women and Their
Children (A.M. No. 04-10-11-SC), effective
November 15, 2004 (following the enactment
of RA 9262, An Act Defining Violence against
Women and their Children, Providing for
Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes, or
Anti-VAWCI Law, effective March 27, 2004).
Who may petition for appointment of
guardian
1. The father and mother shall jointly exercise
legal guardianship over the person and
property of their unemancipated common
child without the necessity of a court
appointment. (Sec. 1, AM 03-02-05-SC).
2. On grounds authorized by law, any relative
or other person on behalf of a minor, or the
minor himself if 14 years of age or over,
3. Secretary of DSWD
4. Secretary of the DOH in the case of an
insane minor who needs to be
hospitalized (Sec. 1, AM 03-02-05-SC).
Where to file
A petition for guardianship over the person or
property, or both, of a minor may be filed in the
250 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
Family Court of the province or city where the
minor actually resides. If he resides in a foreign
country, the petition shall be filed with the
Family Court of the province or city where his
property or any part thereof is situated (Sec. 3,
AM 03-02-05-SC).
Grounds of petition
1. Death, continued absence, or incapacity of
his parents.
2. Suspension, deprivation or termination of
parental authority.
3. Remarriage of his surviving parent, if the
latter is found unsuitable to exercise
parental authority; or
4. When the best interest of the minor so
require (Sec. 4, AM 03-02-05-SC).
Qualifications of guardians
1. Moral character
2. Physical, mental and psychological
condition.
3. Financial status
4. Relationship of trust with the minor.
5. Availability to exercise the powers and
duties of a guardian for the full period of the
guardianship;
6. Lack of conflict of interest with the minor;
and
7. Ability to manage the property of the minor
(Sec. 4, A.M. No. 03-04-04-SC).
Order of preference in the appointment of
guardian or the person and/or property of
minor
1. The surviving grandparent and in case
several grandparents survive, the court shall
select any of them taking into account all
relevant considerations;
2. The oldest brother or sister of the minor
over 21 years of age, unless unfit or
disqualified;
3. The actual custodian of the minor over 21
years of age, unless unfit or disqualified;
and
4. Any other person, who in the sound
discretion of the court, would serve the best
interests of the minor (Sec. 6, AM 03-02-05-
SC).

Factors to consider in determining custody
1. Any extrajudicial agreement which the
parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
non-custodial parent on a regular basis,
except when there is an existing threat or
danger of physical, mental, sexual or
emotional violence which endangers the
safety and best interests of the minor.
2. The desire and ability of one parent to foster
an open and loving relationship between the
minor and the other parent.
3. The health, safety and welfare of the minor.
4. Any history of child or spousal abuse by the
person seeking custody or who has had any
filial relationship with the minor, including
anyone courting the parent.
5. The nature and frequency of contact with
both parents.
6. Habitual use of alcohol, dangerous drugs or
regulated substances;
7. Marital misconduct.
8. The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor; and
9. The preference of the minor over 7 years of
age and of sufficient discernment, unless
the parent chosen is unfit (Sec. 14, AM No.
03-04-04-SC).
The court shall order a social worker to conduct
a case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing. (Sec 9, A.M. NO.
03-02-05-SC)
The Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases: xxx b) Petitions for guardianship, custody
of children, habeas corpus in relation to the
latter; xxx (Section 5 (b), R.A. No. 8369 or Family
Courts of 1997)
A petition for guardianship over the person or
property, or both, of a minor may be filed in the
Family Court of the province or city where the
minor actually resides. If he resides in a foreign
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country, the petition shall be filed with the
Family Court of the province or city where his
property or any part thereof is situated. (Section
3, A.M. No. 03-02-05-SC, Rule on Guardianship of
Minors effective May 1, 2003)
On grounds authorized by law, any relative or
other person on behalf of a minor, or the minor
himself if fourteen years of age or over, may
petition the Family Court for the appointment of
a general guardian over the person or property,
or both, of such minor. The petition may also be
filed by the Secretary of Social Welfare and
Development and by the Secretary of Health in
the case of an insane minor who needs to be
hospitalized. (Section 2, A.M. No. 03-02-05-SC, Rule
on Guardianship of Minors effective May 1, 2003)
 Service of notice upon the minor if 14 years
of age or over or upon the incompetent is
jurisdictional. Without such notice, the
court acquired no jurisdiction to appoint a
guardian (Nery vs. Lorenzo, 44 SCRA 431
[1972]).
 The rules do not necessitate that creditors
of the minor or incompetent be likewise
identified and notified. The reason is simple:
because their presence is not essential to
the proceedings for appointment of a
guardian. They will only insist that the
supposed minor or incompetent is actually
capacitated to enter into contracts, so as to
preserve the validity of said contracts and
keep the supposed minor or incompetent
obligated to comply therewith. (Alamayri vs.
Pabale, G.R. No. 151243, April 30, 2008)
Administration of Property of a Minor
 Administration includes all acts for the
preservation of the property and the receipt
of fruits according to the natural purpose of
the thing. Any act of disposition or
alienation, or any reduction in the substance
of the patrimony of child, exceeds the limits
of administration. Thus, a father or mother,
as the natural guardian of the minor under
parental authority, does not have the power
to dispose or encumber the property of the
latter. Such power is granted by law only to
a judicial guardian of the ward‘s property
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and even then only with courts‘ prior resident, of the
approval secured in accordance with the province or city
proceedings set forth by the Rules of Court. where his property
(Neri vs. Heirs of Hadju Yusop Uy, G.R. No. or any part
194366, October 10, 2012) thereof is situated.
Legal When the The father and the
guardianship property of the mother shall
Conditions of the Bond of Guardian of a
of parents child under jointly exercise
Minor parental legal guardianship
authority is over the person
Before he enters upon the execution of his trust, worth two and property of
or letters of guardianship issue, an appointed thousand pesos their
guardian may be required to post a bond in such or less, the unemancipated
sum as the court shall determine and father or the common child
conditioned as follows: mother, without without the
the necessity of necessity of a
court court
a. To make and return to the court, within
appointment, appointment.
three months after the issuance of his shall be his legal
letters of guardianship, a true and complete guardian. When
Inventory of all the property, real and the property of
personal, of his ward which shall come to the child is
his possession or knowledge or to the worth more
possession or knowledge of any other than two
person in his behalf; thousand pesos,
b. To faithfully execute the duties of his trust, the father or the
mother shall be
to manage and dispose of the property
considered
according to this rule for the best interests guardian of the
of the ward, and to provide for his proper child's property
care, custody and education; Case Study Not required Required
c. To render a true and Just account of all the Manner No express At the discretion
property of the ward in his hands, and of all Hearing provision. of the court, the
proceeds or interest derived therefrom, and hearing on
of the management and disposition of the guardianship may
same, at the time designated by this rule be closed to the
and such other times as the court directs; public and the
records of the
and at the expiration of his trust, to settle
case shall not be
his accounts with the court and deliver and released without
pay over all the property, effects, and its approval
monies remaining in his hands, or due from Order of No order of Section 6 provides
him on such settlement, to the person preference preference. for order of
lawfully entitled thereto; and preference which
d. To perform all orders of the court and such may be observed
other duties as may be required by law. as far as
practicable.
Amendments to Provisions of Rules of Qualifications No express Section 5 provides
of Guardian provision. for qualifications
Court
of guardians.
Grounds of Minority or Section 4 provides
Rules of Court A.M. NO. 03-02-05 petition incompetency for specific
Scope Minors and Minors. grounds for the
Incompetents appointment of a
Venue RTC or MTC Family Court of guardian over the
the province or person or
city where the property, or both,
minor actually of a minor
resides or if non-

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6.N. WRIT OF HABEAS CORPUS
 Habeas corpus is a writ directed to the
person detaining another, commanding him
to produce the body of the prisoner at a
designated time and place, with the day and
cause of his capture and detention, to do,
submit to, and receive whatsoever the court
or judge awarding the writ shall consider in
that behalf. (Ilusorio vs. Bildner, G.R. No.
139789, 332 SCRA 169, May 12, 2000)
 A petition for the issuance of a writ of
habeas corpus is a special proceeding
governed by Rule 102 of the Rules of Court,
as amended. In Ex Parte Billings, it was held
that habeas corpus is that of a civil
proceeding in character. It seeks the
enforcement of civil rights. Resorting to the
writ is not to inquire into the criminal act of
which the complaint is made, but into the
right of liberty, notwithstanding the act and
the immediate purpose to be served is relief
from illegal restraint. The rule applies even
when instituted to arrest a criminal
prosecution and secure freedom. When a
prisoner petitions for a writ of habeas
corpus, he thereby commences a suit and
prosecutes a case in that court. (Mangila vs.
Pangilinan, G.R. No. 160739, 701 SCRA 355, July
17, 2013 quoting Caballes vs. Court of Appeals,
G.R. No. 163108, 452 SCRA 312, February 23,
2005)
 Habeas corpus is not in the nature of a writ
of error; nor intended as substitute for the
trial court‘s function. It cannot take the
place of appeal, certiorari or writ of error.
The writ cannot be used to investigate and
consider questions of error that might be
raised relating to procedure or on the
merits. The inquiry in a habeas corpus
proceeding is addressed to the question of
whether the proceedings and the assailed
order are, for any reason, null and void. The
writ is not ordinarily granted where the law
provides for other remedies in the regular
course, and in the absence of exceptional
circumstances. Moreover, habeas corpus
should not be granted in advance of trial.
The orderly course of trial must be pursued
and the usual remedies exhausted before
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resorting to the writ where exceptional
circumstances are extant. In another case, it
was held that habeas corpus cannot be
issued as a writ of error or as a means of
reviewing errors of law and irregularities not
involving the questions of jurisdiction
occurring during the course of the trial,
subject to the caveat that constitutional
safeguards of human life and liberty must
be preserved, and not destroyed. It has also
been held that where restraint is under legal
process, mere errors and irregularities,
which do not render the proceedings void,
are not grounds for relief by habeas corpus
because in such cases, the restraint is not
illegal. (Mangila vs. Pangilinan, G.R. No. 160739,
701 SCRA 355, July 17, 2013 quoting Caballes vs.
Court of Appeals, G.R. No. 163108, 452 SCRA
312, February 23, 2005)
 Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the
judge in order that the cause of his
detention may be inquired into and his
statements final. The writ of habeas corpus
does not act upon the prisoner who seeks
relief, but upon the person who holds him in
what is alleged to be the unlawful authority.
Hence, the only parties before the court are
the petitioner (prisoner) and the person
holding the petitioner in custody, and the
only question to be resolved is whether the
custodian has authority to deprive the
petitioner of his liberty. The writ may be
denied if the petitioner fails to show facts
that he is entitled thereto ex meritojusticias.
(Mangila vs. Pangilinan, G.R. No. 160739, 701
SCRA 355, July 17, 2013 quoting Caballes vs.
Court of Appeals, G.R. No. 163108, 452 SCRA
312, February 23, 2005)
 It is a high prerogative, common-law writ, of
ancient origin, the great object of which is
the liberation of those who may be
imprisoned without sufficient cause. It is
issued when one is deprived of liberty or is
wrongfully prevented from exercising legal
custody over another person. (Ilusorio vs.
Bildner, G.R. No. 139789, 332 SCRA 169, May 12,
2000)
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6.N.1. Contents of Petition
Application for the writ shall be by petition
signed and verified either by the party for whose
relief it is intended, or by some person on his
behalf, and shall set forth:
a. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
b. The officer or name of the person by whom
he is so imprisoned or restrained; or, if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
c. The place where he is so imprisoned or
restrained, if known;
d. A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency of
the remedy; or, if the imprisonment or
restraint is without any legal authority, such
fact shall appear (Rule 102, Sec. 3).
6.N.2. Contents of the Return
When the person to be produced is imprisoned
or restrained by an officer, the person who
makes the return shall state therein, and in
other cases the person in whose custody the
prisoner is found shall state, in writing to the
court or judge before whom the writ is
returnable, plainly and unequivocably:
a. Whether he has or has not the party in his
custody or power, or under restraint
b. If he has the party in his custody or power,
or under restraint, the authority and the
true and whole cause thereof, set forth at
large, with a copy of the writ, order,
execution, or other process, if any, upon
which the party is held.
c. If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
of which he cannot, without danger, be
brought before the court or judge;
d. If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
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another, particularly to whom, at what time,
for what cause, and by what authority such
transfer was made (Sec. 10).
6.N.3. Distinguish peremptory writ from
preliminary citation
Peremptory Writ Preliminary Citation
Unconditionally Requires the respondent
commands the to appear and show
respondent to have the cause why the
body of the detained peremptory writ should
person before the court not be granted (Lee Yick
at a time and place Hon vs. Collector of
therein specified; (Lee Customs, 41 Phil. 563)
Yick Hon vs. Collector of
Customs, 41 Phil. 563)
6.N.4. When not proper/applicable:
Instances when the writ of habeas corpus is not
proper are:
a. For asserting or vindicating denial of right to
bail (Galvez vs. CA, 237 SCRA 685);
b. For correcting errors in appreciation of facts
or appreciation of law – where the trial court
had no jurisdiction over the cause, over the
person of the accused, and to impose the
penalty provided for by law, the mistake
committed by the trial court, in the
appreciation of the facts and/or in the
appreciation of the law cannot be corrected
by habeas corpus (Sotto vs. Director of Prisons,
May 30, 1962);
c. Once a person detained is duly charged in
court, he may no longer file a petition
for habeas corpus. His remedy would be to
quash the information or warrant (Rodriguez
vs. Judge Bonifacio, Nov. 26, 2000).
6.N.5. When writ disallowed/discharged
1. If it appears that the person alleged to be
restrained of his liberty is in the custody of
an officer under process issued by a court or
judge or by virtue of a judgment or order of
a court of record, and that the court or
judge had jurisdiction to issue the process,
render the judgment, or make the order,
2. if the jurisdiction to issue the process,
render the judgment, or make the order
appears after the writ is allowed, the person
shall not be discharged by reason of any

informality or defect in the process,
judgment, or order.
3. If the person under custody is charged with
or convicted of an offense in the Philippines,
or of a person suffering imprisonment under
lawful judgment (Rule 102, Sec. 4).
6.N.6. Distinguish from Amparo and
Habeas Data
When Habeas Corpus is not Available:
 As a general rule, the writ of habeas corpus
will not issue where the person alleged to be
restrained of his liberty in custody of an
officer under a process issued by the court
which jurisdiction to do so. (Serapio vs.
Sandiganbayan, G.R. No. 148468, 396 SCRA 443,
January 28, 2003)
 Restraint that is lawful and pursuant to a
court process cannot be inquired into
through habeas corpus. (Mangila vs.
Pangilinan, 701 SCRA 355, G.R. No. 160739, July
17, 2013)
 In exceptional circumstances, habeas corpus
may be granted by the courts even when
the person concerned is detained pursuant
to a valid arrest or his voluntary surrender,
for this writ of liberty is recognized as "the
fundamental instrument for safeguarding
individual freedom against arbitrary and
lawless state action" due to "its ability to cut
through barriers of form and procedural
mazes." Thus, in previous cases, we issued
the writ where the deprivation of liberty,
while initially valid under the law, had later
become invalid, and even though the
persons praying for its issuance were not
completely deprived of their liberty. (Serapio
vs. Sandiganbayan, G.R. No. 148468, 396 SCRA
443, January 28, 2003)
 A release that renders a petition for a writ of
habeas corpus moot and academic must be
one which is free from involuntary
restraints. Where a person continues to be
unlawfully denied one or more of his
constitutional freedoms, where there is
present a denial of due process, where the
restraints are not merely involuntary but
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appear to be unnecessary, and where a
deprivation of freedom originally valid has,
in the light of subsequent developments,
become arbitrary, the person concerned or
those applying in his behalf may still avail
themselves of the privilege of the writ.
(Moncupa vs. Enrile, G.R. No. L-63345, January
30, 1986)
 And, lastly, it was clear that under Section
5,16 Rule 112 of the Revised Rules of
Criminal Procedure, the resolution of the
investigating judge was not final but was
still subject to the review by the public
prosecutor who had the power to order the
release of the detainee if no probable cause
should beultimately found against her. In
the context of the rule, Mangilahad no need
to seek the issuance of the writ of habeas
corpus to secure her release from detention.
Her proper recourse was to bring the
supposed irregularities attending the
conduct of the preliminary investigation and
the issuance of the warrant for her arrest to
the attention of the City Prosecutor, who
had been meanwhile given the most direct
access to the entire records of the case,
including the warrant of arrest, following
Judge Pangilinan‘s transmittal of them to the
City Prosecutor for appropriate action. We
agree with the CA, therefore, that the writ
of habeas corpus could not be used as a
substitute for another available remedy.
(Mangila vs. Pangilinan, G.R. No. 160739, 701
SCRA 355, July 17, 2013)
 Moreover, a petition for habeas corpus is
not the appropriate remedy for asserting
one's right to bail. It cannot be availed of
where accused is entitled to bail not as a
matter of right but on the discretion of the
court and the latter has not abused such
discretion in refusing to grant bail, or has
not even exercised said discretion. The
proper recourse is to file an application for
bail with the court where the criminal case is
pending and to allow hearings thereon to
proceed. (Serapio vs. Sandiganbayan, G.R. No.
148468, 396 SCRA 443, January 28, 2003)
 No court is empowered as a judicial
authority to compel a husband to live with
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his wife. Coverture cannot be enforced by
compulsion of a writ of habeas corpus
carried out by sheriffs or by any other
mesne process. That is a matter beyond
judicial authority and is best left to the man
and woman‘s free choice. (Ilusorio vs. Bildner,
G.R. No. 139789, 332 SCRA 169, May 12, 2000)
As a Post-Conviction Remedy
 The writ of habeas corpus applies to all
cases of illegal confinement or detention in
which individuals are deprived of liberty. The
writ may not be availed of when the person
in custody is under judicial process or by
virtue of a valid judgment.
However, as a post-conviction remedy, it
may be allowed when, as a consequence of
a judicial proceeding, any of the following
exceptional circumstances is attendant: (1)
there has been a deprivation of a
constitutional right resulting in the restraint
of a person; (2) the court had no jurisdiction
to impose the sentence; or (3) the imposed
penalty has been excessive, thus voiding the
sentence as to such excess. (Go vs. Dimagiba,
G.R. No. 151876, June 21, 2005; Andal v. People,
307 SCRA 605 [1999])
 In Evangelista vs. Sistoza (G.R. No. 143881,
August 9, 2001), the accused filed a petition
for habeas corpus to secure his release from
prison, due to the amendment of PD 1866
by RA 8249, reducing the penalty for illegal
possession of low powered firearms -- from
reclusion temporal in its maximum period to
reclusion perpetua, to prisioncorrecccional in
its maximum period.The court granted the
petition, as he has already served 9 years in
prison, more than the maximum term of his
imprisonment for robbery. He need not
serve anymore his sentence of 18 years of
reclusion temporal as minimum to reclusion
perpetua as maximum for illegal possession
of firearm, in view of said amendment and
the ruling in People vs. Ladjaalam. (G.R. Nos.
136149-51, September 19, 2000).
6.N.7. Rules on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of
Minors (AM No.03-04-04-SC)
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1. A verified petition for the rightful custody of
a minor may be filed by any person claiming
such right. The petition shall be filed with
the Family Court of the province or city
where the petitioner resides or where the
minor may be found.
2. After trial, the court shall render judgment
awarding custody of the minor to the proper
party considering the best interests of the
minor.
3. However, if it appears that both parties are
unfit to have the care and custody of the
minor, the court may designate either the
paternal or maternal grandparent of the
minor or his oldest brother or sister, or any
reputable person to take charge of such
minor, or commit him to any suitable home
for children.
4. The court may issue any order that is just
and reasonable permitting the parent who is
deprived of the care and custody of the
minor to visit or have temporary custody.
Jurisdiction of the Court of Appeals
 There is nothing in R.A. 8369 which revoked
the Court of Appeals‘ jurisdiction to issue
writs of habeas corpus involving the custody
of minors. (In the Matter of Application for the
Issuance of a Writ of Habeas Corpus: Thornton
vs. Thornton, G.R. No. 154598, August 16, 2004)
In fact, the Court of Appeals and Supreme
Court have concurrent jurisdiction with
family courts in habeas corpus cases where
the custody of minors is involved. (Madriňan
vs. Madriňan, G.R. No. 159374, July 12, 2007)
6.O. WRIT OF AMPARO (AM No. 07-9-12-SC)
The petition for a writ of amparo is a remedy
available to any person whose right to life,
liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity. The writ shall cover
extralegal killings and enforced disappearances
or threats thereof. (Section 1, Rule on the Writ of
Amparo)
6.O.1. Coverage
―Extralegal Killings‖ – killings committed without
due process of law, i.e., without legal
safeguards or judicial proceedings (Secretary of

National Defense v. Manalo, G.R. No. 180906, Oct. 7,
2008).
―Enforced Disappearances‖ – attended by the
following characteristics: an arrest, detention or
abduction of a person by a government official
or organized groups or private individuals acting
with the direct or indirect acquiescence of the
government; the refusal of the State to disclose
the fate or whereabouts of the person
concerned or a refusal to acknowledge the
deprivation of liberty which places such persons
outside the protection of law (Secretary of
National Defense v. Manalo, G.R. No. 180906, Oct. 7,
2008).
Threats of extralegal killings and/or enforced
disappearances.
6.O.2. Distinguish from Habeas Corpus and
Habeas Data
6.O.3. Difference between amparo and
search warrant
The production order under the Amparo Rule
should not be confused with a search warrant or
law enforcement under Art. III, Section 2 of the
Constitution. The Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of
the government from the demand of the people
as such respondents. Instead, the amparo
production order may be limited to the
production of documents or things under Section
1, Rule 27 of the Rules of Civil Procedure
(Secretary of National Defense vs. Manalo, G.R. No.
180906, October 7, 2008)
6.O.4. Who may file
The petition may be filed by the aggrieved or by
any qualified person or entity in the following
order:
a. Any member of the immediate family,
namely: the spouse children and parents of
the aggrieved party,
b. Any ascendant, descendant or collateral
relative of the aggrieved within the fourth
civil degree of consanguinity or affinity, in
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default of those in the preceding paragraph,
or
c. Any concerned citizen, organization,
association or institution, if there is no
known member if the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. In the same way, the
filling of the petition by an authorized party shall
suspend the right of all others in the order
established above (Sec. 2).
Basis: As a derivation from the power of the
Supreme Court to promulgate rules concerning
the protection and enforcement of constitutional
rights and procedures in all courts. Section 5
(5), Article VIII, 1987 Constitution.
Jurisprudence on Writ of Amparo.
 As a final note, we emphasize that our ROLE
in a writ of Amparo proceeding is merely to
determine whether an enforced
disappearance has taken place; to
determine who is responsible or
accountable; and to define and impose the
appropriate remedies to address the
disappearance. (Burgos vs. Esperon, G.R. No.
178497, February 4, 2014)
 The writ of Amparo serves both preventive
and curative roles in addressing the problem
of extralegal killings and enforced
disappearances. It is preventive in that it
breaks the expectation of impunity in the
commission of these offenses; it is curative
in that it facilitates the subsequent
punishment of perpetrators as it will
inevitably yield leads to subsequent
investigation and action. In the long run, the
goal of both the preventive and curative
roles is to deter the further commission of
extralegal killings and enforced
disappearances. (The Secretary of National
Defense vs. Manalo, G.R. No. 180906, October 7,
2008)
 The writ of amparo was originally conceived
as a response to the extraordinary rise in
the number of killings and enforced
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disappearances, and to the perceived lack of
available and effective remedies to address
these extraordinary concerns. It is intended
to address violations of or threats to the
rights to life, liberty or security, as an
extraordinary and independent remedy
beyond those available under the prevailing
Rules, or as a remedy supplemental to these
Rules. (Tapuz vs. del Rosario, G.R. No. 182484,
June 17, 2008)
 As the Amparo Rule was intended to
address the intractable problem of
"extralegal killings" and "enforced
disappearances," its coverage, in its present
form, is confined to these two instances or
to threats thereof. "Extralegal killings" are
"killings committed without due process of
law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced
disappearances" are "attended by the
following characteristics: an arrest,
detention or abduction of a person by a
government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government;
the refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
the protection of law. (Castillo vs. Cruz, G.R.
No. 182165, November 25, 2009 quoting
Secretary of National Defense vs. Manalo, G.R.
No. 180906, 568 SCRA 1, October 7, 2008)
 Extralegal killings" are "killings committed
without due process of law, i.e., without
legal safeguards or judicial proceedings."
(Castillo vs. Cruz, G.R. No. 182165, November
25, 2009 quoting Secretary of National Defense
vs. Manalo, G.R. No. 180906, 568 SCRA 1,
October 7, 2008)
 The Convention defines enforced
disappearance as "the arrest, detention,
abduction or any other form of deprivation
of liberty by agents of the State or by
persons or groups of persons acting with the
authorization, support or acquiescence of
the State, followed by a refusal to
acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of
the disappeared person, which place such a
person outside the protection of the law."
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(Razon vs. Tagitis, G.R. No. 182498, December
3, 2009)
Under this definition, the elements that
constitute enforced disappearance are
essentially fourfold:
a. arrest, detention, abduction or any form of
deprivation of liberty;
b. carried out by agents of the State or
persons or groups of persons acting with the
authorization, support or acquiescence of
the State;
c. followed by a refusal to acknowledge the
detention, or a concealment of the fate of
the disappeared person; and
d. placement of the disappeared person
outside the protection of the law. (Razon vs.
Tagitis, G.R. No. 182498, December 3, 2009)
 Ironic as it seems, but part and parcel of the
reason why the petitioner was not able to
adduce substantial evidence proving her
allegations of government complicity in her
abduction and torture, may be attributed to
the incomplete and one-sided investigations
conducted by the government itself. This
"awkward" situation, wherein the very
persons alleged to be involved in an
enforced disappearance or extralegal killing
are, at the same time, the very ones tasked
by law to investigate the matter, is a unique
characteristic of these proceedings and is
the main source of the "evidentiary
difficulties" faced by any petitioner in any
amparo case.
Cognizant of this situation, however, the
Amparo Rule placed a potent safeguard—
requiring the "respondent who is a public official
or employee" to prove that no less than
"extraordinary diligence as required by
applicable laws, rules and regulations was
observed in the performance of duty." Thus,
unless and until any of the public respondents is
able to show to the satisfaction of the amparo
court that extraordinary diligence has been
observed in their investigations, they cannot
shed the allegations of responsibility despite the
prevailing scarcity of evidence to that effect.
(Roxas vs. Arroyo, G.R. No. 189155, September 7,
2010)

Allegations, Circumstances concerning the
issuance of the Writ of Amparo
 The writ shall issue if the Court is
preliminarily satisfied with the prima facie
existence of the ultimate facts determinable
from the supporting affidavits that detail the
circumstances of how and to what extent a
threat to or violation of the rights to life,
liberty and security of the aggrieved party
was or is being committed. (Tapuz vs. del
Rosario, G.R. No. 182484, June 17, 2008)
 The framers of the Amparo Rule never
intended Section 5(c) to be complete in
every detail in stating the threatened or
actual violation of a victim‘s rights. As in any
other initiatory pleading, the pleader must of
course state the ultimate facts constituting
the cause of action, omitting the evidentiary
details. In an Amparo petition, however, this
requirement must be read in light of the
nature and purpose of the proceeding,
which addresses a situation of uncertainty;
the petitioner may not be able to describe
with certainty how the victim exactly
disappeared, or who actually acted to
kidnap, abduct or arrest him or her, or
where the victim is detained, because these
information may purposely be hidden or
covered up by those who caused the
disappearance. In this type of situation, to
require the level of specificity, detail and
precision that the petitioners apparently
want to read into the Amparo Rule is to
make this Rule a token gesture of judicial
concern for violations of the constitutional
rights to life, liberty and security. (Razon vs.
Tagitis, G.R. No. 182498, December 3, 2009)
 It must be stated at the outset that the use
by the petitioner of the doctrine of
command responsibility as the justification
in impleading the public respondents in her
amparo petition, is legally inaccurate, if not
incorrect. The doctrine of command
responsibility is a rule of substantive law
that establishes liability and, by this account,
cannot be a proper legal basis to implead a
party-respondent in an amparo petition.
(Roxas vs. Arroyo, G.R. No. 189155, September
7, 2010)
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 Responsibility refers to the extent the actors
have been established by substantial
evidence to have participated in whatever
way, by action or omission, in an enforced
disappearance, as a measure of the
remedies this Court shall craft, among them,
the directive to file the appropriate criminal
and civil cases against the responsible
parties in the proper courts. (Razon vs.
Tagitis, G.R. No. 182498, December 3, 2009)
 Accountability, on the other hand, refers to
the measure of remedies that should be
addressed to those who exhibited
involvement in the enforced disappearance
without bringing the level of their complicity
to the level of responsibility defined above;
or who are imputed with knowledge relating
to the enforced disappearance and who
carry the burden of disclosure; or those who
carry, but have failed to discharge, the
burden of extraordinary diligence in the
investigation of the enforced disappearance.
(Razon vs. Tagitis, G.R. No. 182498, December
3, 2009)
 It must be clarified, however, that the
inapplicability of the doctrine of command
responsibility in an amparo proceeding does
not, by any measure, preclude impleading
military or police commanders on the
ground that the complained acts in the
petition were committed with their direct or
indirect acquiescence. In which case,
commanders may be impleaded—not
actually on the basis of command
responsibility—but rather on the ground of
their responsibility, or at least accountability.
(Rubrico vs. Arroyo, G.R. No. 183871, February
18, 2010)
6.O.5. Contents of the Return
Within five (5) working days after service of the
writ, the respondent shall file a verified written
return together with supporting affidavits which
shall, among other things, contain the following:
1. The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
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of the aggrieved party, through any act or
omission;
2. The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person or persons responsible for the threat,
act or omission;
3. All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party; and
4. If the respondent is a public official or
employee, the return shall further state the
actions that have been or will still be taken:
a. To verify the identity of the aggrieved
party;
b. To recover and preserve evidence
related to the death or disappearance of
the person identified in the petition
which may aid in the prosecution of the
person or persons responsible.
c. To identify witnesses and obtain
statements from them concerning the
death or disappearance;
d. To determine the cause, manner.
Location and tome of death or
disappearance as well as any pattern or
practice that may have brought about
the death or disappearance;
e. To identify and apprehend the person or
persons involved in the death or
disappearance; and
f. To bring the suspected offenders before
a competent court.
Note: The return shall also contain other
matters relevant to the investigation, its
resolution and the prosecution of the case.
6.O.6. Effect of Failure to File Return
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte (Sec. 12).
6.O.7. Omnibus Waiver Rule
The respondent must plead all his defenses in
the return. Failure to do so shall operate as a
waiver of such defenses not therein pleaded
(Sec. 10).
6.O.8. Procedure for Hearing
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The hearing on the petition shall be summary.
The hearing shall be from day to day until
completed and shall be given the same priority
as petitions for habeas corpus. The court justice
or judge may call for a preliminary conference to
simplify the issues and determine the possibility
of obtaining stipulations and admissions from
the parties. The hearing shall be from day to
day until completed and given the same priority
as petitions for habeas corpus. (Sec 13).
6.O.9. Institution of a Separate Action
The petition for a writ of amparo shall not
preclude the filing of separate criminal, civil or
administrative actions (Sec 21).
6.O.10. Effect of Filing a Criminal Action
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available by
motion in the criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of amparo (Sec 22).
6.O.11. Consolidation
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of amparo, the latter shall be consolidated
with the criminal action. After the consolidation,
the procedure under this Rule shall continue to
apply to the disposition of the reliefs in the
petition (Sec 23).
6.O.12. Interim Reliefs Available to
Petitioner and Respondent
Petitioner Respondent
Temporary protection Available
order – the court, justice
or judge, upon motion or
motuproprio, may order

that the petitioner or the
aggrieved party and any
member of the immediate
family be protected in a
government agency or by
an accredited person or
private institution capable
of keeping and securing
their safety. If the
petitioner is
organization, association or
institution referred to in
Section 3 (c) of this Rule,
the protection may be
extended to the officers
involved.
Inspection order – the
court, justice or judge,
upon verified motion and
after due hearing, may
order any person in
possession or control of a
designated land or other
property, to permit entry
for the purpose
inspecting, measuring,
surveying,
photographing the
property or any relevant
object or operation
thereon.
Production order – the
court, justice, upon verified
motion and after due
hearing, may order any
person in possession,
custody or control of any
designated documents,
papers, books, accounts,
letters, photographs,
objects if tangible things,
or objects in digitized or
electronic form, which
constitute or contain
evidence relevant to the
petition or the return, to
produce and permit their
inspection, copying
photographing by or in
behalf of the movant.
Witness Protection
Order – The court, justice
or judge, upon motion or
motu proprio, may refer
the witnesses to the
Department of Justice for
admission to the Witness
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Protection, Security and
Benefit Program, pursuant
to Republic Act No. 6981.
The court, justice or judge
may also refer the
witnesses to other
government agencies, or to
accredited persons or
private institutions capable
an of keeping and securing
their safety (Sec. 14).
6.O.13. Quantum of Proof in Application
For Issuance of Writ of Amparo
The parties shall establish their claims by
Available Available
substantial evidence.
The respondent who is a private individual or
entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
duty.
of
The respondent who is a public official or
or
employee must prove that extraordinary
diligence as required by applicable laws, rules
and regulations was observed in the
performance of duty.
Available Available
The respondent public official or employee
cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability. (Sec. 17, 18)
6.P. WRIT OF HABEAS DATA (A.M. No. 08-1-
16-SC)
The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty
or security is violated or threatened by an
unlawful act or omission of a public official or
employee, or of a private individual or entity
engaged in the gathering, collecting or storing of
or
data or information regarding the person,
family, home and correspondence of the
Available aggrieved party. (Sec. 1)
6.P.1. Scope of Writ
The writ in general is designed to safeguard
individual freedom from abuse in the
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information age by means of an individual
complaint presented in a constitutional court.
Specially, it protects the image, privacy, honor,
information, self-determination, and freedom of
information of a person.
6.P.2. Writ, When Available
The remedy is available to any person whose
right to privacy in life, liberty or security is
violated or threatened by an unlawful act or
omission of a public official or employee, or of a
private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party.
6.P.3. Distinguish from habeas corpus and
amparo
6.P.4. Who may file
Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of
extralegal killings and enforced disappearances,
the petition may be filed by:
a. Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and parents; or
b. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph (Sec. 2).
6.P.5. Contents of the Petition
1. Personal circumstances of the petitioner and
respondent
2. The manner the right of privacy is violated
or threatened,
3. Actions and recourses taken by the
petitioner to secure the data or information,
4. Location of the files, registers or database,
the government office, person in charge, in
possession and control of the data, if
known.
5. Reliefs prayed for, and
6. Other relevant reliefs as are just and
equitable (Sec. 6).
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6.P.6. Contents of Return
a. The lawful defenses such as national
security, state secrets, privileged
communication, confidentiality of the source
of information of media and others
b. In case of respondent in charge, possession
or control of the data or information subject
of the petition:
1. The steps of action taken by the
respondent to ensure the security and
confidentiality of the data or
information.
2. The currency and accuracy of the data
of information held.
Other allegations relevant to the resolution of
the proceeding (Sec. 10).
A disclosure of the data or information about the
petitioner, the nature of such data or
information and the purpose for its collection.
6.P.7. Instances when Petition be Heard in
Chambers
A hearing in members may be conducted where
the respondent invokes the defense that the
release of the data or information in question
shall compromise national security or state
secrets or when the data or information cannot
be divulged to the public due to its nature or
privileged character (Sec. 12).
6.P.8. Consolidation
a. When the criminal action is filed subsequent
to the filing of a petition for the writ, the
latter shall be consolidated with the criminal
action.
b. When a criminal action and a separate civil
action are filed subsequent to a petition for
a writ of habeas data, the petition shall be
consolidated with the criminal action.
c. When there is consolidation, the procedure
under the Rule on the Writ of Habeas Data
shall govern the disposition of the reliefs
under the writ (Sec. 21).
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6.P.9. Effect of Filing of a Criminal Action Jurisprudence on Writ of Habeas Data

When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available to
an aggrieved party by motion in the criminal
case (Sec. 22).
6.P.10. Institution of a Separate Action
 Oddly, respondents also seek the issuance
of a writ of habeas data when it is not even
alleged that petitioners are gathering,
collecting or storing data or information
regarding their person, family, home and
correspondence. (Castillo vs. Cruz, G.R. No.
182165, November 25, 2009)

The filing of a petition for the writ of habeas
data shall not preclude the filing of separate
criminal, civil or administrative actions (Sec. 20).
6.P.11. Quantum of Proof in Application
for Issuance of Writ of Habeas Data.
 The court shall render judgment within ten
(10) days from the time the petition is
submitted for decision. If the allegations in
the petition are proven by substantial
evidence, the court shall enjoin the act
complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information and grant other relevant
reliefs as may be just and equitable;
otherwise, the privilege of the writ shall be
denied (Sec. 16).
 The required standard of proof- substantial
evidence – Speaks of the clear intent of the
Rule to have the equivalent of an
administrative proceeding, albeit, judicially
conducted, in resolving amparo petitions.
(Gen. Yano, et al vs. Sanchez and Medina GR.
No. 186640, February 11, 2010)
 These allegations obviously lack what the
Rule on Writ of Habeas Data requires as a
minimum, thus rendering the petition fatally
deficient. Specifically, we see no concrete
allegations of unjustified or unlawful
violation of the right to privacy related to
the right to life, liberty or security. The
petition likewise has not alleged, much less
demonstrated, any need for information
under the control of police authorities other
than those it has already set forth as
integral annexes. The necessity or
justification for the issuance of the writ,
based on the insufficiency of previous
efforts made to secure information, has not
also been shown. In sum, the prayer for the
issuance of a writ of habeas data is nothing
more than the "fishing expedition" that this
Court - in the course of drafting the Rule on
habeas data - had in mind in defining what
the purpose of a writ of habeas data is not.
In these lights, the outright denial of the
petition for the issuance of the writ of
habeas data is fully in order. (Tapuz vs. del
Rosario, G.R. No. 182484, June 17, 2008)

Distinctions between Writ of Habeas Corpus, Writ of Amparo and Writ of Habeas Data

Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

Purpose A remedy available to any
person which covers cases of
illegal confinement or
detention by which any person
is deprived of his liberty, or by
which the rightful custody of
any person is withheld from
the person entitled thereto.
A remedy available to any
person whose right to life,
liberty and security is violated
or threatened with violation by
an unlawful act or omission of
a public official or employee, or
of a private individual or entity.
The writ covers extrajudicial
A remedy available to any
person whose right to
privacy in life, liberty or
security is violated or
threatened by an unlawful
act or omission of a public
official or employee, or of a
private individual or entity

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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

killings and enforced engaged in the gathering,
disappearances or threats collecting or storing of data
thereof. or information regarding the
person, family, home and
correspondence of the
aggrieved party.
Who may file By the party for whose relief it In Order In Order
is intended, or by some
person on his behalf. 1. Any member of the 1. Any member of the
immediate family: spouse, immediate family:
children and parents of spouse, children and
the aggrieved party; parents of the
aggrieved party;
2. Any ascendant,
descendant or collateral 2. Any ascendant,
relative of aggrieved party descendant or collateral
within the 4th civil degree relative of aggrieved
of consanguinity or party within the 4th civil
affinity; degree of consanguinity
or affinity.
3. Any concerned citizen,
orgnization, association or
institution, if no known
member of immediate
family.
Where to file RTC, enforceable within its RTC, Sandiganbayan, CA, SC; RTC, SC, CA,
area of jurisdiction. Sandiganbayan;
Writ is enforceable anywhere
CA or SC, enforceable in the Philippines. Writ is also enforceable
anywhere in the Philippines. anywhere in the Philippines.

Fees Petitioner is exempted to pay Indigent petitioner is

docket and other lawful fees.
When issued Forthwith when a petition Immediately if on its face it
therefor is presented and it ought to be issued;
appears that the writ ought to
issue. Served immediately;
Summary hearing set not later
than seven (7) days from date
of issuance.
Contents of a. That the person in whose a. Personal circumstances of
verified petition behalf the application is petitioner and of
made is imprisoned or respondent responsible for
restrained of his liberty; the threat, act or
omission;
b. The officer or name of the
person by whom he is so b. Violated or threatened
imprisoned or restrained; right to life, liberty and
or, if both are unknown or security of aggrieved
uncertain, such officer or party, and how committed
person may be described with attendance
by an circumstances detailed
assumed appellation, and in supporting affidavits;
the person who is served
with the writ shall be c. Investigation conducted,
exempted to pay docket and
other lawful fees.
Immediately if on its face it
ought to be issued;
Served within 3 days from
issuance;
Summary hearing set not
later than ten (10) work
days from date of issuance.
a. Personal circumstances
of petitioner and
respondent;
b. The manner the right to
privacy is violated or
threatened and how it
affects the right to life,
liberty or security of
aggrieved party;
c. Actions and recourses
taken by petitioner to
secure the data or
information;

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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

deemed the person specifying names, d. Location of files,
intended; personal circumstances registers or databases,
and addresses of government office, and
c. The place where he is so investigating authority or the person in charge, in
imprisoned or restrained, individuals, as well as possession or in control
if known; manner and conduct of of the data or
investigation together with information, if known;
d. A copy of the any report;
commitment or cause of e. Reliefs prayed for,
detention of such person, d. Actions and recourses which may include the
if it can be procured taken by petitioner to updating, rectification,
without impairing the determine the fate or suppression or
efficiency of the remedy; whereabouts of aggrieved destruction of the
or, if the imprisonment or party and identity of database or information
restraint is without any person responsible for the or files kept by
legal authority, such fact threat, act or omission; respondent;
shall appear and
f. In case of threats, relief
e. The relief prayed for. may include a prayer for
an order enjoining the
f. May include general act complained of; and
prayer for other just and
equitable reliefs. g. Such other reliefs as are
just and equitable.
Contents of a. Whether he has or has a. Lawful defenses; a. Lawful defenses such
return not the party in his as national security,
custody or power, or b. Steps or actions taken state secrets, privileged
under restraint; to determine whereabouts communications,
of aggrieved party; confidentiality of source
b. If he has the party in his of information;
custody or power, or c. All relevant information
under restraint, the pertaining to threat, act or b. If respondent is in
authority and the true omission against charge, in possession or
and whole cause thereof, aggrieved party; in control of the data or
set forth at large, with a information subject of
copy of the writ, order, d. If respondent is a public the petition:
execution, or other official or employee,
process, if any, upon further state: 1. Disclosure of
which the party is held; data/info about
1. verify the identity of petitioner, nature of
c. If the party is in his aggrieved; data/info, purpose
custody or power or is of collection;
restrained by him, and is 2. recover and preserve
not produced, particularly evidence related to 2. Steps or actions
the nature and gravity of death or taken by respondent
the sickness or infirmity of disappearance of to ensure security
such party by reason of person identified in and confidentiality
which he cannot, without petition; of data or
danger, be brought information;
before the court or judge; 3. identify witnesses and
their statements; 3. Currency and
d. If he has had the party in accuracy of data or
his custody or power, or information;
under restraint, and has 4. determine cause,
transferred such custody manner, location and c. Other allegations
or restraint to another, time of death or relevant to resolution of
particularly to whom, at disappearance as well the proceedings.

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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

what time, for what as pattern or practice;
cause, and by what A general denial of the
authority such transfer 5. identify and allegations in the petition is
was made. apprehend person/s not allowed.
involved in the
death/disappearance;

6. bring suspected
offenders before a
competent court.

A general denial of the

allegations in the petition is not
allowed.
Effects of failure -- The court, justice or judge The court, justice or judge
to file return shall proceed to hear the shall proceed to hear the
petition ex parte. petition ex parte, granting
the petitioner such relief as
the petition may warrant
unless the court in its
discretion requires petitioner
to submit evidence.
Procedure for -- The hearing on the petition The hearing on the petition
hearing shall be summary. However shall be summary. However
the court, justice or judge may the court, justice or judge
call for a preliminary may call for a preliminary
conference to simplify the conference to simplify the
issues and determine the issues and determine the
possibility of obtaining possibility of obtaining
stipulations and admissions stipulations and admissions
from the parties. from the parties.

The hearing shall be from day

to day until completed and
given the same priority as
petitions for habeas corpus.
Interim reliefs -- Temporary Protection Order – --
available before protected in a government
final judgment agency of by an accredited
person or private institution
capable of keeping and
securing their safety;

Inspection Order – with a

lifetime of 5 days which may
be extended, may be opposed
on the ground of national
security or privileged
information, allows entry into
and inspect, measure, survey
or photograph the property;

Production Order – to require

respondents to produce and
permit inspection, copying or
photographing of documents,
papers, books, accounts,
letters, photographs, objects or
tangible things that contain

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Writ of Habeas Corpus
Effect of filing --
criminal action
Appeal  To the SC under Rule 45,
within 48 hours from
notice of judgment (Tan
Chin Hui vs. Rodriguez, GR
137571, Sept. 21, 2000).
 A writ of habeas corpus
does not lie where
petitioner has the remedy
of appeal or certiorari
because it will not be
permitted to perform the
functions of a writ of error
or appeal for the purpose
of reviewing mere errors
or irregularities in the
proceedings of a court
having jurisdiction over
the person and the
subject matter (Galvez vs.
CA, GR 114046, Oct. 24,
1994).
Quantum of proof --
6.Q. CHANGE OF NAME
6.Q.1. Differences Under Rule 103 And Rule 108 In Relation To R.A. 9048:
Rule 103
Rule or Law Change of Name
Subject Matter Change of full name or family Cancellation or correction of Change of first name or
name (substantial corrections) civil
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PURPLE NOTES
Writ of Amparo Writ of Habeas Data
evidence.
A criminal action first filed A criminal action first filed
excludes the filing of the writ; excludes the filing of the
relief shall be by motion in the writ; relief shall be by
criminal case. A criminal case motion in the criminal case;
filed subsequently shall be A criminal case filed
consolidated with the petition subsequently shall be
for the writ of amparo. consolidated with the
petition for the writ of
habeas data.
To the SC under Rule 45, To the SC under Rule 45,
within5 days from notice of within 5 days from notice of
adverse judgment, to be given judgment or final order, to
the same priority as habeas be given the same priority
corpus cases. as habeas corpus
and amparo cases.
By substantial evidence. --
Private respondent to prove
ordinary diligence was
observed in the performance of
duty. Public official/employee
respondent to prove
extraordinary diligence was
observed, and cannot invoke
the presumption that official
duty has been regularly
performed to evade
responsibility or liability.
Rule 108 R.A. 9048
Cancellation/ Correction of Clerical Error Act
Entries in the Civil Registry
registry entries nickname and correction of civil
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Rule 103 Rule 108 R.A. 9048

(substantial corrections) registry entries (only
typographical or clerical errors)
Who may File A person desiring to change his Any person interested in any Any person having direct and
name. (Section 1) act, event, order or decree personal interest in the
concerning the civil status of correction of a clerical or
persons which has been typographical error in an entry
recorded in the civil register. and/or change of first name or
(Section 1) nickname. (Section 3)
Venue RTC of the province in which RTC of city or province where 1. Local civil registry office of
petitioner resided for 3 years the corresponding civil registry the city or municipality
prior to filing. is located. where the record being
sought to be corrected or
changed is kept;

2. Local civil registrar of the

place where the interested
party is presently residing
or domiciled;

3. Philippine Consulate
Contents of (a) That petitioner has been a -- (a) Facts necessary to
Petition bona fide resident of the establish the merits of
province where the petition petition;
is filed for at least three (3)
years prior to the date of (b) Particular erroneous entry
such filing; or entries, which are
sought to be corrected
(b) The cause for which the and/or the change sought
change of petitioner's name to be made.
is sought;
Petition shall be supported by
(c) The name asked for. the following documents:
(Section 2)
(1) A certified true machine
copy of the certificate or of
the page of the registry
book containing the entry
or entries sought to be
corrected or changed;

(2) At least two (2) public or

private documents showing
the correct entry or entries
upon which the correction
or change shall be based;
and

(3) Other documents which

petitioner or the city or
municipal civil registrar or
the consul general may
consider relevant and
necessary for the approval
of petition. (Section 5)
Grounds 1. Name is ridiculous, tainted Upon good and valid grounds. 1. Petitioner
with dishonor and extremely finds the first name or

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Rule 103 Rule 108 R.A. 9048

difficult to write or nickname to be ridiculous,
pronounce; tainted with dishonor or
extremely difficult to write
2. Consequence of change of or pronounce;
status;
2. The new first
3. Necessity to avoid name or nickname has been
confusion; habitually and continuously
used by petitioner and he
4. Having continuously used has been publicly known by
and been known since that first name or nickname
childhood by a Filipino in the community; or
name, unaware of her alien
parentage; 3. The change
will avoid confusion.
5. A sincere desire to adopt a (Section 4)
Filipino name to erase signs
of former alienage all in
good faith and without
prejudicing anybody.
Kind of Judicial Proceeding Judicial Proceeding Administrative Proceeding
Proceeding
Adversarial in nature because
it involves substantial changes
and affects the status of an
individual.
What to File File a signed and verified File a verified petition for the File an affidavit.
petition. cancellation or correction of
any entry.
.
Notice and At least once a week for three At least once a week for three At least once a week for two
Publication consecutive weeks in a consecutive weeks in a consecutive weeks (publish the
newspaper of general circulation newspaper of general whole affidavit) – in change of
(notice of hearing) circulation (notice of hearing) first name or nickname
Posting No posting No posting Duty of the civil registrar or
Consul to post petition in a
conspicuous place for 10
consecutive days
Who The Solicitor General or the The Civil Registrar. The Civil Registrar or Consul.
Participates on proper provincial or city fiscal
the part of the shall appear on behalf of the
Government Government of the Republic.
Where to Appeal decision to the Court of Appeal decision to the Court Appeal decision to the Civil
Appeal: Appeals. of Appeals. Registrar General (head of
NCSO).

Cancellation or Cancellation or
Change of Name Change of Name
Correction Of Entries Correction Of Entries
Involves substantial Involves clerical or understanding and
changes typographical errors such involves a harmless or
as those which are visible innocuous change
to eye or obvious to the An appropriate adversary An appropriate summary

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Change of Name
Cancellation or rigid classification. (Republic vs. Cagandahan
Correction Of Entries G.R. No. 166676, September 12, 2008)
proceeding proceeding
6.R. ABSENTEES
Requires judicial order Directed or changed by
the city or municipal civil
6.R.1. Purpose of the Rule: To allow the
registrar or consul
general without a judicial court to appoint an administrator or
order representative to take care of the property
of the person who is sought to be judicially
6.Q.2. Grounds for Change of Name declared absent. It also aims to have the
court appoint the present spouse as
Justifiable causes for change of name: administrator or administratrix of the absent
spouse‘s properties, or for the separation of
1. The name is ridiculous, dishonorable, or is
properties of the spouses.
extremely difficult to write or pronounce.
2. The change results as a legal consequence,
Period to file a declaration of absence:
as in legitimation.
3. The change is necessary to avoid confusion
a. After the lapse of 2 years from
(not confusion caused by petitioner's own
disappearance without any news from him
use of unauthorized alias).
or from the receipt of the last news; or
4. Having continuously used and been known
b. 5 years in case the absentee has left a
since childhood by a Filipino name, unaware
person in-charge of the administration of his
of his alien parentage;
property.
5. Sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good
6.R.2. Who May File:
faith, without prejudice to public interest and
not for a fraudulent purpose.
a. The spouse present;
b. The heirs instituted in a will, who may
Insufficient Grounds for The Change Of
present an authentic copy of the same;
Name:
c. The relatives who may succeed by the law
of intestacy; or
1. Separation of spouses;
d. Those who have over the property of the
2. No proof of prejudice by use of official name;
absentee some rights subordinated to the
3. Mere use and known by different name;
condition of his death.
4. No proof that the true name evokes derisive
laughter.
 It is not necessary that a declaration of
absence be made in a proceeding separate
 A change of name is not a matter of right
from and prior to a petition for
but of judicial discretion, to be exercised in
administration. (Reyes vs. Alejandro, 141 SCRA
the light of the reasons adduced and the
65)
consequences that will follow. The Supreme
Court considers the compassionate calls for
The judicial declaration of absence shall not take
recognition of the various degrees of
effect until 6 months after its publication in a
intersex as variations which should not be
newspaper of general circulation. (Art. 386 Civil
subject to outright denial. "It has been Code)
suggested that there is some middle ground
between the sexes, a `no-man's land' for Venue: The residence of absentee prior to the
those individuals who are neither truly filing of petition (Rule 107, Sec. 1).
`male' nor truly `female'." The current state
of Philippine statutes apparently compels
that a person be classified either as a male
or as a female, but this Court is not
controlled by mere appearances when
nature itself fundamentally negates such
Who may be appointed as representative:

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a. The spouse, if present, shall have 1. Births

preference in the appointment when there is 2. Marriages
no legal separation; 3. Deaths
b. If the absentee left no spouse, or, if the 4. Legal separations
spouse is incompetent, or, if a minor, any 5. Judgments of annulments of marriage
competent person may be appointed by the 6. Judgments declaring marriages void from
court; or the beginning.
c. In case of declaration of absence, the 7. Legitimations
trustee or administrator shall be appointed 8. Adoptions
in the same manner as above cited. 9. Acknowledgments of natural children
10. Naturalization
When trusteeship or administration of 11. Election, loss or recovery of citizenship
property shall cease upon the order of the 12. Civil interdiction
court: 13. Judicial determination of filiation
14. Voluntary emancipation of minor; and
a. Absentee appears personally or by means of 15. Change of name.
an agent.
b. Death of the absentee is proved and his General rule: No entry in a civil register shall
testate or intestate heirs appear; and be changed or corrected without a judicial order.
c. Third person appears, showing by proper
document that he has acquired the Exception: Judicial order is not necessary since
absentee's property by purchase or other correction may be done administratively.
title.
1. For clerical or typographical errors
Absentee Consequence  a mistake committed in the performance
0 years to 2 years -- of clerical work in writing, copying,
Petition for declaration transcribing or typing an entry in the civil
2 years to 7 years
of absence may be filed register
Beyond 7 years (absence Considered dead for all  Harmless and innocuous (inoffensive),
of 4 years under intents and purposes,
such as:
extraordinary except for purposes of
circumstances) succession
1. misspelled name
For purposes of marriage: 2. misspelled place of birth or the like,
4 years continuous 3. mistake in the entry of day and month
absence shall be sufficient in the date of birth (Note: in case of
for the present spouse to year, judicial order is necessary)
remarry (2 years only 4. the sex of the person or the like
under extra ordinary (where it is patently clear that there
circumstances)
was a clerical or typographical error or
mistake in the entry)
6.S. CANCELLATION OR CORRECTION OF  Visible to the eyes or obvious to the
ENTRIES IN THE CIVIL REGISTRY (Rule 108) understanding
 Can be corrected or changed only by
Note: This Rule is modified accordingly by R.A. reference to other existing record or
9048, i.e. Clerical Error Law and its records:
Implementing Rules, allowing corrections in the
civil register without the need of judicial order. 2. Change of first name or nickname

 "First name" - a name or nickname given

to a person which may consist of one or
6.S.1. Entries Subject To Correction & more names in addition to the middle and
Cancellation: last names

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 Grounds Petition for

Petition for the
Correction or
Change of Name
1. The petitioner finds the first name or Cancellation of Entries
nickname to be ridiculous, tainted with such as those which are
visible to eye or obvious
dishonor or extremely difficult to write
to the understanding and
or pronounce. involves a harmless or
2. The new first name or nickname has innocuous change
been habitually and continuously used An appropriate Generally an appropriate
by the petitioner and he has been adversary proceeding summary proceeding
publicly known by that by that first Entry is correct but All cancellation or
name or nickname in the community: or petitioner desires to correction of entries
3. The change will avoid confusion. change the entry
Requires judicial order Generally directed or
changed by the city or
municipal civil registrar or
Parties to be impleaded:
consul general without a
judicial order
The Civil Registrar concerned; and,
All persons who have or claim any interest which
 Petition for change of name and petition for
would be affected thereby.
cancellation or correction of entries are
distinct proceedings. Hence, a party cannot
Notice & publication:
change name and correct an entry in a
single petition without satisfying the
Notice of time and place for the hearing to be
jurisdictional requirement.
given to all persons named in the petition.
Publication is for 3 consecutive weeks in a
A petition for correction is an action in rem.
newspaper of general circulation.
x It is the publication of such notice that
brings in the whole world as party in the
When opposition to the petition is filed:
case and vests the court with jurisdiction to
hear and decide. (Barco vs. CA, 420 SCRA 162)
a. 15 days counted from the notice of the
petition; or
 If the correction sought to be made in the
b. 15 days counted from the last publication of
civil register is clerical, then the procedure
the notice.
to be adopted is summary. If the
rectification affects the civil status,
Petition for the
Petition for
Correction or
citizenship or nationality of a party, it is
Change of Name deemed substantial, and the procedure to
Cancellation of Entries
Petition should be filed Verified petition filed in be adopted is adversary. (Republic vs.
in the RTC where the the RTC where the Valencia, 141 SCRA 462, 474)
petitioner resides corresponding Civil
Registry is located  An appropriate adversary suit or proceeding
Civil Registrar is not a Civil registrar is an is one where the trial court has conducted,
party indispensable party. If proceedings where all relevant facts have
not made a party, been fully and properly developed, where
proceedings are null and opposing counsel have been given
void. Reason: He is an
opportunity to demolish the opposite party‘s
interested party in
protecting the integrity of
case, and where the evidence has been
the public documents thoroughly weighed and considered.
Petition is filed by the By an person interested (Eleosida vs. Local Civil Registrar of Quezon City,
person desiring to in any ACT, EVENT, 382 SCRA 22)
change his name ORDER or DECREE
Change of name only All cancellation or  R.A. 9048 does not sanction a change of
correction of entries first name on the ground of sex
Involves substantial Generally involves clerical reassignment. Rather than avoiding
changes or typographical errors confusion, changing petitioner‘s first name

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for his declared purpose may only create Principles on Jurisdiction in Criminal
grave complications in the civil registry and Cases:
the public interest. (Silverio vs. Republic, G.R.
No. 174689, October 22, 2007) a. Jurisdiction over the subject matter is
conferred by law
Clerical Error Law (R.A. No. 9048) b. Jurisdiction over the territory is conferred by
law since venue is jurisdictional
A surname cannot be the subject of a petition c. Jurisdiction over the person of the accused
for change of name under this procedure. is acquired through arrest or voluntary
surrender
Correction of clerical or typographical error shall d. Jurisdiction of the court is determined by the
be availed only once with respect to particular law enforced at the time of the commission
entry or entries in the same civil registry of of the offense
record.
7.A.1. Distinguish Jurisdiction over the
This procedure is summary and administrative. Subject Matter and Jurisdiction over the
Person of the Accused (Miranda v. Tuliao, G.R.
No. 158763, March 31, 2006, 486 SCRA 377)
7. CRIMINAL PROCEDURE
JURISDICTION OVER JURISDICTION OVER
It is the method fixed by law or the Rules of THE SUBJECT MATTER THE PERSON OF THE
Court for the apprehension and prosecution of ACCUSED
persons accused of any criminal offense and for Derived from the law. It May be acquired by
their punishment in case of conviction. can never be acquired consent of the accused
solely by consent of the or by waiver of
accused. objections as when the
While criminal law declares what conduct is
accused enter his plea.
criminal, defines crimes and prescribes Objection that the court If he fails to make his
punishment for such crimes, criminal procedure has no jurisdiction over objection in time, he
lays down the process by which an offender is the subject matter may will be deemed to have
made to answer for crime he committed (Riano, be made at any stage of waived it.
W. (2016). Criminal Procedure, p.22) the proceeding and the
right to make such
Construction objection is never
Criminal procedure is a penal statute and as waived.
JURISDICTION OVER
such it should be construed strictly.
CUSTODY OF LAW THE PERSON OF THE
ACCUSED
Penal statutes, substantive and remedial or required before the court jurisdiction over the
procedural are construed liberally in favor of the can act upon the person of the accused is
accused. application for bail, but is deemed waived by the
not required for the accused when he files
Criminal jurisdiction adjudication of other any pleading seeking an
It is the power of the State to try and punish a reliefs sought by the affirmative relief, except
person for violation of its penal laws. defendant where the in cases when he
mere application therefor invokes the special
constitutes a waiver of jurisdiction of the court
 Is the authority to hear and try a particular
the defense of lack of by impugning such
offense and impose the punishment for it. jurisdiction over the jurisdiction over his
(People vs. Mariano, G.R. No. L-40527, June 30 person of the accused person
1976) accomplished either by
acquired upon his arrest
arrest or voluntary
or voluntary appearance
surrender

7.A. GENERAL MATTERS

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One can be under the Exception:

custody of the law but one can be subject to
not yet subject to the the jurisdiction of the a.i. Expressly provided;
jurisdiction of the court court over his person,
a.ii. is construed to effect that is intended
over his person, such as and yet not be in the
to operate to actions pending before
when a person arrested custody of the law, such
by virtue of a warrant as when an accused its enactment (Palana v People, G.R.
files a motion before escapes custody after No. 149995 dated September 28,
arraignment to quash the his trial has commenced 2007).
warrant
Being in the custody of 7.A.2. Requisites for a Valid Exercise of
the law signifies restraint Criminal Jurisdiction:
on the person, who is
thereby deprived of his  The court acquires jurisdiction in criminal
own will and liberty,
case only when the following requisites
binding him to become
obedient to the will of the concur: (a) offense is one which the court is
law by law authorized to take cognizance of; (b)
literally custody over the offense must have been committed within
body of the accused. It its territorial jurisdiction; and, (c) person
includes, but is not charged with the offense must have been
limited to, detention brought into its forum for trial forcibly by
warrant of arrest or upon his voluntary
May the court acquire jurisdiction over the submission to the court. (Arula vs. Espino,
accused in a criminal case through the G.R. No. L-28949, June 23, 1969, 28 SCRA 540)
service of summons, similar to a civil case?
Venue is jurisdictional in criminal cases.
Yes. Under Sec. 8 (b) of Rule 112, in cases not
requiring a preliminary investigation nor covered  Venue is jurisdictional in criminal cases. It
by the Rule on Summary Procedure, the MTC/ determines not only the place where the
MeTC/ MCTC judge finds probable cause, he criminal action is to be instituted, but also
shall issue a warrant of arrest, or a commitment the court which has the jurisdiction to try
order if the accused had already been arrested, and hear the case. The reason for this rule
and hold the latter for trial. However, under is two-fold. First, the jurisdiction of trial
Section 9 (b) of Rule 112, if the judge is courts is limited to well-defined territories
satisfied that there is no necessity for placing such that a trial court can only hear and try
the accused under custody, he may issue cases involving crimes committed within its
summons instead of a warrant of arrest. territorial jurisdiction. Second, laying the
venue in the locus criminis is grounded on
How jurisdiction is determined in criminal the necessity and justice of having an
cases accused on trial in the municipality of
province where witnesses and other facilities
a. By the allegations in the complaint or for his defense are available. Unlike in civil
information and not by the results of proof cases, a finding of improper venue in
or by the trial courts‘ appreciation of the criminal cases carries jurisdictional
evidence presented. consequences. In determining the venue
b. By the law in force at the time of the where the criminal action is to be instituted
institution of the criminal action. Once and the court which has jurisdiction over it,
vested, it cannot be withdrawn by: Section 15(a), Rule 110 of the 2000 Revised
Rules of Criminal Procedure provides that
1. A subsequent valid amendment of the subject to existing laws, the criminal action
information; or shall be instituted and tried in the court of
2. A subsequent statute amendatory of the the municipality or territory where the
rules of jurisdiction. offense was committed or where any of its
essential ingredients occurred. (Union Bank
vs. People, G.R. No. 192565, February 28, 2012)

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Note: The question of jurisdiction may be criminal cases

raised at any stage of the proceedings. by petition for review
Appellate jurisdiction
Hence, the question of jurisdiction may be by notice of appeal
cognizable even if raised for the first time on SANDIGANBAYAN
appeal. (Atienza v. People, G.R. No. 188694, RA 3019 (Anti-Graft and
February 12, 2014). The exception to this rule Corrupt Practices Act)
RA 1379 (The Law on Ill-
is when a party is estopped from
These offenses refer Gotten Wealth)
questioning the jurisdiction of the court for Chapter II Section 2 Title VII
to the law on bribery
reasons of public policy as he initially in ALL its forms Book 2 of the Revised Penal
invokes the jurisdiction of the court and including corruption Code (Bribery)
then later on repudiates that same of public officers. E.O. Nos. 1, 2, 14, 14-A
jurisdiction. (Tijam v. Sibonghanoy, 23 SCRA (PCGG cases)
29). Estafa under Serana vs.
Sandiganbayan (G.R. No.
The Court emphazied that the doctrine of Original Jurisdiction 162059, January 22, 2008)
estoppel laid down in Tijam is an over these crimes: Falsification under Garcia vs.
EXCEPTION and not the general rule. The Sandiganbayan (G.R. No.
170122, G.R. No. 171381,
rule still stands that jurisdiction is vested by
October 12, 2009)
law and cannot be conferred or waived by public officers in the
the parties. executive and legislative
branches of the government,
 However, estoppel ought to be applied with and all other national and
caution. For estoppel to apply, the action local officials with SG 27
giving rise thereto must be unequivocal and according to RA 6758 (The
intentional because, if misapplied, estoppel Compensation and Position
may become a tool of injustice. (Duero vs. Classification Act of 1989)
Court of Appeals, G.R. No. 131282, January 4,
2002) private individuals
committing the offense or
crime with public officers
 Estoppel, being in the nature of a forfeiture,
(See People vs. Go G.R. No.
is not favored by law. It is to be applied 168539, March 25, 2014)
rarely—only from necessity, and only in
extraordinary circumstances. The doctrine Note: Effect of death of the
must be applied with great care and the Provided that these public officer
equity must be strong in its favor. When crimes are
misapplied, the doctrine of estoppel may be committed by these A private person may be
the most effective weapon for the persons: indicted for violation of RA
3019 even if the public
accomplishment of injustice. (Figueroa vs.
officer, with whom he was
People, G.R. No. 147406, July 14, 2008).
alleged to have conspired,
died PRIOR to the filing of
the information. It does not
mean that the conspiracy
between them can no longer
7.A.3. Jurisdiction of Criminal Courts be proved or that the alleged
conspiracy is already
SUPREME COURT extinguished. (People vs.
No original Go, G.R. No. 168359, March
jurisdiction over 25, 2014)
criminal cases
by petition for review other officers enumerated in
Appellate jurisdiction P.D. No. 1606 (See Serana
by notice of appeal
COURT OF APPEALS case)
No original provided that the
jurisdiction over crime was committed

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in relation to the court shall promulgate

public office, that is, sentence and ascertain any
the public office civil liability which the
facilitated the accused may have incurred.
commission of the
crime (see Serana The sentence, however,
case) shall be suspended without
Appellate jurisdiction need of application pursuant
to PD No. 603, otherwise
Other punishable known as the "Child and
offenses within the Youth Welfare Code";
jurisdiction of
Sandiganbayan as b. Petitions for guardianship,
provided under custody of children, habeas
special laws: corpus in relation to the
1. Anti-Money All cases decided by the RTC latter;
Laundering Cases in the exercise of its original
(Section 5, RA or appellate jurisdiction over c. Petitions for adoption of
9160, Anti-Money cases of public officers with children and the revocation
Laundering Act of SG less than 27 charged with thereof;
2001); offenses/ crime
2. Violation of aforementioned d. Complaints for annulment of
Plunder Law marriage, declaration of
(Section 3 of RA nullity of marriage and those
7080 – An Act relating to marital status and
Defining and property relations of
Penalizing the husband and wife or those
Crime of Plunder) living together under
3. Forfeiture Cases different status and
(RA 1379) agreements, and petitions
REGIONAL TRIAL COURTS for dissolution of conjugal
1. All offenses where the partnership of gains;
prescribed penalty is
imprisonment EXCEEDING e. Petitions for support and/or
six (6) years, irrespective acknowledgment;
of the amount of
imposable; f. Summary judicial
Exclusive Original 2. All offenses where the proceedings brought under
Jurisdiction prescribed penalty is FINE the provisions of Executive
only and such fine Order No. 209, otherwise
EXCEEDS P4,000; known as the "Family Code
3. All criminal cases not of the Philippines";
within the exclusive
jurisdiction of any court, g. Petitions for declaration of
tribunal or body. status of children as
All criminal cases decided by abandoned, dependent o
Appellate Jurisdiction neglected children, petitions
MTC
FAMILY COURTS for voluntary or involuntary
commitment of children; the
a. Criminal cases where one or suspension, termination, or
more of the accused is restoration of parental
below eighteen (18) years of authority and other cases
age but not less than nine cognizable under Presidential
Original Exclusive (9) years of age but not less Decree No. 603, Executive
Jurisdiction than nine (9) years of age or Order No. 56, (Series of
where one or more of the 1986), and other related
victims is a minor at the time laws;
of the commission of the
offense: Provided, That if h. Petitions for the constitution
the minor is found guilty, the of the family home;

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Note: when the minor has died

i. Cases against minors before the institution of the
cognizable under the information, or thereafter but
Dangerous Drugs Act, as before the arraignment of the
amended; accused, case falls under
regular courts (A.M. No. 15-02-
j. Violations of Republic Act 10-SC dated Oct. 18, 2016)
No. 7610, otherwise known
as the "Special Protection of
Children Against Child METROPOLITAN/ MUNICIPAL TRIAL COURTS
Abuse, Exploitation and All violations of city/ municipal
Discrimination Act," as ordinances
amended by Republic Act All offenses punishable with
No. 7658; and imprisonment of not more than
6 years, regardless of fine.
k. Cases of domestic violence
against: Exception:
Section 32, B.P. 129 ―Except in
1. Women - which are cases in falling within the
acts of gender based exclusive original jurisdiction of
violence that results, or the RTC and of the
are likely to result in Sandiganbayan.‖ This indicates
physical, sexual or that the MTC does not at all
psychological harm or times have jurisdiction over
suffering to women; offenses punishable with
and other forms of imprisonment not exceeding 6
physical abuse such as years. This happens if
battering or threats jurisdiction is vested by law
and coercion which either in RTC or Sandiganbayan.
violate a woman's Instances of this four (4)
personhood, integrity exception:
and freedom 1. Libel;
movement; and 2. Violation of Decree on
Exclusive Original Intellectual Property;
2. Children - which Jurisdiction 3. Violation of Dangerous Drug
include the commission Act (except in case of
of all forms of abuse, minors);
neglect, cruelty, 4. Violation of the Omnibus
exploitation, violence, Election Code. (Morales vs.
and discrimination and CA, 283 SCRA 211 (1997)
all other conditions and Comelec vs. Nhoynay,
prejudicial to their 292 SCRA 254 (1998)
development. violations of traffic rules and
regulations
If an act constitutes a criminal
offense, the accused or batterer MTC: Special jurisdiction to
shall be subject to criminal decide on applications for bail in
proceedings and the criminal cases in the absence of
corresponding penalties. all RTC judges in a province or
city. (Sec. 35, BP 129 as
If any question involving any of amended by RA 7691)
the above matters should arise
as an incident in any case Violation of the rental law
pending in the regular courts,
said incident shall be Summary procedure in certain
determined in that court. crime. instances
(Sec. 5, RA 8369)
When the prescribed penalty is

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FINE ONLY and the imposable Jurisdiction over continuous crimes

amount does NOT EXCEED
P4,000.  A criminal action may be filed in different
venues under the rules for delitos
violations of B.P 22
continuados or in those instances where
damage to property through
different trial courts have concurrent original
criminal negligence with fine of
not more than P10,000 jurisdiction over the same criminal offense.
COURTS OF MUSLIM MINDANAO (Malaloan vs. CA, G.R. No. 104879, May 6, 1994)
criminal cases
involving Muslims  It is said that when several courts have
(RA 6734 as concurrent jurisdiction, the first court which
amended by RA acquires jurisdiction retains it to the
9054) exclusion of the others. (Nenaria vs. Hon.
Veluz, G.R. No. L-4683, May 29, 1952)
Crime Jurisdiction
Complex crimes Depends on the Jurisdiction over crimes punishable by
jurisdiction of the most destierro
serious offense. It must
be prosecuted integrally.  Where the imposable penalty is destierro,
(Cuyos vs. Garcia G.R.
the case falls within the exclusive
No. L-46934, April 15,
1988) jurisdiction of the Municipal Trial Court,
Continuing (transitory) First court taking considering that in the hierarchy of penalties
crimes cognizance of the case under Article 71 of the Revised Penal Code,
excludes the other destierro follows arresto mayor which
(Tuazon vs. Crus L-27410 involves imprisonment. (People vs. Eduarte,
August 28, 1975) G.R. No. 88232 February 26, 1990)
Crimes punishable by MTC (People vs. Eduarte,
destierro G.R. No. 88232 February Jurisdiction over libel cases
26, 1990)
Libel cases RTC (People vs. MTC of  Although punishable by prision
Quezon City, G.R. No.
correccional, the jurisdiction falls within
123263, December 16,
1996) the RTC. (People vs. MTC of Quezon City,
G.R. No. 123263, Dec. 16, 1996)
Violations of Dangerous RTC (People vs. Morales,
Drugs Act G.R. No. 126621,
December 12, 1997) Jurisdiction over violations of Dangerous
Violations of intellectual RTC (A.M. No. 03-03-03- Drugs Act
property rights SC, Effective July 1, 2003
implementing the  Regardless of its penalty, the jurisdiction
Intellectual Property Code falls within the RTC (People vs. Morales, G.R.
of the Philippines No. 126621, Dec. 12, 1997)
Money laundering RTC (Sec 5 R.A. 9160,
Anti-Money Laundering Note: Where the offense is within its exclusive
Act of 2001)
competence by reason of the penalty prescribed
therefore, an inferior court shall have jurisdiction
 Jurisdiction over the whole complex crime is to try and decide the case irrespective of the
lodged with the trial court having jurisdiction kind and nature of the civil liability arising from
to impose the maximum and most serious the said offense. (Legados vs. de Guzman, G.R. No.
penalty imposable of an offense forming 35285, Feb. 20, 1989). Also, the additional penalty
part of the complex crime. It must be for habitual delinquency is not considered in
prosecuted integrally and must not be determining jurisdiction because such
divided into component offenses which may delinquency is not a crime.
be made subject of multiple informations
brought in different courts. (Cuyos vs. Garcia Thus, jurisdiction is determined by the
G.R. No. L-46934, April 15, 1988)
PRINCIPAL penalty, NOT by the civil liability,
additional penalty or the subsidiary penalty.

278 CENTER FOR LEGAL EDUCATION AND RESEARCH


Jurisdiction over money laundering
RTC has jurisdiction to try all cases on money
laundering. However, those committed by public
officers and private persons, who are in
conspiracy with such public officers, shall be
under the jurisdiction of Sandiganbayan
7.A.4. When Injunction May Be Issued To
Restrain Criminal Prosecution
General Rule: It is a long-standing doctrine
that injunction will not lie to enjoin a criminal
prosecution for the reason that public interest
requires that criminal acts be immediately
investigated and prosecuted for the protection
of society except in specified cases among which
are to prevent the use of the strong arm of the
law in an oppressive and vindictive manner, and
to afford adequate protection to constitutional
rights. (Asutilla vs. PNB, 141 SCRA 40).
Exceptions:
 To afford adequate protection to the
constitutional rights of the accused.
 When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of suits.
 When there is a prejudicial question which is
subjudice.
 When the acts of the officer are without or
in excess of authority.
 When the prosecution is under an invalid
law, ordinance or regulation;
 When double jeopardy is clearly apparent.
 When the court has no jurisdiction over the
offense.
 When it is a case of persecution rather than
prosecution.
 When the charges are manifestly false and
motivated by lust for vengeance; and
 When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied. (Brocka v. Enrile, 192 SCRA
183,188)
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Jurisdiction is retained regardless of:
a. Whether the evidence proves a lesser
offense than that charged in the
information,
b. The subsequent happening of events,
although of a character which would have
prevented jurisdiction from attaching in the
first instance.
General Rule: Jurisdiction of a court to try
criminal action is to be determined by the law in
force at the time of the institution of the action.
(People vs. CA 12th Division, G.R. No. 154557,
February 13, 2008 citing People vs. Velasco, G.R. No.
110592, January 23, 1996,)
Exception: Where the statute expressly
provides, or the statute is clearly intended to
operate to actions pending before its enactment,
in which case, the court where the criminal
action is pending is ousted of jurisdiction and
the pending action will have to be transferred to
the other tribunal which will continue the
proceeding. (People vs. CA, supra)
7.B. PROSECUTION OF OFFENSES (Rule 110)
7.B.1. Criminal Actions, how instituted
(Rule 110, Sec. 1)
By filing a complaint with the proper
officer:
Where a Preliminary Investigation is required
pursuant to Sec. 1 of Rule 112 (Rule 110, Sec.
1[a])
1) Preliminary Investigation is required to be
conducted before the filing of a complaint or
information for offenses where the penalty
prescribed by law is at least 4 years, 2
months and 1 day without regard to fine.
(Rule 112, Sec. 1)
2) In case of summary procedure, it is
discretionary upon the Prosecutor if he
wants to conduct a Preliminary
Investigation.
3) In Metro Manila and other chartered cities
outside Metro Manila, unless otherwise
provided in their charters (Rule 110, Sec. 1[b])
4) For all other offenses, directly with the
Municipal Trial Court and Municipal Circuit
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Trial Courts or with the office of the
prosecutor.
As a rule, there is no direct filing of an
information or complaint with the Regional Trial
Court under Rule 110 because its jurisdiction
covers offenses which require preliminary
investigation. Exception to this rule is in the
absence or unavailability of an inquest
prosecutor, complaint may be filed directly with
the proper court on the basis of the affidavit of
the offended party or arresting officer or person
7.B.2. Who may file them, crimes that
cannot be prosecuted de officio
a) Provincial/City Prosecutor
b) Chief State Prosecutor
c) Ombudsman or his deputy; (Rule 112, Sec. 4,
par. 3)
d) Lawyer appointed by Secretary of Justice
pursuant to Sec. 1696 of the Revised
Administrative Code, as amended.
Proper officer
The person authorized to conduct the requisite
preliminary investigation (Rule 112, Sec.2).
1) Provincial or city prosecutors and their
assistants
2) National and regional state prosecutors
3) Other officers as may be authorized by law
4) Commissions on Elections through its
authorized legal officers for all election
offenses punishable under the Omnibus
Election Code.
5) Lawyers appointed as special prosecutors
(Sec.1686, RAC)
6) Office of the Ombudsman;
7) PCGG with the assistance of OSG and other
government agencies
 Procedural law basically mandates that "[a]ll
criminal actions commenced by complaint or
by information shall be prosecuted under
the direction and control of a public
prosecutor." In appeals of criminal cases
before the CA and before this Supreme
Court, the OSG is the appellate counsel of
the People, pursuant to Section 35(1),
Chapter 12, Title III, Book IV of the 1987
Administrative Code. (Jimenez vs. Hon.
Sorongon, G.R. No. 178607, December 5, 2012)
280 CENTER FOR LEGAL EDUCATION AND RESEARCH
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Exception:
1. ―In all cases elevated (i) to the
Sandiganbayan; and (ii) from
Sandiganbayan to the SC, the Office of the
Ombudsman, through its special prosecutor,
shall represent the People of the Philippines,
except in cases filed pursuant to EO Nos. 1,
2, 14 and 14-A, issued in 1986.‖ (People vs
Sandiganbayan (First and Third Divisions), 712
SCRA 359, 403);
2. When the State and the offended party are
deprived of due process because the
prosecution is remiss in its duty to protect
the interest of the State and the offended
party; and
3. When the offended party questions the civil
aspect of the decision of the lower court
(Heirs of Federico Delgado v Gonzales, GR No.
184337, August 7, 2009)
 The rule is settled that once a criminal
complaint or information is filed in court,
any disposition thereof, such as its dismissal
or the conviction or acquittal of the accused,
rests in the sound discretion of the court.
While the prosecutor retains the discretion
and control of the prosecution of the case,
he cannot impose his opinion on the court.
The court is the best and sole judge on
what to do with the case. Accordingly, a
motion to dismiss the case filed by the
prosecutor before or after the arraignment,
or after a reinvestigation, or upon
instructions of the Secretary of Justice who
reviewed the records upon reinvestigation,
should be addressed to the discretion of the
court. The action of the court must not,
however, impair the substantial rights of the
accused or the right of the People to due
process of law. (Hipos vs. Hon. Bay, G.R. Nos.
174813-15, March 17, 2009 citing People vs.
Montesa Jr., G.R. No. 114302, 29 September
1995)
General Rule:
 The filing of criminal action interrupts the
running of the period of prescription of the
offense charged even if the court where the
complaint or information is filed cannot try
the case on the merits. (People vs. Olarte,
G.R. No. L-22465, February 28, 1967)

 The filing of the first indictments suspended
the running of the prescriptive period, and
the prosecutions under the informations to
be filed should be regarded as mere
continuations of the previous proceedings.‖
(Arambulo vs. Lagui, 342 SCRA 740)
Exception: If otherwise provided by special
laws.
May one compel a prosecutor by way of
mandamus to resolve a criminal complaint
which has been pending for more than a
year?
 No, as a general rule. Mandamus will not
issue to control the exercise of discretion by
a public officer where the law imposes upon
him the duty to exercise his judgment in
reference to any manner in which he is
required to act, because it is his judgment
that is to be exercised and not that of the
court. The only time the discretion of the
prosecutor will stand review by mandamus
is when the prosecutor gravely abuses his
discretion. (Marcelo vs. Villordon, G.R. No.
173081, December 15, 2010)
 It is a matter of discretion on the part of the
prosecutor to determine which persons
appear responsible for the commission of a
crime. However, the moment he finds one
to be so liable, it becomes his inescapable
duty to charge him therewith and to
prosecute him for the same. In such a
situation, the rule loses its discretionary
character and becomes mandatory.
(Metropolitan Bank and Trust Company v
Reynaldo, 627 SCRA 88, 106)
Remedies of offended party if prosecutor
refuses to file information
1. File an action for mandamus, but only in
case of grave abuse of discretion.
2. Lodge a new complaint before the court
having jurisdiction over the offense where
there is no double jeopardy.
3. Take up the matter with the Secretary of
Justice in accordance with the Revised
Administrative Code.
4. Institute an administrative charge against
the erring prosecutor.
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5. File criminal action against the prosecutor
under Art. 208 of Revised Penal Code for
negligence to prosecute or tolerance of the
crime.
6. File civil action for damages under Art. 27 of
the Civil Code for failure to render service by
a public officer.
7. Secure appointment of another prosecutor.
The complaint or information shall be: (Rule
110, Sec. 2)
1. In writing;
2. In the name of the People of the Philippines;
and
3. Against all persons who appear to be
responsible for the offense involved.
 If the accused is a corporation, no
criminal action can lie against it (Time,
Inc. vs. Reyes, 39 SCRA 303).
 If the corporation violates the law, the
officer, through whom the corporation
acts, answers criminally for his acts
(People vs. Campos [CA] 40 O.G. Sup. 12,
7).
 A formal accusation of the type required
by the statute cannot be waived and in
its absence, there is nothing for the
court to act upon and the court acquires
no jurisdiction.
 While the information is not quashable if
not brought in the name of the People
of the Philippines, if the information is
grossly deficient, the same may be
quashed for failure to conform to the
prescribed form. (Rule 117, Sec 3 [e])
 Infirmity in the information such as lack
of authority of the officer signing it,
cannot be cured by silence,
acquiescence, or even by express
consent. (Cudia v. Court of Appeals, 284
SCRA 173) Such lack of authority on the
part of the officer is a ground for the
quashal of the information. (Rule 117,
Sec. 3[d]).
When a sworn written complaint is
required (Hernandez vs. Albano, 2 SCRA 607)
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a. If the offense is one which cannot be Subscribed by:

prosecuted de officio;
b. Adultery
c. Concubinage
d. Seduction
e. Abduction or;
f. Acts of lasciviousness as well as
defamation consisting in the imputation of
any of the above crimes (Art. 360 of the
Revised Penal Code, Title XI, Book II)
g. It is private in nature; or
h. Where it pertains to those cases which
need to be endorsed by specific public
officers.
Examples:
 The City Fiscal of Manila has no authority to
prosecute violations of the Anti-Dummy Law
independently of the Anti-Dummy Board
(Zobel vs. Concepcion, 5 SCRA 428).
 Internal Revenue Officer for violation of
the NIRC
 Custom agents with respect to violations
of the Tariff and Customs
CodeProsecution of private crimes
Art. 360, RPC: Those crimes which
cannot be prosecuted de officio and
requires that the criminal action be
brought at the instance of and upon
complaint expressly filed by the
offended party. (Rule 110, Sec. 5)
1. The offended party;
2. Any peace officer e.g. members of the
Constabulary, Police officers, Agents of NBI,
etc.; or
3. Other public officer charged with the
enforcement of the law violated e.g. Internal
Revenue Officer for violation of the NLRC,
custom agents with respect to violations of
the Tariff and Customs Code
 The want of an oath is a mere defect
which does not affect the substantial
rights of the defendant on the merits. It
is not permissible to set aside a
judgment for such a defect (US vs. Bibal,
4 Phil. 369).
An information is:
a. an accusation in writing;
b. charging a person with an offense; and
c. subscribed by the prosecutor and filed with
the court. (Rule 110, Sec. 4)
INFORMATION COMPLAINT
Always signed by the Subscribed by the offended
prosecutor or party, any peace officer or
authorized other officer charged with
prosecuting officer the enforcement of the law
violated (Rule 110, Sec. 3)
Need not be under Sworn to by person signing
oath it

 Compliance with this is a jurisdictional Reason: prosecuting

requirement and not merely a formality. officer filing it is
(People vs. Sunpongco, 163 SCRA 222). charged with the
special duty in regard
 In complex crimes, where one of the thereto and is acting
component offenses is a private crime and under the special
the other a public offense, the fiscal may responsibility of his
oath of office
initiate the proceedings de officio. (People vs.
Always filed with the May be filed either with the
Orcullo, 46 O.G., Supp.11,238).
court prosecutor‘s office or the
court.
Requirements in special laws
Note: If the origininal information was signed
The prosecution for violation of special laws and filled by one who has no authority to sign
shall be governed by the provisions thereof (Rule and file the same, the dismissal of the
110, Sec. 5, Par. 6).
information would not bar subsequent
prosecution under subsequent valid information.
A complaint is: (Rule 110, Sec. 3)
Jeopardy does not attach where an accused
pleads guilty to a defective indictment.
a. A sworn written statement;
b. Charging a person with an offense;

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Who May File Them, Crimes That Cannot
Be Prosecuted De Officio
Who may file the criminal action?
a. Offended party.
b. Any peace officer; or
c. Other public officer charged with the
enforcement of the law violated
Crimes that cannot be prosecuted de
officio
Private crimes - are those which cannot be
prosecuted except upon complaint filed by the
offended party. 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. (People v Yparraguire, GR No. 124391,
July 5, 2000)
Note: The proper term is not private crime but
rather a crime that cannot be prosecuted de
officio.
1. Concubinage and adultery – the criminal
action should be initiated by the offended
spouse, who should have the status,
capacity and legal representation at the time
of the filing of the complaint.
 The marital relationship must still be
subsisting. When there is already
annulment of marriage or nullity of
marriage, the accused can no longer file
the complaint.
 It must be instituted against both guilty
parties, unless one of them is no longer
alive.
 The offended party must not have given
his consent (whether expressed or
implied) to the offense or pardoned the
offenders.
 Only the offended spouse, not otherwise
incapacitated, can validly extend the
pardon or consent contemplated
therein. He/she must pardon BOTH the
erring spouse and mistress or
concubine. (People v Infante, GR No. L-
36270, August 31, 1932)
 The acquittal or death of one of the
accused in the crime of adultery does
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not bar the prosecution of the other
accused.
 Death of the offended spouse BEFORE
the filing of the complaint for adultery
bars further prosecution; if the offended
spouse died AFTER the filing of the
complaint, his death will NOT prevent
the proceeding from continuing to its
ultimate conclusion. REASON: His
participation is essential for the initiation
of the action, not for the maintenance
thereof. (People v Diego, CA, GR No. 1626,
December 15, 1937)
 In the case of People v Ilarde, 125 SCRA
11, before a formal charge could be
filed, the offended spouse died. The
fiscal then filed an information for
adultery attaching thereto the complaint
for adultery earlier executed by the
deceased offended spouse. The Court
upheld the filing of information
considering that the facts clearly
showed the desire of the offended party
to bring his wife and her alleged
paramour to justice.
2. Seduction, Abduction and Act of
Lasciviousness – The criminal action is to be
initiated exclusively and successively by the
following persons in the following order
a. By the offended woman
b. By the parents, grandparents or
legal/judicial guardians in that
successive order, if the offended party is
incompetent or incapable of doing so,
c. By the State pursuant to the Doctrine
of Parens Patriae, when the offended
party dies or becomes incapacitated
before she could file the complaint and
she has no known parents,
grandparents of guardian,
3. Defamation imputing to a person any of the
following crimes of concubinage, adultery,
seduction, abduction or acts of
lasciviousness can be prosecuted only by the
party or parties defamed.
 Except in cases that cannot be
prosecuted de officio, the Information
filed by the prosecutor with the proper
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court is sufficient. (Francisco, Jr. vs.
People, G.R. No. 177720, February 18, 2009)
Prosecution of the crimes of adultery and
concubinage (Rule 110, Sec. 5, Par. 2)
a. Upon a complaint filed by the offended
spouse;
b. The offended party must include, the guilty
parties, if both are alive;
c. The offended party must not have
consented to the offense or pardoned the
offenders.
Prosecution of the crimes of seduction,
abduction and acts of lasciviousness (Rule
110, Sec. 5, Par. 3)
Upon a complaint filed by the:
a. Offended Party, even if a minor, unless she
is incompetent or incapable;
b. Parents;
c. Grandparents;
d. Guardian;
e. State, if the offended party dies or becomes
incapacitated before she can file, the
complaint, and she has no known parents,
grandparents or guardian.
The prosecution of a crime of Defamation
imputing to a person any of the following
crimes: concubinage, adultery, seduction,
abduction, rape or acts of lasciviousness can be
done only by the party defamed (Art. 360, RPC).
 The right to prosecute these crimes shall be
exclusive of all other persons and shall be
exercised successively in the order provided.
 These crimes cannot be prosecuted in any
case, if the offender has been expressly
pardoned by any of them.
Rules on pardon:
a. The offended minor, if with sufficient
discretion, can validly pardon the accused
by herself if she has no parents or where
the accused is her own father and her
mother is dead;
b. The parents, grandparents or guardian of
the offended minor, in that order, cannot
extend a valid pardon in said crimes without
284 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
the conformity of the offended party, even if
the latter is a minor;
c. If the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
 The pardon refers to that made before filing
of the criminal complaint in court. Pardon
made after filing does not prohibit
continuance of the prosecution of the
offense except in case of marriage between
the offender and offended party.
7.B.3. Criminal Action, When Enjoined
General Rule: Criminal action cannot be
enjoined
Exceptions:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. Where there is a prejudicial question which
is sub judice (before a court or judge for
consideration);
4. When the acts of officer are without or in
excess of authority;
5. Where the prosecution is under an invalid
law, ordinance, or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the
offense;
8. Where it is a case of persecution rather than
prosecution;
9. Where the charges are manifestly false and
motivated by the lust for vengeance;
10. When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied; or
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners
7.B.4. Control of Prosecution (Rule 110, Sec.
5)
 All criminal actions commenced by a
complaint or information shall be
prosecuted under the direction and
control of a public prosecutor.

Rationale for the Rule that all criminal actions
shall be prosecuted under the direction and
control of a PUBLIC prosecutor is that since a
criminal offense is an outrage against the
sovereignty of the State, it necessarily follows
that a representative of the State shall direct
and control the prosecution thereof. (Chua v
Padillo, 522 SCRA 60, 66)
The right to prosecute vests the prosecutor with
a wide range of discretion, the discretion
whether, what and whom to charge, the
exercise of which depends on factors which are
best appreciated by prosecutors (Gonzales v
HSBC, 537 SCRA 255, 269). Not even the SC can
order the prosecution of a person against whom
the prosecutor does not find sufficient evidence
to support at least a prima facie case. The only
possible exception to the rule is where there is
an unmistakable showing of grave abuse of
discretion (Chua v Padillo, 522 SCRA 60, 66).
 Once a complaint/information is filed in
court, any disposition of the case rests in its
sound discretion. Although the fiscal retains
direction and control of the prosecution of
the criminal case, where it is already in
court, he cannot impose his opinion on the
trial. (Crespo vs. Mogul, 151 SCRA 462).
 The right of the offended party to institute
the criminal prosecution for the commission
of a public offense ceases upon the filing of
the complaint in court, the fiscal taking
charge of the prosecution of the suit in the
name of the People until the termination
thereof. (Salcedo vs. Liwag, 9 SCRA 609).
 The determination of whether or not
information should be lodged with the court
lies within the exclusive realm of the
prosecutor. (Ogburn vs. CA, 212 SCRA 483).
Conditions for a private prosecutor to
prosecute a criminal action:
a. The public prosecutor has a heavy work
schedule, or there is no public prosecutor
assigned in the province or city;
b. The private prosecutor is authorized in
writing by the Regional State Prosecutor
(RSP), Chief Prosecutor‘s Office;
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c. The authority of the private prosecutor must
be approved by the court; and
d. The private prosecutor shall continue to
prosecute the case until the end of the trial
unless the authority is withdrawn or
otherwise revoked. (A.M. No. 02-2-07-SC, 1
May 2002)
 In case of the withdrawal or revocation
of the authority of the private
prosecutor, the same must be approved
by court. (Memo Circ. No. 25, April 26,
2002, Regarding Amendment to Sec. 5, Rule
110)
 In appeals before the CA and the SC,
only the Solicitor General is authorized
to bring and defend actions in behalf of
the People of the Philippines.
 In all cases elevated to the
Sandiganbayan and from the
Sandiganbayan to the SC, the Office of
the Ombudsman, through the Special
Prosecutor shall represent the People of
the Philippines, except in cases filed
pursuant to E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986, involving the ill-gotten
wealth of Pres. Marcos, his wife, close
relatives, etc. (RA 8249, An Act Defining
the Jurisdiction of Sandiganbayan).
 Prosecution of criminal action in the
Municipal Trial Court or in a Municipal
Circuit Trial Court shal also be under the
direction and control of the prosecutor.
However, when the prosecutor assigned
is not available, the action may be
prosecuted by: (a) the offended part,
(b) any peace officer, (c) or public
officer charged with the enforcement of
the law violated (OCA Circular No. 39-
2002, August 21, 2002)
7.B.5. Sufficiency of Complaint Or
Information: (Rule 110, Sec. 6)
 The test of the information‘s sufficiency is
whether the crime is described in intelligible
terms and with such particularity with
reasonable certainty so that the accused is
duly informed of the offense charged. In
particular, whether information validly
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charges an offense depends on whether the
material facts alleged in the complaint or
information shall establish the essential
elements of the offense charged as defined
in the law. The raison d‘etre of the
requirement in the Rules is to enable the
accused to suitably prepare his defense.
(Miguel vs. Sandiganbayan, G.R. No. 172035,
July 4, 2012)
a. The name of the accused (Rule 110, Sec. 7).
b. The designation of the offense given by the
statute (Rule 110, Sec. 8).
c. The acts or omissions complained of
constituting the offense (Rule 110, Sec. 8 &
9).
d. The name of the offended party (Rule 110,
Sec. 12).
e. The approximate date of the commission of
the offense (Rule 110, Sec. 11); and
f. The place where the offense was committed
(Rule 110, Sec. 10).
When an offense is committed by more than
one person, all of them shall be included in the
complaint or information.
Name of the accused (Rule 110, Sec. 7)
Complaint or Information must state:
a. The name and surname of the accused; or
b. Any appellation or nickname by which he
has been or is known.
c. If his name cannot be ascertained, he must
be described under a fictitious name with a
statement that his true name is unknown.
d. If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such true name shall
be inserted in the complaint or information
and record.
 If the accused believes that there is a
mistake in his name as set forth in the
complaint or information, he should call the
attention of the court about it at the time of
arraignment. If he fails to do so he is
estopped from raising the same question
later on (People vs. Narvaez, 59 Phil. 738).
 Proving the identity of the accused as the
malefactor is the prosecution‘s primary
responsibility. Accordingly, the first duty of
the prosecution is not to prove the crime but
286 CENTER FOR LEGAL EDUCATION AND RESEARCH
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to prove the identity of the criminal, for
even if the commission of the crime can be
established, there can be no conviction
without proof of identity of the criminal
beyond reasonable doubt. (People v Espera,
706 SCRA 704, 719, October 2, 2013)
 A mistake in the name of the accused is not
equivalent, and does not necessarily amount
to, a mistake in the identity of the accused
especially when sufficient evident is adduced
to show that the accused is pointed to as
one of the perpetrators of the crime. (People
v Amodia, 584 SCRA 518, 535)
Is the phrase “conniving, confederating
and mutually helping with each other…”
sufficient in alleging conspiracy in the
Information?
 When conspiracy is charged as a crime, the
act of conspiring and all the elements of
said crime must be set forth in the
complaint or information. But when
conspiracy is not charged as a crime in itself
but only as the mode of committing the
crime as in the case at bar, there is less
necessity of reciting its particularities in the
Information because conspiracy is not the
gravamen of the offense charged. The
conspiracy is significant only because it
changes the criminal liability of all the
accused in the conspiracy and makes them
answerable as co-principals regardless of
the degree of their participation in the
crime. The liability of the conspirators is
collective and each participant will be
equally responsible for the acts of others,
for the act of one is the act of all. (Lazarte vs.
Sandiganbayan, G.R. No. 180122, March 13,
2009)
Place of Commission of the Offense (Rule
110, Sec. 10)
General Rule: The complaint or information is
sufficient if it can be understood from its
allegation that the offense was committed or
some of its essential ingredients occurred at
some place within the jurisdiction of the court.
Exception: The particular place where it was
committed constitutes an essential element of
the offense charged or is necessary for its

identification; e.g. Theft in National Library (Art.
311, RPC).
Date of Commission of the Offense (Rule
110, Sec. 11)
General Rule: It is not necessary to state the
precise date of the commission of the offense.
Exception: When it is a material ingredient of
the offense. e.g. Interruption of Religious
Worship (Art. 132, RPC).
The remedy against an indictment that fails to
allege the time of commission of the offense
with sufficient definiteness is a motion for a bill
of particulars.
 Failure to specify the exact date/time when
the rape occurred does not ipso facto make
the Information defective on its face. The
date/time of the commission of rape is not
material ingredient of said crime because
the gravamen of rape is carnal knowledge of
a woman, through force and intimidation
(People vs. Magbanua, 319 SCRA 719).
Exception: The date and time of the commission
of the crime of rape becomes important only
when it creates serious doubt as to the
commission of the rape itself or the sufficiency
of the evidence for purposes of conviction. In
other words, the "date of the commission of the
rape becomes relevant only when the accuracy
and truthfulness of the complainant‘s narration
practically hinge on the date of the commission
of the crime (PP vs Pareja G.R. No. 202122,
January 15, 2014)
Name of the Offended Party (Rule 110, Sec.
12)
The complaint or information must state:
a. The name and surname of the person
against whom or against whose property the
offense was committed; or
b. Any appellation or nickname by which such
person has been or is known.
c. If there is no better way of identifying him,
he must be described under a fictitious
name.
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In Offenses against Property:
1. If the name of the offended party is
unknown, the property must be described
with such particularity as to properly identify
the offense charged.
2. 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.
Note:
 In offense against property, if the subject
matter of the offense is generic and not
identifiable, such as money unlawfully
taken, an error in the designation of the
offended party is FATAL and would result in
the acquittal of the accused.
 If the subject matter of the offense is
specific and identifiable, an error in the
designation of the offended party is
IMMATERIAL.
If the Offended Party is a Juridical Person:
1. State its name or any name or designation
by which it is known or by which it may be
identified; and
2. No need to aver that it is a juridical person
or that it is organized in accordance with
law.
7.B.6. Designation of the Offense (Rule 110,
Sec. 8)
Complaint or Information shall state:
1. The designation of the offense given by the
statute. If there is no designation of the
offense, reference shall be made to the
section or subsection of the statute
punishing it.
 The failure to make a designation of the
offense must be disregarded as
constituting a mere defect in the form,
not tending to prejudice any substantial
right of the defendant. (US vs. Li-Dao, 2
Phil. 458).
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 The facts alleged therein, and not its
title, determine the nature of the crime.
(People vs. Magdowa, 23 Phil. 512).
2. The acts or omissions constituting the
offense; and
3. Qualifying and aggravating circumstances.
The qualifying and aggravating
circumstances cannot be appreciated even if
proved UNLESS alleged in the information
Note: Failure to allege aggravating and
qualifying circumstances cannot be cured by an
amendment of the information after the accused
entered his plea (People v Antonio, GR No. 144266,
November 27, 2002).
However, even though aggravating
circumstance cannot be considered to impose a
graver penalty, it can still be a basis for the
awarding of exemplary damages. (People v Evina,
GR No. 124830-31, June 27, 2003)
 For example, it is not sufficient to merely
state that the offense was committed with
treachery without alleging the facts that
gave rise to treachery. (Riano, W. (2016).
Criminal Procedure. P97)
 The real nature of the criminal charge is
determined not from the caption or
preamble of the information, or from the
specification of the provision of law alleged
to have been violated, which are mere
conclusions of law, but by the actual recital
of facts in the complaint or information.
(Jimenez vs. Hon. Sorongon, G.R. No. 178607,
December 5, 2012)
7.B.7. Cause of the Accusation (Rule 110, Sec.
9)
a. Acts or omissions complained of as
constituting the offense; and
b. Qualifying and aggravating circumstances.
These must be stated in ordinary and concise
language and not necessarily in the language
used in the statute but in terms sufficient:
1. To enable a person of common
understanding to know what offense is
being charged as well as its qualifying and
aggravating circumstances; and
2. For the court to pronounce judgment.
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3. Defendant cannot be convicted of an
offense of which he has not been informed
or for a crime higher than that alleged in the
information.
 Aggravating as well as qualifying
circumstances must be allged in the
information and proven during the trial
otherwise they cannot be considered
against the accused. Proof of the age of
the victim cannot consist merely of
testimony. Neither can a stipulation of
the parties with respect to the victims‘s
age be considered sufficient proof of
minority. This the same cannot be used
to impose the higher penalty of capital
punishment on the accused-appellant.
(People v Mejia, 595 SCRA 359)
 Allegations in a complex crime: the
allegations contained therein do not
necessarily have to charge a complex
crime as defined by law. It is sufficient
that the information contains allegations
which state that one offense was a
necessary means to commit the other.
(People vs. Alagao, 16 SCRA 879).
Where what is alleged in the information is a
complex crime and the evidence fails to support
the charge as to one of the component offenses,
the defendant can be convicted of the offense
proven. (Gonzaludo v People, GR No. 150910,
February 6, 2006)
7.B.8. Duplicity of the Offense, Exception
(Rule 110, Sec. 13)
 Duplicity is the joinder of 2 or more distinct
and separate offenses in one complaint or
information. It is a ground to quash the
information under Rule 117. See Sec. 13,
Rule 110 – A complaint or information must
charge only one offense except when the
law prescribes a single punishment for
various offenses. (Soriano vs. People, G.R. No.
159517-18, June 30, 2009)
Duplicity of the offense is a ground for a motion
to quash [Rule 117, Sec. 3(f)] .
Should the information be defective because of
duplicity (also called multifariousness), an
objection must be timely interposed by the
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accused before trial; otherwise, he is deemed to e. Crimes susceptible of being committed in

have waived such defect. Consequently, the
court may convict him for as many offenses as
are charged and proved, and impose on him the
penalty for each offense.
General Rule: A complaint or information must
charge only one offense.
Exceptions:
a. Complex crimes
b. Special complex crimes
c. When the other offense stated is only an
ingredient or essential element of the real
offense charged.
d. Continuous crime or delito continuado
various modes.
 Reckless imprudence is a single crime,
the consequences on persons and
property is material only to determine
the penalty. Thus, the prior acquittal or
conviction of reckless imprudence bars
the subsequent prosecution for the
same quasi-offense. (Ivler v. Judge San
Pedro, G.R. No. 172716, November 17,
2010)

7.B.9. Amendment or Substitution of Complaint or Information (Rule 110, 114)

Teehankee Jr. v. Madayag, G.R. No. 103102, March 6, 1992

AMENDMENT SUBSTITUTION

A complaint or information may be amended,

in form or in substance, without leave of
court, at any time before the accused enters
his plea. After the plea and during the trial, a
formal amendment may only be made with
If it appears at any time before judgment
leave of court and when it can be done
that a mistake has been made in charging
without causing prejudice to the rights of the
the proper offense, the court shall dismiss
accused. However, any amendment before
the original complaint or information upon
Provision plea, which downgrades the nature of the
the filing of a new one charging the proper
offense charged in or excludes any accused
offense in accordance with section 19, Rule
from the complaint or information, can be
119, provided the accused shall not be
made only upon motion by the prosecutor,
placed in double jeopardy.
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.

An amended information refers to the same

offense charged in the original information or
to an offense which necessarily includes or is
Substitution requires or presupposes that the
necessarily included in the original charge,
new information involves a different offense
Definition and hence substantial amendments to the
which does not include or is not necessarily
consequence information after the plea has been taken
included in the original charge, hence the
cannot be made over the objection of the
accused cannot claim double jeopardy
accused, for if the original information would
be withdrawn, the accused could invoke
double jeopardy
May be made before or after the defendant At any time before judgement provided
When made
pleads double jeopardy has NOT attached
Nature of the Necessarily involves a substantial change
Either formal or substantial changes
changes from the original charge

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AMENDMENT SUBSTITUTION
Substitution of information must be with
Necessity of leave Amendment before plea has been entered
leave of court as the original information has
of court can be effected without leave of court.
to be dismissed.
Necessity of
Where the amendment is only as to form, Substitution of information, another
another
there is no need for another preliminary preliminary investigation is entailed and the
preliminary
investigation and the retaking of the plea of accused has to plead anew to the new
investigation and
the accused. information.
retaking of plea
Where the second information involves the
same offense, or an offense which
necessarily includes or is necessarily included
in the first information, an amendment of the
RULE
information is sufficient; otherwise, where
the new information charges an offense
which is distinct and different from that
initially charged, a substitution is in order
Rules on Amendment:
Before the plea – The general rule is any
amendment, formal or substantial, may be
done without the need for leave of court
except when the amendment downgrades
the nature of the offense charged or it
excludes any accused from the complaint or
information.

Amendement before plea can be made only:

a. with leave of court;
b. upon motion by the prosecutor;
c. with notice to the offended party.
1. No judgment has yet been
After the plea – covers only formal
rendered;
amendment provided that:
2. The accused cannot be convicted of
a. Leave of court is obtained; AND
an offense charged or of any other
Limitations b. Amendment is not prejudicial to the
offense necessarily included
rights of the accused.
therein; and
Hence, after arraignment, a substantial
3. The accused would not be placed in
amendment is proscribed EXCEPT if the
double jeopardy.
same is BENEFICIAL to the accused. (Ricarze
v Court of Appeals, 515 SCRA 302, 315)

The test as to when the rights of an accused

are prejudiced by the amendment of a
complaint or information is: when a defense
of the accused, under the original complaint
or information would no longer be available
after the amendment is made, and when any
evidence the accused might have would be
inapplicable to the complaint or information,
as amended. (Kummer v People, 705 SCRA
490, 507-508, September 11, 2013)

 Petitioner is charged as a principal in the petitioner‘s participation as principal in the

case for murder. The addition of the phrase killing; it is a mere formal amendment (Buhat
―conspiring, confederating and helping one vs. CA, December 17, 1996).
another‖ does not change the nature of

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 To amend the Information so as to change
the charge from homicide to murder after
the petitioner has pleaded not guilty to the
former is proscribed by the 1st paragraph of
Sec. 13 of Rule 110. For certainly, a charge
from homicide to murder is not a matter of
form; it is one of substance with very serious
consequences (Dionaldo vs. Dacuycuy, 180
SCRA 736).
 Petitioner in this case maintains that, having
already pleaded "not guilty" to the crime of
homicide, the amendment of the crime
charged in the information from homicide to
murder is a substantial amendment
prejudicial to his right to be informed of the
nature of the accusation against him. He
utterly fails to dispute, however, that the
original information did allege that petitioner
stabbed his victim "using superior strength".
And this particular allegation qualifies a
killing to murder, regardless of how such a
killing is technically designated in the
information filed by the public prosecutor
(Buhat vs. CA, December 17, 1996).
Opposing View: The Court reasoned that while
the amended information was for murder, a
reading of the information shows that the only
change made was in the caption of the case; and
in the opening paragraph or preamble of the
information, with the crossing out of word
―Homicide‖ and its replacement by the word
―Murder‖. There was NO change in the recital of
facts constituting the offense charged or in the
determination of the jurisdiction of the court.
The averments in the amended information for
murder are exactly the same as those already
alleged in the original information for homicide,
as there was not at all any change in the act
imputed to the accused. Thus, the Court found
the amendment made in the caption and
preamble from ―Homicide‖ to ―Murder‖ as purely
FORMAL. (Pacoy v Cajigal, 534 SCRA 338, 350-351)
Variance between the indictment and the
proof
 When the offense proved is less serious
than, and is necessarily included in, the
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offense charged, the defendant shall be
convicted of the offense proved.
 When the offense proved is more serious
than and includes the offense charged, the
defendant shall be convicted only of the
offense charged.
 When the offense proved is neither included
in nor does it include, the offense charged
and is different there from, the court should
dismiss the action and order the filing of new
information charging the proper offense.
(Rule 110, Section 14)
7.B.10. Venue of Criminal Actions (Section
15, Rule 110)
Venue, in criminal cases, is:
1. Jurisdictional;
2. Cannot be the subject of agreement; and
3. Ground for motion to quash if erroneously
laid.
General Rule: 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.
Exceptions:
a. Cases originally cognizable by the
Sandiganbayan, as its jurisdiction is national
in scope; need not be tried in the place
where the act was committed;
b. Libel: The action may be instituted at the
election of the offended or suing party in the
province or city:
 Where the libelous article was printed and
first published;
 If one of the offended parties is a private
individual, where said private individual
actually resides at the time of the
commission of the offense;
 If the offended party is a public official,
where the latter holds office at the time
of the commission of the offense;
c. Continuing offenses;
d. Kidnapping or illegal detention, whenever
the deprivation of liberty was carried out
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(People vs Parulan, 88 Phil 615). The same
rule applies to abduction with rape (People
vs. Gorospe, et al. G.R. No. 51513, May 15,
1984).
e.
f. Piracy, which is triable anywhere;
g. Extraterritorial crimes pursuant to Art. 2 of
the RPC – cognizable by the court where the
criminal action is first filed;
h. Offenses committed in a train, aircraft or
other vehicle while in the course of the trip;
i.
j. The criminal action shall be instituted and
tried in the court of any municipality or
territory where such vehicle passed during
its trip, including the place of its departure
and arrival.
k. As regards offenses 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. (Calme vs. CA, G.R. No. 116688, August 30,
1996)
l. The crime of perjury committed through the
making of a false affidavit under Art. 183 of
the RPC is committed at the time the affiant
subscribes and swears to his or her affidavit
since it is at that time that all the elements
of the crime of perjury are executed. When
the crime is committed through false
testimony under oath in a proceeding that is
neither criminal nor civil, venue is at the
place where the testimony under oath is
given. If in lieu of or as supplement to the
actual testimony made in a proceeding that
is neither criminal nor civil, a written sworn
statement is submitted, venue may either be
at the place where the sworn statement is
submitted or where the oath was taken as
the taking of the oath and the submission
are both material ingredients of the crime
committed. In all cases, the determination of
venue shall be based on the acts alleged in
the Information to be constitutive of the
crime. (Union Bank vs. Philippines, supra)
m. Where the Supreme Court, pursuant to its
constitutional powers, orders change of
venue or place of trial to avoid miscarriage
of justice. (Sec. 5[4], Art. VIII, 1987 Constitution
of the Philippines)
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7.B.11. Intervention of the Offended Party
in Criminal Action (Rule 110, Sec. 16)
General Rule: Offended party has the right to
intervene by counsel in the prosecution of the
criminal action where the civil action for recovery
of civil liability is instituted in criminal action
pursuant to Rule 111.
Exceptions:
1. Where from the nature of the crime and the
law defining and punishing it, NO civil liability
arises in favor of the offended party; and
2. Where the offended party has waived his
right to civil indemnity OR has expressly
reserved his right to institute a civil action
OR has already instituted said action.
7.C. PROSECUTION OF CIVIL ACTION (Rule
111)
 Our law recognizes two kinds of acquittal,
with different effects on the civil liability of
the accused. First is an acquittal on the
ground that the accused is not the author of
the act or omission complained of. This
instance closes the door to civil liability, for a
person who has been found to be not the
perpetrator of any act or omission cannot
and can never be held liable for such act or
omission. There being no delict, civil liability
ex delicto is out of the question, and the civil
action, if any, which may be instituted must
be based on grounds other than the delict
complained of. This is the situation
contemplated in Rule III of the Rules of
Court. The second instance is an acquittal
based on reasonable doubt on the guilt of
the accused. In this case, even if the guilt of
the accused has not been satisfactorily
established, he is not exempt from civil
liability which may be proved by
preponderance of evidence only. This is the
situation contemplated in Article 29 of the
Civil Code, where the civil action for
damages is "for the same act or omission."
(Castillo vs. Salvador, G.R. No. 191240, July 30,
2014 citing Manantan vs. Court of Appeals, G.R.
No. 107125, January 29, 2001)

7.C.1. Rule on implied institution of civil
action with criminal action (Rule 111, Sec. 1)
General Rule: 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.
Exceptions:
1. When the offended party waives the civil
action
2. When the offended party reserves his right
to institute a separate civil action;
3. When offended party institutes a civil action
prior to the criminal action.
4. Because of the rule that the civil action is
impliedly instituted with the criminal action,
the trial court should, in case of conviction,
state the civil liability or damages caused by
the wrongful act or omission to be recovered
from the accused by the offended party, if
there is any and if the filing of the civil action
has not been reserved, previously instituted
or waived. (Hun Hyung Park v Eun Wong Choi,
515 SCRA 502, 513).
 Art. 104, RPC: The civil liability may
consist of restitution, reparation of the
damage caused or indemnification of
consequential damages.
 Civil liability is not part of the penalty for
the crime committed (Ramos vs. Gonong,
72 SCRA 565).
 In criminal prosecutions, the civil action
for the recovery of civil liability that is
deemed instituted with the criminal
action refers only to that arising from the
offense chared. The lower court erred in
adjudging that Ospital ng Maynila is
solidarily liable with Dr. Solidium for the
damages despite the obvious fact that
Ospital ng Maynila, being an artificial
entity, had not been charged along with
Dr. Solidium. Ospital ng Maynila could be
held civilly liable only when subsidiary
liability would be enforceable pursuant to
Articl 103 of the Revised Penal Code
(Solidium v. People, 718 SCRA 263)
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When reservation shall be made
1) Before the prosecution starts to present its
evidence; and
2) Under circumstances affording the offended
party reasonable opportunity to make such
reservation.
 Where the civil action is instituted
separately, the general rules of venue in
civil actions apply, except in case of libel,
which has a special rule of venue.
 Where there is waiver/reservation, the
private prosecutor disqualifies himself
from the criminal proceeding.
Instances when party is not authorized to
make reservation:
 B.P. 22 cases (Rule 110, Sec. 1, Par. b)
 Cases cognizable by Sandiganbayan (Sec. 4 of
PD 1606, Sandiganbayan Act, as amended by RA
8249)
 Tax cases (Sec. 7, Par. b, No. 1, RA 9282, An
Act Expanding the Jurisdiction of CTA)
Doctrine of primacy of criminal cases over
civil actions
Rules:
1. After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final
judgment in the criminal action.
2. If the criminal action is filed after the said
civil action has already been instituted, the
latter shall be suspended in whatever stage
it may be found before judgment on the
merits.
3. Suspension shall last until final judgment is
rendered in the criminal action.
Exceptions to the Rule:
a. Independent civil actions;
b. Prejudicial civil actions;
c. When the civil case is subsequently
consolidated with the criminal action.
d. Where the civil action does not arise from
the offense charged in the criminal case
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 Even if the civil action is suspended, the
court wherein it is pending can issue
auxiliary writs therein, such as
preliminary injunction or attachment,
appointment of receivers and similar
processes which do not necessarily go
into the merits of the case (Babala vs.
Abano, 90 Phil. 827).
Rules on consolidation of criminal and civil
action
a. Done before judgment on the merits is
rendered in the civil action, upon motion of
the offended party;
b. Not mandatory;
c. Evidence already adduced in the civil action
deemed automatically reproduced in the
criminal action without prejudice to the right
of the prosecution to cross-examine the
witnesses presented by the offended party in
the criminal case and of the parties to
present additional evidence. (Rule 111, Sec.2,
par.2) (Rule 111, Sec.2, par.2)
When acquittal in a criminal action bars
the civil action arising therefrom
a. The judgment of acquittal holds that the
accused did not commit the acts imputed to
him.
b. The accused was not guilty of criminal, or
even civil negligence.
When acquittal in civil case does not bar
criminal action
1. Where acquittal is based on reasonable
doubt;
2. Where the assessed liability is not criminal
but only civil in nature;
3. Where the civil liability does not arise from
or is not based upon the criminal act of
which the accused was acquitted.
 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
294 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
may arise did not exist (Sapiera vs. CA,
314 SCRA 370).
Judgment in civil action not a bar to a
criminal action for the same act or
omission.
A final judgment rendered in a civil action
absolving the defendant from civil liability is not a
bar to a criminal action against the defendant for
the same act or omission subject of the civil
action. (Rule 111, Sec. 5)
 The extinction of civil liability refers
exclusively to civil liability arising from crime
(delict); whereas the civil liability for the
same act arising from other sources of
obligation (law, contract, quasi-contract,
quasi-delict) is not extinguished even by a
declaration in the criminal case that the
criminal act charged has not happened or
has not been committed by the accused
(Tayag v Alcantara, GR L-50959, July 23 1980).
\
7.C.2. When Civil Action May Proceed
Independently
An independent civil action compromising of
Article 32, 33, 34 and 2176 of the Civil Code,
may proceed independently of the criminal action
and shall require only a preponderance of
evidence. In no case shall the offended party
recover damages twice for the same act or
omission.
Rules on independent civil actions (Rule 111,
Sec.3)
1. Involve cases provided in Arts. 32, 33, 34 &
2176 of the Civil Code.
2. The civil liability under all the said articles
arises from the same act or omission of the
accused.
3. Only preponderance of evidence is required.
4. The offended party may not recover
damages twice for the same act or omission.
5. May be brought by the offended party during
the pendency of the criminal case.
Note: There is no more need for a reservation
(Casupanan vs. Laroya, 388 SCRA 28).

General Rule: Independent civil action is
deemed instituted with criminal action.
Exception: When the civil action is filed prior to
criminal action.
Exception to the Exception: When the
prosecution of independent civil action is parallel
to the prosecution of criminal action, there is
neither suspension of independent civil action
nor consolidation thereof.
 Under Section 1 of the present Rule 111,
what is "deemed instituted" with the criminal
action is only the action to recover civil
liability arising from the crime or ex-delicto.
All the other civil actions under Articles 32,
33, 34 and 2176 of the Civil Code are no
longer "deemed instituted," and may be filed
separately and prosecuted independently
even without any reservation in the criminal
action. The failure to make a reservation in
the criminal action is not a waiver of the
right to file a separate and independent civil
action based on these articles of the Civil
Code. The prescriptive period on the civil
actions based on these articles of the Civil
Code continues to run even with the filing of
the criminal action. Verily, the civil actions
based on these articles of the Civil Code are
separate, distinct and independent of the
civil action "deemed instituted" in the
criminal action. (Casupanan vs. Laroya, G.R. No.
145391, August 26, 2002)
 Section 2, Rule 111 of the present Rules did
not change the rule that the separate civil
action, filed to recover damages ex-delicto,
is suspended upon the filing of the criminal
action. Section 2 of the present Rule 111
also prohibits the filing, after commencement
of the criminal action, of a separate civil
action to recover damages ex-delicto.
(Casupanan vs. Laroya, supra)
Rule where the civil action has been filed
separately and trial thereof has not yet
commenced
1. It may be consolidated with the criminal
action upon application with the court trying
the latter case.
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2. Should be done before judgment on the
merits in the civil action.
3. If the application is granted, the trial of both
actions shall proceed in accordance with Sec.
2 of this Rule governing consolidation of the
civil and criminal actions.
4. An independent civil action cannot be
consolidated with a criminal action.
No counterclaims, cross-claims or 3rd party
complaints are allowed in a criminal proceeding.
Any claim which would have been the subject
thereof may be litigated in a separate civil action.
Rules on civil aspect involving violation of
B.P. 22
 The corresponding civil action shall be
deemed instituted.
 No reservation to file such civil action
separately shall be allowed.
 The filing fees shall be paid in full based on
the amount of the check involved, which
shall be considered as the actual damages
claimed.
 Additional filing fees shall be paid if other
forms of damages are sought. If the
amounts thereof are not alleged but any of
these damages are subsequently awarded,
the filing fees based on the amount awarded
shall constitute a first lien on the judgment.
 Filing fee is due for each count.
7.C.3. When Separate Civil Action is
Suspended
1. After the commencement of the criminal
action, a separate civil action which the
offended party has reserved cannot be
instituted until final judgment has been
rendered in the criminal action.
2. If the civil action has already been instituted
before the criminal action, the civil action
shall be suspended until final judgment in
the criminal action is rendered. In such case,
the offended party has the option of
consolidating the civil action with the
criminal proceeding.
During the pendency of criminal action, the
running of the prescriptive period of the civil
action which cannot be instituted separately
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or whose proceeding has been suspended
shall be tolled (Sec 2 Rule 111, Rules of
Court
3. The bar on the institution or suspension of
the separate civil actions has the following
exceptions:
a. In cases of independent civil actions
under Articles 32, 33, 34 and 2176 of the
Civil Code.
b. When the civil action raises a prejudicial
question,
c. Where the civil action is consolidated
with the criminal action,
d. When the civil action is not one intended
to enforce the civil liability arising from
the crime.
7.C.4. Effect of Death on Civil Actions
(Rule 111, Sec. 4)
If accused dies:
a. Before arraignment – the case shall be
dismissed without prejudice to any civil
action the offended party may file against
the estate of the deceased.
b. After arraignment and during the pendency
of the criminal action – the death of the
accused shall extinguish the civil liability
arising from the delict.
 However, the independent civil action
instituted under Sec. 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 (People vs. Bayotas, G.R. No.
102007 September 2, 1994)
 The death of the accused pending appeal of
his conviction extinguished his criminal
liability as well as the civil liability ex delicto.
Corollarily, the claim for civil liability survives,
if the same may also be predicated on a
source of obligation other than delict. (People
vs. Bayotas, G.R. No. 102007 September 2, 1994)
5.3.4 Suspension by reason of prejudicial
question (Rule 111, Sec. 6)
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7.C.5. Prejudicial Question
Is that which arises in a case, the resolution of
which is the logical antecedent of the issue
involved therein, and the cognizance of which
pertains to another tribunal. It must be
determinative of the criminal case before the
court but the jurisdiction to try and resolve must
be lodged in another court or tribunal.
Elements of prejudicial question:
 Previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action.
 The resolution of such issue determines
whether or not the criminal action may
proceed. (Rule 111, Sec. 7)
Illustration – Where the husband was
charged with bigamy by the 2nd wife, a civil
action previously brought by said husband
for the annulment of the marriage on the
ground that he was forced to contract said
subsequent marriage is prejudicial to the
criminal action.
 Jurisdiction to try said question must be
lodged in another tribunal (Magestrado v.
People, 527 SCRA 125, 140)
 One of the elements of the crime estafa with
abuse of confidence is a demand made by
the offended party to the offender. Under
the circumstances, since the alleged
offended party is the corporation, the validity
of the demand for the delivery of the subject
vehicles rests upon the authority of the
person making such a demand on the
company‘s behalf. If supposed authority is
found to be defective, it is as if no demand
was ever made, hence, the prosecution for
estafa cannot prosper. (Riano, W. (2016).
Criminal Procedure. Pp 168-169)
Where to file petition for suspension by
reason of prejudicial question (Rule 111, Sec.
a. During Preliminary Investigation – in the
office of the prosecutor or the court
conducting the preliminary investigation.
b. During Trial – in the same court trying the
criminal action at any time before the
prosecution rests.

c. The doctrine of prejudicial question does not
apply where no civil but only administrative
case is involved. There is no prejudicial
question where one case is administrative
and the other civil (Te v. Court of Appeals, 346
SCRA 327)
 In the instant case, Art. 36 of the Civil
Code and Sec. 7 of Rule 111 of the Rules
of Court are susceptible of an
interpretation that would harmonize both
provisions of law. The phrase "previously
instituted civil action" in Sec. 7 of Rule
111 is plainly worded and is not
susceptible of alternative interpretations.
The clause "before any criminal
prosecution may be instituted or may
proceed" in Art. 36 of the Civil Code
may, however, be interpreted to mean
that the motion to suspend the criminal
action may be filed during the
preliminary investigation with the public
prosecutor or court conducting the
investigation, or during the trial with the
court hearing the case. (Dreamwork
Construction, Inc. vs. Janiola, G.R. No.
184861, June 30, 2009)
 The rationale behind the principle of
suspending a criminal case in view of a
prejudicial question is to avoid two
conflicting decisions. (Magestrado vs.
People, G.R. No. 148072, July 10, 2007)
Annulment/ Nullity of Marriage NOT a
prejudicial question to parricide, bigamy
and concubinage
 At the time of the commission of the alleged
crime, petitioner and respondent were
married. The subsequent dissolution of their
marriage, in case the petition in [the civil
case] is granted, will have no effect on the
alleged crime that was committed at the
time of the subsistence of the marriage. In
short, even if the marriage between
petitioner and respondent is annulled,
petitioner could still be held criminally liable
since at the time of the commission of the
alleged crime, he was still married to
respondent. (Pimentel vs. Pimentel, G.R. No.
172060, September 13, 2010)
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An independent civil action does not operate as a
prejudicial question.
 An independent civil action proceeds
independently of the criminal action (Sec. 3,
Rule 111 of the ROC). Because of the [said]
rule, ―An independent civil action based on
fraud, initiated by the defrauded party does
not raise a prejudicial question to stop the
proceedings in a pending criminal
prosecution of the defendant for estafa
through falsification. The is because the
result of the independent civil action is
irrelevant to the issue of guilt or innocence
of the accused.‖ (Consing, Jr. v People, 701
SCRA 132, 133, July 15, 2013)
7.C.6. Rules on Filing Fees of Civil Actions
Deemed Instituted
a. No filing fees are required for actual
damages, unless required by the Rules.
Example in BP 22 cases.
b. When the civil liability is sought to be
enforced by way of moral, nominal,
temperate, or exemplary damages without
specifying the amount thereof in the
complaint or information, the filing fees
thereat shall constitute a first lien on the
judgment awarding such damages.
c. Where the amount of damages, other than
actual, is specified the corresponding filing
fees shall be paid by the offended party
upon the filing thereof in court.
7.D. PRELIMINARY INVESTIGATION (Rule
112)
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. (Section 1, Rule 112)
 A preliminary investigation is conducted
before an accused is placed on trial to secure
the innocent against hasty, malicious, and
oppressive prosecution; to protect him from
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an open and public accusation of a crime, as
well as from the trouble, expenses, and
anxiety of a public trial. It is also intended to
protect the State from having to conduct
useless and expensive trials. Thus, a
preliminary investigation is not a mere
formal or technical right but is a substantive
right. (Marcelo vs. Villordon, G.R. No. 173081,
December 15, 2010 citing Uy vs. Office of the
Ombudsman, G.R. Nos. 156399-400, 27 June
2008, 556 SCRA 73, further citing Duterte v.
Sandiganbayan, 352 Phil. 557, 1998)
7.D.1. Nature of Right to Preliminary
Investigation
 Not part of the due process clause of the
Constitution but is purely statutory. (Kilusang
Bayan v. Domiguez, G.R. No. 150091 April 2,
2007)
 However, if the law provides for preliminary
investigation and such right is claimed by the
accused, a denial thereof is a denial of due
process and prohibition will lie against the
trial court or, if a judgment of conviction has
already been rendered, on appeal the same
shall be reversed and the case remanded for
preliminary investigation. (Govs. CA, G.R. No.
101837, February 11, 1992)
 Since it is a personal right, the same may be
waived expressly or impliedly. If waived, the
fiscal may forthwith file the corresponding
information with the proper court. (Marinas
vs. Siochi, L-25707, May 14, 1981)
 Since the records do not show whether the
accused-appellant asked for a preliminary
investigation after the case had been filed in
court, as in fact, the accused-appellant
signified his readiness to be arraigned, the
Court can only conclude that he waived his
right to have a preliminary investigation,
when he did, in fact, pleaded "Not Guilty"
upon his arraignment. (People vs. Valencia,
G.R. Nos. 94511-13. September 18, 1992)
 The absence of preliminary investigation
does not affect the jurisdiction of the court
or invalidate the information if no objection
was raised by the accused before entry of
his plea. (People vs. De Asis G.R. No. 105581,
December 7, 1993)
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 Merely inquisitorial; Not a trial of the case on
the merits.
 Merely determines the existence of probable
cause and to file the information if he finds it
to be so.
 Can be conducted ex parte if the respondent
cannot be subpoenaed or does not appear
after due notice.
 Does not place the person against whom it is
taken in jeopardy.
 Preliminary investigation is a function that
belongs to the public prosecutor and
ultimately, with the Secretary of Justice
(Uniliver Philippines, Inc. v. Tan, G.R. No.
179367, January 29, 2014)
 Preliminary investigation is essentially an
inquisitorial proceeding, and often, the only
means of ascertaining who may be
reasonably charged with a crime.
Prosecutors control and direct the
prosecution of criminal offenses, including
the conduct of preliminary investigation,
subject to review by the Secretary of Justice.
The duty of the Court in appropriate cases is
merely to determine whether the executive
determination was done without or in excess
of jurisdiction or with grave abuse of
discretion. (Heirs of Tria vs. Atty. Obias, G.R. No.
175887, November 24, 2010)
7.D.2. Purposes of Preliminary
Investigation:
a. To inquire concerning the commission of a
crime and the connection of the accused
with it, in order that he may be informed of
the nature and character of the crime
charged against him, and, if, there is
probable cause for believing him guilty, that
the State may take the necessary steps to
bring him to trial;
b. To preserve the evidence and to keep the
witnesses within the State‘s control;
c. To determine the amount of bail, if the
offense is bailable (Callo-Claridad v Esteban,
694 SCRA 185, March 30, 2013).
This Court need not overemphasize that in a
preliminary investigation, the public prosecutor
merely determines whether there is probable
cause or sufficient ground to engender a well-
founded belief that a crime has been committed,
and that the respondent is probably guilty
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thereof and should be held for trial. It does not preliminary investigation but he must sign a
call for the application of rules and standards of waiver of the provisions of Art. 125 of
proof that a judgment of conviction requires Revised Penal Code. (Riano, W. (2016).
after trial on the merits. The complainant need Criminal Procedure. p. 197-198)
not present at this stage proof beyond
reasonable doubt. A preliminary investigation Preliminary Preliminary
does not require a full and exhaustive investigation examination
presentation of the parties' evidence. Precisely, Quantum of evidence:
there is a trial to allow the reception of evidence probable cause
for both parties to substantiate their respective Executive function Judicial function
finding of probable The purpose is for the
claims.
cause for the purpose of issuance or non-issuance
filing an information of the warrant of arrest
When preliminary investigation is required a process to determine
conducted by the judge,
whether a crime is
General Rule: A preliminary investigation is to determine the
committed and the
probability also of the
required to be conducted before the filing of a accused or respondent
accused having
complaint or information for an offense where is probably guilty
committed a crime and
the penalty prescribed by law is at least 4 years, thereof and this is
therefore a warrant of
2 months and 1 day without regard to the fine. conducted by the
arrest is issued
prosecutor
Exception: Sec. 7, Rule 112 (upon inquest
proceedings, or affidavit of the offended party or Important: A.M. No. 05-8-26-SC
arresting officer or person in lawful warrantless
arrests)  The Ombudsman is given primary jurisdiction
over cases cognizable by the Sandiganbayan.
Note: On cases governed by the Rules on He is authorized to take over at any stage,
Summary Procedure, the prosecutor may not from any investigating body, the
conduct preliminary investigation anymore. investigation of such cases; a power not
given to investigative bodies (DOJ vs. Liwag,
451 SCRA 83; Alejandro v. Office of the
 The Revised Rule on Summary Procedure
Ombudsman Fact-Finding and Intelligence
does not provide for a preliminary Bureau, GR 173121, 3 April 2013; Bueno v. Office
investigation prior to the filing of a criminal of the Ombudsman, GR 191712, 17 September
case under said Rule. [A judge] cannot be 2014).
allowed to arbitrarily conduct proceedings
beyond those specifically laid down by the Guidelines as to the clarificatory hearing:
Revised Rule on Summary Procedure,
thereby lengthening or delaying the a. The hearing may be set only when there are
resolution of the case, and defeating the facts and issues to be clarified from a party
express purpose of said Rule. (Uy vs. Judge or a witness.
Javellana, A.M. No. MTJ-07-1666, September 5, b. The parties can be present at the hearing
2012) but without the right to examine or cross-
examine.
 If a person is arrested lawfully without a
c. The parties may submit to the investigating
warrant involving an offense which requires
officer questions which may be asked to the
preliminary investigation, an information or
party or witness concerned.
complaint may be filed against him without
d. The hearing shall be held within 10 days
need for a preliminary investigation. Instead,
from submission of the counter-affidavits
the person arrested shall be required to
and other documents or from the expiration
undergo an inquest. This proceeding is
of the period for their submission.
required before a complaint or information
e. The hearing shall be terminated within 5
may be filed against the person arrested.
days.
However, such person may ask for a

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f. Resolution, within 10 days after investigation
by investigating officer.
Duties of the investigating prosecutor (Rule
112, Sec. 4)
If the investigating prosecutor finds CAUSE
to hold the respondent for trial:
1. Prepare the resolution and information;
2. Certify under oath in the information that:
a. He, or as shown by the record, an
authorized officer, has personally
examined the complainant and his
witnesses;
b. That there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
c. That the accused was informed of the
complaint and of the evidence submitted
against him;
d. That he (accused) was given an
opportunity to submit controverting
evidence.
e. Within 5 days from his resolution, forward
the record of the case to the:
 Provincial or City Prosecutor; or
 Chief state Prosecutor, or
To the Ombudsman or his deputy in
cases of offenses cognizable by the
Sandiganbayan in the exercise of
original jurisdiction.
 Act on the resolution within 10 days from
their receipt thereof and shall immediately
inform the parties of such action.
If the investigating prosecutor finds no
cause to hold respondent for trial- He shall
recommend the dismissal of the complaint.
A complaint or information may be dismissed by
an investigating prosecutor only with the prior
written authority or approval of the provincial or
city prosecutor; or chief state prosecutor; or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends
the dismissal of the complaint but his
recommendation is disapproved by the provincial
or city prosecutor or chief state prosecutor or the
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Ombudsman or his deputy on the ground that a
probable cause exists, the latter may:
a. by himself, file the information against the
respondent; or
b. direct another assistant prosecutor or state
prosecutor to do so without conducting
another preliminary investigation.
7.D.3. Who may conduct the Determination
of the Existence of Probable Cause
a. Provincial or city fiscal and their assistants;
b. National and regional state prosecutor; and
c. Such other official as may be authorized by
law such as: the COMELEC, Ombudsman and
PCGG.
Note: Under Sec. 45 of the Revised Securities
Act, the Securities and Exchange Commission
(SEC) has the authority to make such
investigations as it deems necessary to determine
whether any person has violated or is about to
violate any provision of the law. After a finding
that a person has violated the Securities
Regulation Code (RA 8799), the SEC may refer the
case to the DOJ for preliminary investigation and
prosecution.
Instances when probable cause needs to
be established
1. Secs. 1 and 3 of Rule 112: By the
investigating officer, 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. A
preliminary investigation is required before
the filing of a complaint or information for an
offense where the penalty prescribed by law
is at least 4 years, 2 months and 1 day
without regard to the fine;
2. Secs. 5 and 8 of Rule 112: By the judge, to
determine whether a warrant of arrest or a
commitment order, if the accused has already
been arrested, shall be issued and that there
is a necessity of placing the respondent under
immediate custody in order not to frustrate
the ends of justice;

3. Sec. 5(b) of Rule 113: By a peace officer or a
private person making a warrantless arrest
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
Sec. 4 of Rule 126: By the judge, to determine
whether a search warrant shall be issued, and
only 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.
7.D.4. Resolution of the Investigating
Prosecutor
If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare
the resolution and information where he shall
certify under oath that:
a. He or an authorized officer personally
examined the complainant and his
witnesses;
b. There is reasonable ground to believe that a
crime has been committed and the accused
is probably guilty thereof;
c. The accused was informed of the complaint
and the evidence against him;
d. The accused was given an opportunity to
submit controverting evidence;
e. Otherwise, the investigating prosecutor shall
recommend the dismissal of the case;
f. No complaint or information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or
approval of the provincial or city prosecutor
or the Ombudsman or his deputy.
7.D.5. Review of the Resolution
 An aggrieved party may appeal by filing a
verified petition for review with the Secretary
of Justice, and by furnishing copies thereof
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to the adverse party and the Prosecution
Office issuing the appealed resolution
 The appeal shall be taken within 15 days
from receipt of the resolution, or of the
denial of the motion for reconsideration/
reinvestigation if one has been filed within
15 days from receipt of the assailed
resolution. Only one motion for
reconsideration shall be allowed.
 Unless the Secretary directs otherwise, the
appeal shall not stay the filing of the
corresponding information in court on the
basis of the finding of probable cause in the
appealed resolution.
The determination of probable cause is, under
our criminal justice system, an executive function
that the courts cannot interfere with in the
absence of grave abuse of discretion (Salapuddin
v Court of Appeals, 691 SCRA 578, 597, February 25,
2013). Such function is lodged, at the first
instance, with the public prosecutor who
conducted the preliminary investigation, and
ultimately, with the Secretary of Justice (Unilever
Philippines, Inc. v Tan, GR No. 179367, January 29,
2014).
Review power of the Secretary of Justice
(DOJ Circular No. 70, July 3, 2000)
 By implication, the rule authorized the
parties concerned to file a petition to the
Sec. of Justice for the review of the
resolution (Public Utilities Dept., Olangapo City
vs. Guingona, Jr., 365 SCRA 467).
 The aggrieved party may appeal to the
Secretary of Justice within 15 days from
receipt of the resolution of the prosecutor, or
of the denial of a timely motion for
reconsideration/ reinvestigation. Only one
motion for reconsideration shall be allowed.
The Secretary of Justice may:
1. Order for the reinvestigation of the case;
2. Reverse, modify or affirm the appealed
resolution;
3. Act on a motion for reconsideration;
4. File the information without conducting
another preliminary investigation; or dismiss
the information filed by the prosecutor
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(Community Rural Bank of Guimba v Talavera, AM
No. RTJ-05-1909, April 6, 2005).
When appeal shall not be given due
course:
1. If an information has been filed pursuant to
the appealed resolution; and
2. The accused has already been arraigned.
3. An appeal shall not bar the filing of the
corresponding information, unless otherwise
directed by the Secretary.
 In case appeal to the Sec. of Justice was
denied and so with the motion for
reconsideration, a petition for certiorari with
the Court of Appeals on the ground of grave
abuse of discretion is the next remedy
(Filandamus Phrama, Inc. vs. CA, 426 SCRA 460).
How may then can the resolution of the
Secretary of Justice be reviewed:
1. By filing Petition for Certiorari under Rule 65
of the ROC. The Court of Appeals is clothed
with the jurisdiction to review the resolution
issued by the Secretary of Justice through a
petition for certiorari under Rule 65 of the
Rules of Court, solely on the ground that the
Secretary committed grave abuse of
discretion amounting to lack of jurisdiction
(Argovan v San Miguel Corporation, 702 SCRA
191, 197, July 24, 2013);
2. By filing an appeal before the Office of the
President and the decision of the latter may
be appealed before the CA pursuant to Rule
43 of the ROC.
Appeal to the Office of the President
Memorandum Circular No. 58 (30 June 1993)
provides:
 No appeal from or petition for review of
decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations of
criminal cases shall be entertained by the
Office of the President, except those
involving offenses punishable by reclusion
perpetua to death wherein new and material
issues are raised which were not previously
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presented before the Department of Justice
and were not ruled upon in the subject
decision/order/resolution, in which case the
President may order the Secretary of Justice
to reopen/review the case, provided, that,
the prescription of the offense is not due to
lapse within six (6) months from notice of
the questioned resolution/order/decision,
and provided further, that, the appeal or
petition for review is filed within thirty (30)
days from such notice.
Henceforth, if an appeal or petition for
review does not clearly fall within the
jurisdiction of the Office of the President, as
set forth in the immediately preceding
paragraph, it shall be dismissed outright and
no order shall be issued requiring the
payment of the appeal fee, the submission of
appeal brief/memorandum or the elevation
of the records to the Office of the President
from the Department of Justice.
If it is not readily apparent from the appeal
or petition for review that the case is within
the jurisdiction of the Office of the President,
the appellant/petitioner shall be ordered to
prove the necessary jurisdictional facts,
under penalty of outright dismissal of the
appeal or petition, and no order to pay the
appeal fee or to submit appeal
brief/memorandum or to elevate the records
of the case to the Office of the President
shall be issued unless and until the
jurisdictional requirements shall have been
satisfactorily established by the
appellant/petitioner.
As the word "may" in the second paragraph
of Memorandum Circular No. 58 signifies, it
is not mandatory for the President to order
the DOJ to reopen or review [the] case even
if it raised "new and material issues"
allegedly not yet passed upon by the DOJ.
Hence, the OP acted well within its authority
in reexamining the merits of [the] appeal in
resolving the motion for reconsideration.
(Heirs of Tria v. Obias, GR 175887, 24 November
2010)
In the event of an adverse decision against the
appellant, a verified petition for review may be
taken to the Court of Appeals within 15 days
from notice of the final order of the Office of the

President and following the procedures set forth
under Rule 43 of the ROC.
Appeal from the resolution of the
Ombudsman (Fabian vs. Desierto G.R. No. 129742,
September 16, 1998)
Involving:
Administrative and disciplinary cases – with the
CA thru Petition for Review under Rule 43 of
Rules of Court.
Criminal cases – with the SC thru extraordinary
remedy of Certiorari under Rule 65 of Rules of
Court.
7.D.6. When Warrant of Arrest may Issue
(Rule 112, Sec. 5, As Amended by Am 05-8-26-Sc)
By the Regional Trial Court / By the
Municipal Trial Court
 The procedure for the issuance of a warrant
of arrest by the judge shall be the same as
that of the RTC.
 However, without waiting for the conclusion
of the preliminary 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 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.
It is enough that the judge personally evaluates
the prosecutor‘s report and supporting
documents showing the existence of probable
cause for the indictment and, on the basis of his
evaluation, he finds no probable cause to
disregard the prosecutor‘s resolution and require
the submission of additional affidavits of
witnesses to aid him in determining its existence
(Ocampo v Hon. Abando et al., GR No. 176830,
February 11, 2014).
“Searching questions and answers” means
taking into consideration the purpose of the
preliminary investigation which is whether there
is sufficient ground to engender a well-founded
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belief that a crime has been committed and that
the respondent is probably guilty thereof and
should be held for trial, such questions as may
have the tendency to show the commission of
the crime and the perpetrator thereof.
Probable cause
 Probable cause, for the purpose of filing a
criminal information, has been defined as
such facts as are sufficient to engender a
well-founded belief that a crime has been
committed and that respondent is probably
guilty thereof. The term does not mean
"actual and positive cause" nor does it
import absolute certainty. It is merely based
on opinion and reasonable belief. Probable
cause does not require an inquiry into
whether there is sufficient evidence to
procure a conviction. It is enough that it is
believed that the act or omission complained
of constitutes the offense charged. (Fenequito
vs. Vergara, G.R. No. 172829, July 18, 2012 citing
Reyes vs. Pearlbank Securities, Inc. G.R. No.
171435, July 30, 2008)
When warrant of arrest not necessary
a. If the accused is already under detention
(Rule 112, Sec. 5[c], as amended by AM 05-8-26-
SC); or
b. If the complaint or information was filed
pursuant to a lawful warrantless arrest (Rule
112, Sec. 6, as amended by AM 05-8-26-SC); or
c. If the complaint or information was for an
offense punishable by fine only; or
d. When the case is subject to the Rules on
Summary Procedure, unless he failed to
appear whenever required.
Rules in lawful warrantless arrests where
crime involved requires preliminary
investigation (Rule 112, Sec. 6, as amended by AM
05-8-26-SC)
 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.
 If there is no inquest prosecutor, the
complaint may be filed by the offended party
or a peace officer directly with the proper
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court on the basis of the affidavit of the
offended party or arresting officer or person.
Options of Accused Lawfully Arrested
Without Warrant (Rule 112, Sec. 6, As Amended
by AM 05-8-26-SC)
Before 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
provision of Art 125 of the RPC, as amended,
in the presence of his counsel.
 Art. 125, RPC Delay in the delivery of
detained persons to the proper judicial
authorities
 Notwithstanding the waiver, he may apply
for bail and the investigation must be
terminated within 15 days from its inception.
After complaint or information is filed
without Preliminary Investigation
 The accused may, within 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.
 Section 7 of Rule 112 of the present Rules
gives the accused the right to ask for a
preliminary investigation; but it does not give
him the right to do so after the lapse of the
five-day period. This is in accord with the
intent of the Rules of Criminal Procedure to
make preliminary investigation simple and
speedy. (People vs. Gadi, G.R. No. 116623,
March 23, 1995)
Remedy of the accused who believes that
there is no probable cause to hold him for
trial:
1. To file with the trial court a motion to dismiss
on such ground; or
2. If the warrant of arrest has been issued, the
accused may file a motion to quash the
warrant of arrest
Records of preliminary investigation
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The Record of Preliminary Investigation is not
part of the record of the case.
But it may be produced in court—
1. upon its own initiative; or
2. on motion of any party, If (a) necessary in
the resolution of the case or any incident
therein, or (b) when it is to be introduced as
evidence in the case. (Rule 112, Sec. 7[b], as
amended by AM 05-8-26-SC)
 There is nothing in the DOJ-NPS Manual
requiring the removal of a resolution by an
investigating prosecutor recommending the
dismissal of a criminal complaint after it was
reversed by the provincial, city or chief state
prosecutor. Nonetheless, attaching such a
resolution to an information filed in court is
optional under the aforementioned manual.
The DOJ-NPS Manual states that the
resolution of the investigating prosecutor
should be attached to the information only
"as far as practicable." Thus, such
attachment is not mandatory or required
under the rules. (City Prosecutor Abanado vs.
Judge Bayona, A.M. No. MTJ-12-1804, July 30,
2012)
7.D.7. Cases not Requiring A Preliminary
Investigation nor covered by the rule on
Summary Procedure (Rule 112, Sec. 8, As
Amended By Am 05-8-26-Sc)
a. This refers to cases within the exclusive
original jurisdiction of the inferior courts but
the penalty for the offense is either less than
4 years, 2 months and 1 day, or
b. Not covered by the Rule on Summary
Procedure. Hence, no preliminary
investigation is conducted, but the case has
to be tried in accordance with the regular
procedure in said inferior courts.
If filed with the Prosecutor – the prosecutor
shall act on the complaint based on the affidavits
and other supporting documents within 10 days
from its filing.
7. Remedies Once Complaint or Information
is filed in Court (If there was no Preliminary
Investigation)
1. If from inquest, right to file a motion for
Preliminary Investigation.

2. If from inquest but in reality no Preliminary
Investigation conducted (due to fraud,
mistake, etc.), can still file motion for
preliminary investigation and show you were
deprived of right of preliminary investigation.
3. Warrant of arrest was issued (within 10 days
from filing of complaint), whether or not
there was preliminary investigation, file
Motion for Judicial Determination of Probable
Cause with Motion to Quash Warrant.
4. File Petition for Review with Secretary of
Justice.
5. File a Motion for Reinvestigation.
6. Cannot pursue motion for reinvestigation
where a motion for preliminary investigation
was already made.
7. File a Petition for Certiorari under Rule 65.
Motion for Determination of Probable
Cause with Motion to Quash Warrant
Difference between executive and judicial
determination of probable cause
 There are two kinds of determination of
probable cause: executive and judicial. The
executive determination of probable cause is
one made during preliminary investigation. It
is a function that properly pertains to the
public prosecutor who is given a broad
discretion to determine whether probable
cause exists and to charge those whom he
believes to have committed the crime as
defined by law and thus should be held for
trial. .. The judicial determination of probable
cause, on the other hand, is one made by
the judge to ascertain whether a warrant of
arrest should be issued against the accused.
While it is within the trial court‘s discretion to
make an independent assessment of the
evidence on hand, it is only for the purpose
of determining whether a warrant of arrest
should be issued. The judge does not act as
an appellate court of the prosecutor and has
no capacity to review the prosecutor‘s
determination of probable cause; rather, the
judge makes a determination of probable
cause independent of the prosecutor‘s
finding. (Mendoza v. People, GR 197293, 21 April
2014, quoting People v. Castillo, 607 Phil. 754
[2009])
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When evidence on hand ABSOLUTELY
FAILS to support a finding of probable
cause
 While the determination of probable cause to
charge a person of a crime is the sole
function of the prosecutor, the trial court
may, in the protection of one's fundamental
right to liberty, dismiss the case if, upon a
personal assessment of the evidence, it finds
that the evidence does not establish
probable cause. Although jurisprudence and
procedural rules allow it, a judge must
always proceed with caution in dismissing
cases due to lack of probable cause,
considering the preliminary nature of the
evidence before it. It is only when he or she
finds that the evidence on hand absolutely
fails to support a finding of probable cause
that he or she can dismiss the case. On the
other hand, if a judge finds probable cause,
he or she must not hesitate to proceed with
arraignment and trial in order that justice
may be served. (Mendoza v. People, GR
197293, 21 April 2014)
If the prosecutor files a motion to
withdraw the Information and the trial
court denies the same, can one still expect
the prosecutor to effectively prosecute the
case?
 The role of the fiscal or prosecutor as we all
know is to see that justice is done and not
necessarily to secure the conviction of the
person accused before the Courts. Thus, in
spite of his opinion to the contrary, it is the
duty of the fiscal to proceed with the
presentation of evidence of the prosecution
to the Court to enable the Court to arrive at
its own independent judgment as to whether
the accused should be convicted or
acquitted. The fiscal should not shirk from
the responsibility of appearing for the People
of the Philippines even under such
circumstances much less should he abandon
the prosecution of the case leaving it to the
hands of a private prosecutor for then the
entire proceedings will be null and void. The
least that the fiscal should do is to continue
to appear for the prosecution although he
may turn over the presentation of the
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evidence to the private prosecutor but still
under his direction and control. (Crespo vs.
Mogul, supra)
7.E. ARREST (Rule 113)
Is the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense (Rule 113, Sec. 1)
Persons immune from arrest
1. Members of Congress, in all offenses
punishable by not more than 6 years
imprisonment, while Congress is in session.
2. Sovereigns and other chiefs of state,
ambassadors, ministers plenipotentiary,
ministers resident, and charge d‘affaires are
immune from criminal jurisdiction of the
country of their assignment and are,
therefore, immune from arrest (II Hyde,
International Law); and
3. R.A. 75 prohibits the arrest of duly
accredited ambassadors, public ministers of
a foreign country, their duly registered
domestics, subject to the principle of
reciprocity (Sec. 7, R.A. 75).
 To a person not formally arrested but merely
―invited‖ for questioning (Sanchez vs.
Demetriou, 227 SCRA 627).
If after the officers have determined that a crime
has just been committed by the accused, the use
of the term, ―invited‖ in the affidavit in the
affidavit of arrest is to be construed as an
authoritative command by the officer for the
accused to submit to the custody of the officer.
It is, therefore, an arrest (Pestillos v. Generoso,
G.R. No. 182601, November 10, 2014).
Can the court issue a warrant of arrest
against a John Doe?
 No. Warrants of arrest issued to John Does
are in the nature of a general warrant, one
of a class of writs long proscribed as
unconstitutional and once anthematized as
―totally subversive of the liberty to the
subject. Clearly violative of the constitutional
injunction that warrants of arrest should
particularly describe the person or persons to
be seized, the warrant must, as regards its
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unidentified subjects, be voided.
(Pangandaman vs. Casar, G.R. No. L-71782, April
14, 1988)
7.E.1. Arrest; how made (Rule 113, Sec. 2)
Modes of effecting arrest:
a. By an actual restraint of the person to be
arrested; or
b. By his submission to the custody of the
person making the arrest.
c. Violence or unnecessary force shall not be
used.
d. Restraint should not be greater than that is
necessary for the accused‘s detention.
 Arrest is not necessary when the accused
voluntarily appears after a complaint in a
criminal action is filed against him and gives
bond for his appearance at any time he may
be called (People vs. Joson, 46 Phil 381).
The person to be arrested need NOT
ACTUALLY be restrained as submission to
the custody of the person making the arrest
already constitute arrest. It is enough that
there be an intention on the part of the
parties to arrest the other, and the intent of
the part of the other to submit.
 Remedy for improperly issued warrants:
Quashal of warrant or information (Ilagan vs.
Enrile, 139 SCRA 349). After implementation
of warrant, remedy is suppression of
evidence.
1. Where the investigation comes from a
powerful group composed predominantly of
ranking military officers and the designated
interrogation site is a military camp, the
same can be easily taken, not as strictly
voluntary invitation which purports to be, but
as an authoritative command which one can
only defy at his peril. The requisites of
custodial investigation are applicable even
Where a person who has been lawfully
arrested escapes or is rescued,
2. When the bondsman arrests a prisoner out
on bail for the purpose of bringing him to
court
3. Where the accused attempts to leave the
country without the permission of the court.

Duty of officer executing the warrant (Rule
113, Sec. 3)
1. Arrest the accused; and
2. Deliver him to the nearest police station or
jail without unnecessary delay
Additional duties of arresting officer:
1. To inform person arrested of the reason for
the arrest.
2. Show warrant of arrest, if any.
3. Inform the person of his constitutional right
to remain silent and to counsel and that any
statement he might make could be used
against him (People vs. Lacap, 171 SCRA 147)
Execution of warrant (Rule 113, Sec. 4)
Duty of officer to whom warrant was
assigned for execution.
a. Cause the execution within 10 days from
receipt; and
b. Within 10 days from the expiration of the
period to execute, to make a report to the
judge who issued the warrant.
In case of failure to execute, state reasons.
1. Unlike a search warrant, the 10-day period
stated here is not the lifetime or period of
enforceability of the warrant of arrest.
2. The warrant of arrest does not become
functus officio by the mere lapse of said
period and is enforceable indefinitely until
such time as the arrest of the person or
persons named therein has not been
effected.
 If a warrant was already issued but at the
time of the arrest, the arresting officer does
not have the warrant on hand, may an arrest
be ffected?
Yes. The officer need not have the warrant
in his possession at the time of the arrest
but after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable. (Sec 7, Rule 113)
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7.E.2. Arrest without Warrant, when
Lawful
General Rule: A warrant of arrest is necessary
before arrest is made. The Constitutional
prohibition against unreasonable arrests,
searches and seizures refers to those effected
without warrant (Malacat v Court of Appeals, 283
SCRA 159 173-174).
1. In flagrante delicto Arrest
 When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense (Section 5(a), Rule 113)
 Requisites: (1) the person to be arrested
must execute an overt act indicating that he
has just committed, is actually committing, or
is attempting to commit a crime; and (2) such
overt act is done in the presence or within the
view of the arresting officer. (Miclat Jr. vs.
People, G.R. No. 176077, August 31, 2011)
In an arrest inflagrante delicto, mere ―suspicion‖
and ―reliable information are not justification to
effect warrantless arrest.
An offense is committed in the presence or in the
view of an officer when he sees the offense
although at a distance, or hears the disturbance
or disturbances created thereby and proceeds at
once to the scene of the crime (People v Evaristo,
261 SCRA 431)
In this type of warrantless arrest, the person
making the arrest himself witnesses the crime
and, hence, has personal knowledge of the
commission of the offense (People v Villareal, 693
SCRA 549, 556-557, March 18, 2013).
 We reiterated in People v. Tampis that
"[a]ny objection, defect or irregularitly
attending an arrest must be made before the
accused enters his plea on arraignment.
Having failed to move for the quashing of
the information against them before their
arraignment, appellants are now estopped
from questioning the legality of their arrest.
Any irregularity was cured upon their
voluntary submission to the trial court‘s
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jurisdiction." Be that as it may, the fact of
the matter is that [Vasquez] was caught in
flagrante delicto of selling illegal drugs to an
undercover police officer in a buy-bust
operation. His arrest, thus, falls within the
ambit of Section 5(a), Rule 113 of the
Revised Rules on Criminal Procedure when
an arrest made without warrant is deemed
lawful. Having established the validity of the
warrantless arrest in this case, the Court
holds that the warrantless seizure of the
illegal drugs from the appellant is likewise
valid. (People vs. Vasquez, G.R. No. 200304,
January 15, 2014)
Hence, where the prosecution proved that
appellant was apprehended after she exchanged
the shabu in her possession for the marked
money of the poseur-buyer, in the presence of
the officers, the arrest was in flagrante delicto.
Having been caught in flagrante delicto, the
police officers were not only authorized but were
even duty-bound to arrest her even without a
warrant (People v. Marcelo, GR No. 183700, October
13, 2014).
Also, the act walking along the street and
holding something in one‘s hand, even if they
appeared to be dubious, coupled with his
previous criminal charge for the same offense,
are not by themselves sufficient to incite
suspicion of criminal activity or to create
probable cause enough to justify a warrantless
arrest (People v. Villareal, 693 SCRA 549, 560, 561,
March 18, 2013).
2. Hot pursuit rule
 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 (Section 5(b), supra)
Requisites:
a. An offense has just been committed.
The rule obviously emphasizes the
immediacy of the arrest reckoned form the
commission of the crime.
The person making the arrest has personal
knowledge of the facts indicating that the
person to be arrested committed it.
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It must be emphasized that ―personal
knowledge‖ under hot pursuit does not refer to
actual knowledge of the crime (as opposed to in
flagrante delicto) because the officer did not
witness its commission. The knowledge referred
is knowledge that the crime is committed even if
it was not committed in his presence.
Personal knowledge of facts must be based on
probable cause, which means an actual belief or
reasonable grounds of suspicion. The grounds
are reasonable when the suspicion that the
person to be arrested is probably guilty of
committing the offense is based on actual facts.
3. “Escape” Rule
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. (Section 5(c), supra)
4. “abscond” rule
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. (Section 23, par. 2, Rule 114)
5. Note: Even if the warrantless arrest of an
accused is later proven to be invalid, such
fact is not a sufficient cause to set aside a
valid judgment rendered upon a sufficient
complaint after a trial free from error (People
v. Velasco, 710 SCRA 784, 794, November 27,
2013).
The legality of the arrest affects only the
jurisdiction of the court over the PERSON of the
accused. The illegality of the arrest cannot, in
itself, be the basis for acquittal (People v Yau, GR
No. 2081070, August 20,2014). It will not negate
the validity of the conviction of the accused.
7.E.3. Method of Arrest
7.E.3.A. By Officer by Virtue of Warrant
(Rule 113, Sec. 7)

General Rule:
The arresting officer shall:
a. inform the person to be arrested of the
cause of the arrest and
b. the fact that a warrant has been issued for
his arrest
Exceptions:
1. When the person to be arrested flees or
forcibly resists before the officer has
opportunity to so inform him; OR
2. When the giving of such information will
imperil the arrest.
Note: 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. (Section 7, Rule 113)
7.E.3.A. By Officer Without Warrant (Rule
113, Sec. 8)
General Rule: The officer shall inform the
person to be arrested of his authority and the
cause of the arrest.
Exceptions:
a. The person arrested is engaged in the
commission of an offense;
b. He is pursued immediately after its
commission,
c. He has escaped, flees, or forcibly resists
before the officer has opportunity to so
inform him; or
d. When the giving of such information will
imperil the arrest.
Arrest, as a rule, does NOT proceed from a
traffic violation.
General Rule:
 Under R.A. 4136, or the Land Transportation
and Traffic Code, the general procedure for
dealing with a traffic violation is not the
arrest of the offender, but the confiscation of
the driver‘s license of the latter. If it were
true that [Luz] was already deemed
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"arrested" when he was flagged down for a
traffic violation and while he waiting for his
ticket, then there would have been no need
for him to be arrested for a second time —
after the police officers allegedly discovered
the drugs—as he was already in their
custody. (Luz vs. People, G.R. No. 197788,
February 29, 2012)
The Court, however, cautions that the ruling
does not imply that there can be no arrest for a
traffic violation. When there is an intent on the
part of the police officer to deprive the motorist
of his liberty, or to take the latter into custody,
the former may be deemed to have arrested the
motorist. (Luz v People, 667 SCRA 421, 443)
7.E.3.A. By Private Person (Rule 113, Sec. 9)
Citizen‟s arrest – arrest effected by a private
person.
General Rule: The private person shall inform
the person to be arrested of the:
a. intention to arrest him; and
b. the cause of the arrest.
Exceptions:
1. The person arrested is engaged in the
commission of an offense;
2. He is pursued immediately after its
commission;
3. He has escaped, flees, or forcibly resists
before the person making the arrest has
opportunity to so inform him; or
4. When the giving of such information will
imperil the arrest.
7.E.4. Requisites of a Valid Warrant of
Arrest
Issued upon probable cause which must be
determined personally by a judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce;
Termined personally by the judge;
After evaluation of prosecutor‘s report and the
evidence adduced during the Preliminary
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Investigation; (Soliven vs. Makasiar, GR No. L-
82585, Nov. 14, 1988).
The warrant must particularly describe the
person to be arrested;
Connection with a specific offense or crime.
Note: A warrant of arrest has no expiry date. It
remains valid until arrest is effected or warrant is
lifted. (Manangan vs. CFI, GR No. 82760. Aug. 30,
1990).
7.E.4.A. Determination of Probable Cause
for Issuance of Warrant of Arrest
 Upon filing of an information, the Regional
Trial Court may issue a warrant for the arrest
of the accused after conducting the required
proceedings. (Section 6 (a), Rule 112)
 The judge is not required to personally
examine the complainant and his witnesses.
(People vs. Inting July 25, 1990 G.R. No. 88919;
Ho vs. People G.R. No. 106632. October 9, 1997)
 If the judge conducting the preliminary
investigation is satisfied 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. He shall issue a warrant of arrest.
(Section 6 (b), Rule 112)
 Here, the Judge conducting the preliminary
investigation should follow the above
procedures in order to be satisfied on the
necessity in issuing the warrant.
Time of making arrest (Rule 113, Sec. 6)
An arrest may be made on any day and at any
time of the day or night.
Officer may summon assistance
Every person so summoned shall assist the
officer in effecting the arrest when he can render
assistance without detriment to himself. (Rule
113, Sec. 10)
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Note: The duty of the person summoned does
not arise when rendering assistance would cause
harm to himself.
Right of officer to break into building or
enclosure (Rule 113, Sec. 11)
Requisites:
1. That the person to be arrested is or is
reasonably believed to be in the building or
enclosure;
2. That the officer announced his authority and
purpose; AND
3. That the officer has been refused admittance
thereto.
Right to break out from building or
enclosure (Rule 113, Sec. 12)
Note: The right to break into and out of a
building is not extended to a private person even
if his purpose is to make an arrest.
When the right to break out from a
building or enclosure may be exercised
1. Whenever an officer has entered the building
or enclosure in accordance with Sec.11 of
Rule 113; and
2. When necessary to liberate himself.
Arrest after escape or rescue (Rule 113, Sec.
13)
a. Any person may immediately pursue or
retake without a warrant at any time and in
any place within the Philippines a person
who escapes or is rescued.
b. The escapee must have been lawfully
arrested.
Right of attorney or relative to visit person
arrested (Rule 113, Sec. 14)
Must be made at the request of the person
arrested or of another acting in his behalf.
Scope of Right
1. To visit; and
2. To confer privately with such person.
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Determination of Determination of
Who is entitled to this right? Probable cause by a Probable cause by a
Fiscal Judge
1. Any member of the Philippine bar; or issue a warrant of arrest
without a
2. A relative of the person arrested, subject to
recommendation for bail
reasonable regulations. and the amount thereof
indicated in the warrant
itself
Time of Visit
Any hour of the day or night. 7.F. BAIL (Rule 114)

7.E.4.B. Distinguish Probable Cause of
Fiscal from that of a Judge
 The fiscals determination of probable cause
is made during the preliminary investigation
and is for the purpose of determining
whether a criminal action should be brought
against the respondent under a belief that a
crime has been committed and that the
latter is the one to have committed it.
 The judge‘s determination of probable cause
is made to determine whether a search
warrant or warrant of arrest should be
issued on the finding that a crime has been
committed and that evidence corresponding
thereto is in the place to be searched or that
the accused should be put in custody for
being the likely perpetrator of the crime.
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
specified by the rule. (Rule 114, Sec. 1).
Conditions of the bail; requirements (Rule
114, Sec. 2)
All kinds of bail are subject to the following
conditions:
1. Effectivity – 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.

Determination of Determination of 2. Appearance – The accused shall appear

Probable cause by a Probable cause by a before the proper court whenever required
Fiscal Judge by the court or these Rules.
The Constitutional Judge should have
requirements of having examined under
affidavits and oath/confirmation the
3. Trial in absentia – The failure of the
confirmation are not complainant and the accused to appear at the trial without
mandatory with fiscals. witnesses he produces justification and despite due notice shall be
and particularly deemed a waiver of his right to be present
describing the person to thereat. In such case, the trial may proceed
be seized. (Section 2, in absentia.
Article III, 1987
Philippine Constitution) 4. Duty of bondsman – The bondsman shall
His preliminary The question of whether
surrender the accused to the court for
determination of ―probable cause‖ exists
execution of the final judgment.
probable cause is only or not depends upon the
recommendatory and judgment and discretion
still subject to the review of the judge issuing the 5. Original papers – These shall state the:
of the judge. warrant.
The fiscal‘s probable His determination of a. Full name of the accused
cause may be reviewed probable cause is final b. Address of the accused
and changed by the and conclusive. c. Amount of the undertaking
judge reviewing the d. Conditions required
case. Also, judges may not

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e. Photographs (passport size) taken within
the last 6 months showing the face, left
and right profiles of the accused which
must be attached to the bail.
 A court cannot entertain an accused‘s motion
or petition for bail unless he is in the custody
of law (Dinapol vs. Baldado, 225 SCRA 110).
Effects of failure to appear at trial
Failure of the accused to appear at the trial
without justification despite due notice shall be
deemed a waiver of his right to be present and
the trial may proceed in absentia (Sec. 2[c], Rule
114).
Court cannot require arraignment before
the grant of bail
The grant of bail should not be conditioned upon
the prior arraignment of the accused. In cases
where bail is authorized, bail should be granted
before arraignment; otherwise, the accused will
be precluded from filing a motion to quash which
is to be done before arraignment. If the
information is quashed and the case is dismissed,
there would be no need for the arraignment of
the accused.
To condition the grant of bail on his arraignment
would be to place him in a position where he has
to choose between (1) filing a motion to quash
and thus delay his release until his motion can
be resolved because prior to its resolution, he
cannot be arraigned, and (2) foregoing the filing
of a motion to quash so that he can be arraigned
at once and thereafter be released on bail.
These scenarios undermine the accused‘s
constitution right not to be put on trial except
upon a valid complaint or information sufficient
to charge him with a crime and his right to bail
(Lavides v Court of Appeals, 324 SCRA 321, 330).
No release or transfer except on court
order (Rule 114, Sec. 3)
General Rule: No person under detention by
legal process shall be released or transferred.
Exception:
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1. When ordered by the court; or
2. When he is admitted to bail.
Rules on availability of bail
Regardless of the stage of the criminal
prosecution, no bail shall be allowed if the
accused is charged with a capital offense or an
offense punishable by reclusion perpetua and the
evidence of guilt is strong (Rule 114, Sec. 7).
 Whether bail is a matter of right or
discretion, and even if no charge has yet
been filed in court against a respondent-
suspect-detainee, reasonable notice of
hearing is required to be given to the
prosecutor, or at least his recommendation
must be sought. (Prov. Prosecutor Floresca vs.
Judge Ubiadas, A.M. No. RTJ-03-1774, May 27,
2004)
Bail is a Matter of Right:
a. Before or after conviction by the MeTC, MTC,
MTC in Cities or Municipal Circuit Trial Court;
AND
b. Before conviction by the Regional Trial
Court. (Rule 114, Sec. 4)
Exception: Where the offense is punishable by
death, reclusion perpetua or life imprisonment
AND the evidence of guilt is strong.
 The right to bail shall not be impaired even
when the privilege of the writ of habeas
corpus is suspended (Art. III, Sec. 13,
Constitution).
 The right to bail, embodied in the
Constitution, is not available to military
personnel or officer charged with a violation
of the Articles of War (Aswat vs. Galido, G.R.
No. 88381-82, November 21, 1991).
Bail is Discretionary (Rule 114, Sec. 5)
a. Upon conviction by the RTC of an offense
not punishable by death, reclusion perpetua
or life imprisonment;
b. After conviction by the RTC wherein a
penalty of imprisonment exceeding 6 but not
more than 20 years is imposed, and not one
of the circumstances below is present and
proved:

 If the decision of the RTC convicting the
accused change the nature of the offense
from non-bailable to bailable.
Admission to bail as a matter of discretion
presupposes the exercise thereof in
accordance with law and guided by the
applicable legal principles. The prosecution
must first be accorded an opportunity to
present evidence because by the very nature
of deciding applications for bail, it is on the
basis of such evidence that judicial discretion
is weighed against in determining whether
the guilt of the accused is strong. In other
words, discretion must be exercised
regularly, legally and within the confines of
procedural due process, that is, after the
evaluation of the evidence submitted by the
prosecution. Any order issued in the absence
thereof is not a product of sound judicial
discretion but of whim and caprice and
outright arbitrariness. (Prov. Prosecutor
Floresca vs. Judge Ubiadas, supra, citing A.M. No.
RTJ-01-1633, June 19, 2001)
When application for bail after conviction
by the RTC shall be denied:
1. If the penalty imposed is death, reclusion
perpetua or life imprisonment, bail should be
denied since the conviction indicates strong
evidence of guilt based on proof beyond
reasonable doubt (People v Nitcha, 240 SCRA
283, 295).
2. Even if the penalty imposed by the trial court
is not any of the above but merely
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail
already allowed shall be cancelled, if the
prosecution shows the following or other
similar circumstances:
a. That the accused is a recidivist, quasi-
recidivist or habitual delinquent or
committed a crime aggravated by the
circumstances of reiteracion.
b. That the accused previously escaped from
legal confinement, evaded his sentence or
violated the conditions of bail without valid
justification.
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c. That the accused has committed the offense
while on probation, parole or under
conditional pardon.
d. Circumstance of the accused or his case
indicates the probability of flight if released
on bail.
e. Undue risk of commission of another crime
by the accused during pendency of appeal.
Court that may act upon the application for
bail
The trial court– despite the filing of a notice of
appeal, unless it has transmitted the original
record to the appellate court. (applies to ―a‖)
The appellate court – if from the decision of
the trial court, conviction of the accused changed
the nature of the offense from non-bailable to
bailable. (applies to ―c‖)
Note: Applications for bail in cases where the
grant of bail is a matter of discretion, or where
the accused seeks to be released on
recognizance, can only be filed in the court
where the case is pending on trial or on appeal
(A.M. No. 05-8-26-SC).
 After conviction by the RTC imposing a
penalty of imprisonment exceeding 6 years
but not more than 20 years and any of the
circumstance enumerated above and other
similar circumstance is present and proved,
no bail shall be granted (Rule 114, Sec. 5).
 After judgment has become final, no bail
shall be allowed unless accused applied for
probation before commencing to serve
sentence or penalty and the offense is within
the purview of probation law (Rule 114, Sec.
25).
Capital offense - is an offense which, under
the law existing at the time of its commission
and of the application for admission to bail, may
be punished with death (Rule 114, Sec. 7).
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Note: Death Penalty cannot be imposed,
pursuant to RA 9346, which became a law on
June 24, 2006.
 This presumption of innocence is rooted in
Non-bailable offense (Rule 114, Sec. 7)
When evidence of guilt is strong, no person
charge with a capital offense or an offense
punishable by reclusion perpetua or life
imprisonment shall be admitted to bail.
Burden of proof in bail application (Rule 114,
 Bail is not intended to cover the civil liability
Sec. 8)
The prosecution has the burden of showing that
evidence of guilt is strong 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.
Reason: Bail is a matter of right.
The hearing should be summary or otherwise, in
the discretion of the court, but the right of the
prosecution to control the quantum of evidence
and the order of presentation of witnesses must
be equated with the purpose of the hearing, i.e.,
to determine the bailability of the accused.
Summary hearing - is meant such brief and
speedy method of receiving and considering the
evidence of guilt as practicable and consistent
with the purpose of the hearing which is merely
to determine the weight of the evidence for
purposes of bail.
As evidence presented under this section are
automatically reproduced at the trial, the
proceedings should be conducted as a regular
trial. But upon motion of either party, the court
may recall any witness for additional examination
when the latter is dead, outside of the
Philippines or otherwise unavailable to testify.
7.F.1. Nature of Right to Bail
 The right to bail is a constitutional right. The
right to bail springs from the presumption of
innocence accorded to every accused upon
whom should not be inflicted incarceration at
the outset since, after the trial, he would be
entitled to acquittal, unless guilt be
established beyond reasonable doubt
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(Paderanga v. Court of Appeals, 247 SCRA 741,
753).
the guarantee of due process, and is
safeguarded by the constitutional right to be
released on bail, and further binds the court
to wait until after trial to impose any
punishment on the accused (Enrile v.
Sandiganbayan [Third Division], G.R. No. 213847,
August 18, 2015).
of the accused in the same criminal case.
However, it may be applied to the payment of
fines and costs while the excess, if any, shall
be returned to the accused or to whoever
made the deposit (Sec. 14, Rule 114).
7.F.2. When a Matter of Right; Exceptions
All person in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or
released on recognizance:
a. Before and after conviction by the MTC; and
b. Before conviction by the RTC, except when
the imposable penalty is reclusion perpetua,
life imprisonment or death, and the evidence
of guilt is strong.
7.F.3. When a Matter of Discretion
a. Before conviction, in case of offenses
punishable by reclusion perpetua, life
imprisonment or death when evidence of
guilt is NOT strong.
b. After conviction by the RTC of a non-capital
offense.
7.F.4. Hearing of Application for Bail in
Capital Offenses
A summary hearing shall be held in order for the
prosecution to show that the evidence of guilt of
the applicant for bail is indeed strong. A hearing
must he held in which both parties must be
given the opportunity to be heard. To deny the
application for bail simply on the grounds that
the crime committed is a capital offense would
amount to a deprivation of a fundamental right
of the accused.

7.F.5. Guidelines For The Amount Of Bail
(Rule 114, Sec. 9)
a. Excessive bail shall not be required.
b. The remedy of the accused where there is
excessive bail is a Motion for Reduction of
Bail, which is a litigated motion.
Factors for Fixing Reasonable Amount of
Bail (not exclusive)
1. Financial capacity of the accused to give bail.
2. Nature and circumstances of the offense.
3. Penalty for the offense charged.
4. Character and reputation of the accused.
5. Age and health of the accused.
6. Weight of the evidence against the accused.
7. Probability of the accused appearing at the
trial.
8. Forfeiture of other bail.
9. The fact that the accused was a fugitive
from justice when arrested.
10. Pendency of other cases where the accused
is on bail.
The order fixing the amount of bail is not
appealable (Sec. 4, A.M. No. 12-11-2 SC, Guidelines
for Decongesting Jails by Enforcing the Rights of
Accused Persons to Bail and to Speedy Trial, Effective
May 1, 2014).
Forms of bail:
1. Corporate surety;
2. Property bond;
3. Cash deposit; or
4. Recognizance.
Corporate surety (Rule 114, Sec. 10)
This bail furnished by a corporation. Under the
Rules of Court, any domestic or foreign
corporation, which is licensed as a surety and
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 the
board of directors (Sec. 10, Rule 114).
Requisites:
1. Joint affidavit of the accused and duly
authorize d officer of the corporation;
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2. Accreditation from the court where the case
is pending;
3. Accreditation from the Supreme Court of the
surety company; and
4. Submission of picture of the accused (not
earlier than 6 months prior)—at least 3 (Rule
114, Sec. 3, last par.).
Effectivity of a Corporate Surety Bond –
Until termination of the case; exception only is
when the surety corporation cancels it for non-
payment of premium.
Property bond - is an undertaking constituted
as lien on the real property given as security for
the amount of the bail (Rule 114, Sec. 11).
 When there is no showing that the
bondsman is the true owner of the land
offered as bond, the court may properly
refuse to accept the same (Lira, Jr. vs. Hon.
Reyes, 4 C.A. Rep. 614).
 What should be presented in court? (i)
Transfer Certificate of Title, and (ii) Tax
Declaration.
 Property bond need not be the property of
the accused.
Qualifications of Sureties in Property Bond
1. Each must be a resident owner of real estate
within the Philippines.
2. Where there is only one surety, his real
estate must be worth at least the amount of
undertaking.
3. 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 the 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.
Justification of Sureties
Every surety shall justify by affidavit taken
before the judge that he possesses the
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qualification of sureties in property bonds and
describe his property. (Rule 114, Sec. 13)
 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.
Deposit of cash as bail (Rule 114, Sec. 14)
Who may deposit in cash
a. The accused; or
b. Any person acting in his behalf.
To whom the cash is deposited
a. With the nearest Collector of Internal
Revenue;
b. Provincial, City or Municipal Treasurer; or
c. The clerk of court where the case is pending.
A judge is not one of those authorized to receive
a deposit of cash bail; nor should such cash be
kept in the judge‘s office, much less in his own
residence (Naui v Mauricio, 414 SCRA 11, 17).
Amount of Deposit (Bail)
a. The amount of bail fixed by the court; or
b. The amount of bail recommended by the
prosecutor or who investigated or filed the
case.
 The bail bond posted for the accused was in
the form of cash deposit which, as mandated
by Rule 114, Sec. 14 shall be applied to the
payment of fine and costs, and the excess, if
any, shall be returned to the accused or to
any person who made the deposit.
 The Rule thus treats a cash bail differently
from other bail bonds. A cash bond may be
posted either by the accused or by any
person in his behalf. When a cash bail is
allowed, the two parties to the transaction
are the State and the defendant. Unlike
other bail bonds, the money may then be
used in the payment of that in which the
State is concerned – the fine and costs. The
right of the government is in the nature of a
lien on the money deposited. (Esteban vs.
Alhambra, G.R. No. 135012, Sept. 7, 2004).
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Recognizance (Rule 114, Sec. 15)
Recognizance is a mode of securing the release
of any person in custody or detention for the
commission of an offense who is unable to post
bail due to abject poverty. (Section 3, R.A. No.
10389 Entitled ―An Act Institutionalizing Recognizance
as a Mode of Granting the Release of an Indigent
Person in Custody as an Accused in a Criminal Case
and for other purposes)
The court where the case of such person has
been filed shall allow the release of the accused
on recognizance as provided herein, to the
custody of a qualified member of the barangay,
city or municipality where the accused resides.
(Ibid.)
Whenever allowed by the law or the Rules, the
court may release a person in custody on his
own recognizance or that of a responsible
person.
Instances when accused may be released
on recognizance
 Where a person has been in custody for a
period equal to or more than the minimum
of the imposable principal penalty, without
application of the Indeterminate Sentence
Law or any modifying circumstance, the
court, in its discretion, may allow his release
on a reduced bail or on his own recognizance
(Rule 114, Sec. 16).
 Where, after judgment of conviction but
before its finality, the accused applies for
probation and no bail was filed or he is
incapable of filing one, the court may allow
his release on recognizance to the custody of
a responsible member of the community
(Rule 114, Sec. 24) (Sec. 7, P.D. 968, Probation
System Act, as amended).
 In case of a youthful offender held for
physical and mental examination, trial or
appeal, if unable to furnish bail and under
the circumstances contemplated in The Child
and Youth Welfare Code (Art. 191, P.D. 603,
The Child and Youth Welfare Code as amended).
 When the offense charged is a violation of
an ordinance, a light felony or a criminal
offense the imposable penalty for which is
not higher than 6 months imprisonment and/
or P2, 000 fine under the circumstances
provided in R.A. 6036.
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 When the person in custody or detention is continuation of the trial or the proceedings
unable to post bail due to abject poverty. on appeal;
(Section 3, R.A. No. 10389) e. A person accused of an offense with a
maximum penalty of destrierro shall be
Bail Bond Recognizance released after 30 days of preventive
Is an obligation under imprisonment.
Is an obligation of record,
seal given by the f. In cases filed with the MTC for an offense
entered into before some
accused with one or
court or magistrate duly punishable by imprisonment of less than 4
more sureties, and
made payable to the
authorized to take it, with years, 2 months and 1 day, and the judge is
the condition to do some satisfied that there is no necessity for placing
proper officer with the
particular act, the most the accused under custody, he may issue the
condition to be void
usual condition in criminal summons instead of warrant of arrest. Since
upon performance by
cases being the
the accused of such acts no arrest is made, bail is not required.
appearance of the
as he may legally be
accused for trial.
required to perform 7.F.7. Increase or Reduction of Bail (Rule
Requires the signature Does not require the 114, Sec. 20)
of the accused for its signature of the accused
validity. for its validity.  When the amount of bail is increased, the
accused may be committed to custody if he
Release without Bail (Rule 114, Sec. 16) does not give bail in the increased amount
within a reasonable period.
 When the accused has been in custody for a  An accused released without bail upon filing
period equal to or more than the possible of the complaint or information may, at any
maximum imprisonment prescribed for the subsequent stage of the proceedings and
offense charged, without prejudice to the whenever a strong showing of guilt appears
continuation of the trial or the proceedings to the court, be required to give bail in the
on appeal. amount fixed or in lieu thereof committed to
 When the maximum penalty to which the custody.
accused may be sentenced is destierro, but  The guidelines provided for in Section 9,
only after 30 days of preventive Rule 114, in fixing the amount of bail are
imprisonment. also applicable in reducing or increasing the
bail previously fixed.
7.F.6. Bail When not Required
Generally, bail is not required when the law or  Where the offense is bailable as a matter of
the Rules of Court so provide (Sec. 16, Rule 114). right, the mere probability that the accused
will escape, or even if he had previously
a. Subject to certain exceptions, when the escaped while under detention, does not
offense charged is a violation of an deprive him of his right to bail. The remedy
ordinance, light felony or a criminal offense, is to increase the amount of bail, provided
the imposable penalty wherefore does not such amount would not be excessive. (SY
exceed 6 months of imprisonment and/or Guan vs. Ampary, 79 PHIL 670)
fine of P 2,000 under R.A. 6036;
b. Where the accused is released on Bail, where filed (Rule 114, Sec. 17)
recognizance;
c. In case of youthful offender held for physical Bail in the amount fixed may be filed with the:
or mental examination, trial or appeal, if
unable to furnish bail and under the a. Court where the case is pending; or
circumstances under PD 603, as amended. b. In the absence or unavailability of the judge
d. A person who has been in custody for a thereof, with any, regional trial judge,
period equal to or more than the possible metropolitan trial judge or municipal circuit
maximum imprisonment prescribed for the trial judge in the province, city or
offense charged, without prejudice to the municipality.

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Note: This is a special jurisdiction of the
MTC/MCTC.
 Where the grant of bail is a matter of
discretion or the accused seeks to be
released on recognizance
 The application may only be fixed in the
court where the case is pending, whether on
preliminary investigation, trial or appeal.
 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.
 Failure to give bail in the increased amount
shall be a ground for the accused to be
committed to custody.
 An accused 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.
7.F.8. Forfeiture of Bond and Cancellation
of Bond (Rule 114, Sec. 21)
If the accused fails to appear in person as
required by the law or the Rules:
a. His bail shall be declared forfeited; and
b. His bondsmen are given 30 days within
which to produce his principal and to show
cause why no judgment should be rendered
against then on the amount of their bail.
The bondsman may be held liable for the
amount of the bail if he fails to do the
following in the said period:
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.
Note: Failing in these requisites, a judgment
shall be rendered against the bondsmen, jointly
and severally, for the amount of bail.
The 30-day period granted to the bondsmen to
comply with the two requisites for the lifting of
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the order of forfeiture cannot be shortened by
the court but may be extended for good cause
shown.
If the bondsmen move for the mitigation of their
liability, the court is required not to reduce or
otherwise mitigate the liability of the bondsmen,
unless the accused has been surrendered or is
acquitted.
Judgment against the bondsmen cannot be
entered unless such judgment is preceded by an
order of forfeiture and an opportunity given to
the bondsmen to produce the accused or to
adduce satisfactory reason for their inability to
do so (Mendoza v. Alarma, 554 SCRA 42, 47-48).
Aside from forfeiture, when the accused fails to
appear in court despite notice, the court may
issue a bench warrant for his arrest.
A bench warrant is defined as a writ issued
directly by a judge to a law enforcement officer,
for the arrest of a person who has been held in
contempt, has disobeyed a subpoena, or has to
appear at a hearing or trial. Under Sec. 9, Rule
71 of the Rules of Court, when a person is
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 be forfeited and confiscated, or both
(Magleo v. De Juan-Quinagoran, A.M. No. RTJ-12-
2336, November 12, 2014).
Cancellation of bail (Rule 114, Sec. 22)
Cancellation by application
Upon application of the bondsmen, with due
notice to the prosecutor, the bail may be
cancelled:
1. Upon surrender of the accused; or
2. Upon proof of the accused‘s death.
Automatic Cancellation
The bail shall be deemed automatically cancelled
upon:
1. Acquittal of the accused;
2. Dismissal of the case; or
3. Execution of the judgment of conviction.
Sec. 5 of Rule 114 allows the cancellation of bail
where the penalty imposed by the trial court is
imprisonment exceeding six (6) years if any of

the grounds in the said section is present as
when the circumstances indicate the probability
of flight.
The court is not authorized to deny or cancel the
bail ex parte. The rule requires ―notice to the
accused‖ (Sec. 5, Rule 114).
In all instances, the cancellation shall be without
prejudice to any liability on the bail.
Arrest of accused out on bail (Rule 114, Sec.
23)
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.
Bail after final judgment (Rule 114, Sec. 24)
General Rule: No bail shall be allowed after
judgment of conviction has become final.
Exception: If before a judgment of conviction
has become final, 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
responsible member of the community.
7.F.9. Application Not a Bar to Objections
in Illegal Arrest, Lack of or Irregular
Preliminary Investigation (Rule 114, Sec. 26)
An application for or admission to bail shall not
bar the accused from:
1. Challenging the validity of his arrest;
2. Challenging the legality of the warrant issued
therefore; and
3. Assailing the regularity or questioning the
absence of a preliminary investigation of the
charge against him.
He must raise these matters 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.
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Application for Bail NOT a Waiver of Right
to Preliminary Investigation
 Moreover, considering the conduct of the
petitioner after posting her personal bail
bond, it cannot be argued that she waived
her right to question the finding of probable
cause and to assail the warrant of arrest
issued against her by the respondent judge.
There must be clear and convincing proof
that the petitioner had an actual intention to
relinquish her right to question the existence
of probable cause.36 When the only proof of
intention rests on what a party does, his act
should be so manifestly consistent with, and
indicative of, an intent to voluntarily and
unequivocally relinquish the particular right
that no other explanation of his conduct is
possible. (Okabe vs. Hon. Gutierrez, G.R. No.
150185, May 27, 2004)
7.F.10. Hold Departure Order & Bureau of
Immigration Watchlist
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. (23a)
Bail in extradition cases (Govt. of Hong Kong
Special Administrative Region vs. Olalia, Jr., G.R. No.
153675, April 19, 2007)
 [A]n extradition proceeding, while ostensibly
administrative, bears all earmarks of a
criminal process.
 A potential extraditee may be subjected to
arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding
state following the proceedings.
 "Temporary detention" may be a necessary
step in the process of extradition, but the
length of time of the detention should be
reasonable.
 While our extradition law does not provide
for the grant of bail to an extraditee, there is
no provision prohibiting him/her from filing a
motion for bail, a right to due process under
the constitution.
 An extradition proceeding being sui generis,
the standard of proof required in
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granting/denying bail is showing of clear and
convincing evidence: that which is lower
than proof beyond reasonable doubt but
higher than proof of preponderance of
evidence.
 A Hold Departure Order may be issued either
by the Regional Trial Courts or by the DOJ.
 Hold Departure orders issued by the RTC
shall pertain to criminal cases falling within
their exclusive jurisdiction, pursuant to
Supreme Court Circular 39-97.
 The DOJ in the following cases may issue a
Hold Departure Order:
 Against an accused irrespective of
nationality, in criminal case falling within
the jurisdiction of courts below the
Regional Trial Courts.
 Against the alien whose presence is
required either as a defendant,
respondent or witness in a civil or labor
case pending litigation, or any case
before an administrative agency.
 Against any person motuproprio, on
upon the request of the Head of a
Department of the Government; the
head of a constitutional body or
commission; the Chief Justice of the
Supreme Court for the Judiciary; the
Senate President or the House Speaker
for the Legislature, when the adverse
party is the Government or any of its
agencies or instrumentalities, or in the
interest of national security, public safety
or public health.
Note: DOJ Circular No. 41 empowering the
Secretary to issue watch list order and HDO‘s
was declared unconstitutional for being violative
of constitutional right to travel (Genuino vs De
Lima, G.R. No. 197930, April 18, 2018)
Sec. 5 of Rule 114 allows the cancellation of bail
where the penalty imposed by the trial court is
imprisonment exceeding six (6) years if any of
the grounds in the said section is present as
when the circumstances indicate the probability
of flight.
7.G. ARRAIGNMENT AND PLEA (Rule 116)
ARRAIGNMENT is the formal mode of
implementing the constitutional right of the
accused to be informed of the nature of the
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accusation against him. (People vs. Pangilinan, 518
SCRA 368)
Its purpose is to apprise the accused why he is
being prosecuted by the State. As such, it is an
indispensable requirement of due process and
thus, cannot be regarded lightly or brushed aside
peremptorily (Taglay v. Daray, 678 SCRA 640, 649,
August 22, 2012). Trial in absentia cannot proceed
since the accused has not been arraigned.
The absence of arraignment results in the nullity
of the proceedings before the trial court (Taglay
v. Daray, 678 SCRA 640, 649, August 22, 2012).
Parts of arraignment
1. Providing the accused with a copy of the
information/complaint
2. Reading the information/complaint to the
accused in a language/dialect known to him
7.G.1. Arraignment and Plea Where and
How Made (Rule 116, Sec. 1)
1. Before the court where the complaint or
information was filed or assigned for trial;
2. In open court;
a. By the judge or clerk of court;
b. By furnishing the accused with a copy of
the complaint or information;
c. By reading the complaint or information
in the language or dialect known to the
accused;
d. By asking the accused of his plea.
 The prosecution may call at the trial
witnesses other than those named in the
complaint or information.
 There can be no arraignment in absentia.
The accused must be present at the
arraignment and must personally enter his
plea.
When there are more than 1
Complaints/Informations
 With exacting certitude, Section 1(a) of Rule
116 requires that the arraignment should be
made in open court by the judge himself or

by the clerk of court furnishing the accused a
copy of the complaint or information with the
list of witnesses stated therein, then reading
the same in the language or dialect that is
known to him, and asking him what his plea
is to the charge. The requirement that the
reading be made in a language or dialect
that the accused understands and knows is a
mandatory requirement, just as the whole of
said Section 1 should be strictly followed by
trial courts. This the law affords the accused
by way of implementation of the all-
important constitutional mandate regarding
the right of an accused to be informed of the
precise nature of the accusation leveled at
him and is, therefore, really an avenue for
him to be able to hoist the necessary
defense in rebuttal thereof. It is an integral
aspect of the due process clause under the
Constitution. At threshold, what strikes this
Court as peculiar is that the arraignment
appears to have consisted merely of the bare
reading of the five complaints, synthetically
and cryptically reported in the transcript,
thus: "(Reading the information/complaint to
the accused in Ilonggo/local dialect)." Since
what was supposed to have been read was
stated in the singular, but there were five
criminal complaints against appellant, this
Court is then left to speculate on whether all
five criminal complaints were actually read,
translated or explained to appellant on a
level within his comprehension, considering
his limited education. (People vs. Estomaca,
G.R. Nos. 117485-86, April 22, 1996)
 Where the accused went to trial without
arraignment, but his counsel had the
opportunity to cross-examine the witness of
the prosecution, and after the prosecution
rested he was arraigned, the procedural
defect was cured (People vs. Pangilinan, 518
SCRA 368).
Period to plea
If under Preventive Detention (Rule 116, Sec.
1[e])
The case shall be raffled and its records
transmitted to the judge whom the case was
raffled within 3 days from the filing of the
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information or complaint. The accused shall be
arraigned within 10 days from the date of the
raffle. The pre-trial conference of his case shall
be held within 10 days after arraignment.
If not under Preventive Detention (Rule 116,
Sec. 1[g])
 Within 30 days from the date the court
acquires jurisdiction over the person of the
accused (filing of the information, or from
the date the accused appealed before the
justice/judge/court in which the charge is
pending, whichever date last occurs).
 30 days is not absolute as the Rules further
states that 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.
 A failure to observe the rules on arraignment
is reversible error and a judgment of
conviction cannot stand upon an invalid
arraignment.
 Where the accused was arraigned on the
original, and not on the substantially
amended information, although such defect
was pointed out to the trial court by the
defense counsel, the same constitutes
reversible error.
Belated Arraignment
 Appellant‘s belated arraignment did not
prejudice him. This procedural defect was
cured when his counsel participated in the
trial without raising any objection that his
client had yet to be arraigned. In fact, his
counsel even cross-examined the
prosecution witnesses. His counsel‘s active
participation in the hearings is a clear
indication that he was fully aware of the
charges against him; otherwise, his counsel
would have objected and informed the court
of this blunder. Moreover, no protest was
made when appellant was subsequently
arraigned. The parties did not question the
procedure undertaken by the trial court. It is
only now, after being convicted and
sentenced to two death sentences, that
appellant cries that his constitutional right
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has been violated. It is already too late to
raise this procedural defect. This Court will
not allow it. (People vs. Pangilinan, G.R. No.
171020, March 14, 2007)
Plea - is the matter which the accused on his
arraignment alleges in answer to the charge
against him.
7.G.2. When a Plea of “Not Guilty” should
be Entered
1. When the accused so pleads.
2. When he refuses to plead.
3. Where in admitting the act charged, he sets
up matters of defense or with a lawful
justification.
4. When he enters a conditional plea of guilt.
5. Where, after a plea of guilt, he introduces
evidence of self-defense or other exculpatory
circumstances.
6. When the plea is indefinite or ambiguous.
Conditional plea of guilty (Negative Plea)
One entered subject to the proviso that a certain
penalty be imposed upon him. It is equivalent to
a plea of not guilty which requires a full-blown
trial before judgment may be rendered.
It is likewise a conditional plea where he pleads
guilty but submits exculpatory evidence and
interposes lawful defenses.
Plea of guilty
An unconditional plea of guilty by the accused
admits the crime and all the attendant
circumstances alleged in the information
including the allegations of conspiracy, and
warrants a judgment of conviction without need
of further evidence.
7.G.3. When Accused Is Allowed To Plead
Guilty To A Lesser Offense Which Is
Necessarily Included In The Offense
Charged (Rule 116, Sec. 2)
a. At arraignment, the accused, with the
consent of the offended party and
prosecutor.
b. After arraignment but before trial, if the
accused withdraws his plea of not guilty.
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c. In case of failure of the offended party to
appear at arraignment despite due notice,
with the conformity of the trial prosecutor
alone. (Rule 116, Sec. 1[f])
7.G.4. Accused Pleads Guilty to a Capital
Offense, What the Court should do (Rule 116,
Sec. 3)
a. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea.
b. Require the prosecution to prove his guilt
and the precise degree of culpability.
c. The accused may present evidence in his
behalf.
d. As there is no more death penalty, the
requirements do not apply.
Duty of Court When Plea of Guilty to Non-
Capital Offense is Made
The court may receive evidence from the parties
to determine penalty to be imposed. (Rule 116,
Sec. 4)
 Crimes punishable by reclusion perpetua and
life imprisonment do not need searching
questions.
 When the facts charged in the information
do not state an offense, no conviction
thereon can be had notwithstanding the
defendant‘s plea of guilty thereon.
7.G.5. Searching Inquiry
 A "searching inquiry," under the Rules,
means more than informing cursorily the
accused that he faces a jail term (because
the accused is aware of that) but so also, the
exact length of imprisonment under the law
and the certainty that he will serve time at
the national penitentiary or a penal colony.
Not infrequently indeed, an accused pleads
guilty in the hope, as we said, of a lenient
treatment, or upon a bad advice or promises
of the authorities or parties of a lighter
penalty should he admit guilt or express
"remorse." It is the duty of the judge to see
to it that he does not labor under these
mistaken impressions. (People vs. Estomaca,
supra, citing People vs. Dayot, G.R. No. 88281,
July 20, 1990)

 The trial judge must satisfy himself that the
accused, in pleading guilty, (1) is doing so
voluntary, and (2) he, in so doing, is truly
guilty, and (3) that there exists a rational
basis for a finding of guilt based on his
testimony. It means more than merely
informing the accused that he faces a jail
term but also informing him the exact length
of imprisonment under the law and the
certainty that he will serve time at the
national penitentiary or a penal colony.
 The judge must see to it that the accused
did not fall under the false impression that a
plea of guilty carries with it a lenient
treatment or a lighter treatment because his
admission shows remorse on his part.
What is the meaning of the duty of the
judge to conduct a searching inquiry?
1. In all cases, the judge must convince himself
that the accused is entering the plea of
guilty voluntarily and intelligently
2. That he is truly guilty
3. That there exists a rational basis for a
finding of guilt based on his testimony.
4. In addition, the judge must inform the
accused of the exact length of imprisonment
and the certainty that he will serve it at the
national penitentiary or a penal colony. The
judge must dispel any false notion that the
accused may get off lightly because of his
plea of guilt.
7.G.6. Improvident Plea of Guilty (Rule 116,
Sec. 5)
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.
 The withdrawal of a plea of guilty is not a
matter of a strict right to the accused but of
sound discretion to the trial court (People vs.
Lambrino, 103 Phil. 504).
 Convictions based on an improvident plea of
guilt are set aside only if such plea is the
sole basis of the judgment. If the trial court
relied on sufficient and credible evidence to
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convict the accused, the conviction must be
sustained, because then it is predicated not
merely on the guilty plea of the accused but
on evidence proving his commission of the
offense charged. (People vs. Janjalani, G.R. No.
188314, January 10, 2011 citing People vs.
Nadera, G.R. Nos. 131384-87, February 2, 2000)
Instances of improvident plea
1. Plea of guilty was compelled by violence or
intimidation.
2. The accused did not fully understand the
meaning and consequences of his plea.
3. Insufficient information to sustain conviction
of the offense charged.
4. Information does not charge an offense, any
conviction there under being void.
5. Court has no jurisdiction
Duty of court as to the right to counsel of
the accused (Rule 116, Sec. 6)
1. Inform the accused, before arraignment, of
his right to counsel;
2. Ask the accused if he desires to have one;
3. If he desires and is unable to employ an
attorney, the court must assign counsel de
officio for the accused, unless:
a. He is allowed to defend himself in
person; or
b. He has employed a counsel of his choice.
If he has not yet employed one, the
court must grant him reasonable time
therefore.
The Counsel de Officio to be appointed
must be (Rule 116, Sec. 7)
1. A member of the bar in good standing; and
2. Able to competently defend the accused by
reason of his experience and ability.
The counsel de officio appointed must be given a
reasonable time to consult with the accused as
to his plea before proceeding with the
arraignment (Rule 116, Sec. 8).
Where no member of the bar is available, the
court may appoint any person to defend the
accused who is:
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1. A resident of the province; and
2. Of good repute for probity and ability to
defend the accused.
Note: A private prosecutor, who assisted the
prosecuting attorney in prosecution against one
defendant, is disqualified from acting as counsel
de officio for the other defendants in the same
case. (U.S. v. Laranja, G.R. No. 6789, February
16, 1912)
However, although the attorney appointed as
counsel de officio had previously appeared as
private prosecutor in the case, if it appears that
the accused were properly defended, the
appointment, if it be erroneous, is not reversible
error (People v. Manigbas, G.R. No. L-10352-53,
September 30, 1960).
Bill of particulars (Rule 116, Sec. 9)
The Rules rovide for this remedy to protect the
accused from vague and indefinite allegations in
the complaint or information.
Purpose:
In order for the accused to be fully apprised of
the true charges against them, and thus avoid
any and all other possible surpise, which might
be detrimental to their rights and interests.
(People v. Abad Santos, G.R. No. L-447, June 17,
1946)
Requirements:
1. The motion must be made before
arraignment
2. It must specify the alleged defects
3. It must state the details desired
Production or inspection of material
evidence in possession of prosecution (Rule
116, Sec. 10)
Requirements:
1. On motion of the accused showing good
cause
2. With notice to the parties
3. Material evidence refer to written
statements, documents and things not
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otherwise privileged in the possession or
under the control of the prosecution, police
or other law investigating agencies
This is one of the modes of discovery in criminal
cases for the accused only.
7.G.7. Grounds for Suspension of
Arraignment (Rule 116, Sec. 11)
1. 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.
2. The court shall order his mental examination
and, if necessary, his confinement for such
purpose.
3. There exists a prejudicial question.
4. 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 60 days counted
from the filing of the petition with the
reviewing office.
Note: The proper party must move for the
suspension based on the above grounds.
7.H. MOTION TO QUASH (Rule 117)
Is a special pleading filed by the defendant
before entering his plea which hypothetically
admits the truth of the facts alleged in the
complaint or information at the same time that it
sets up a matter which, if duly proved, would
preclude further proceedings.
The court in resolving the motion cannot
consider facts contrary to those alleged in the
information or which do not appear on the face
of the information, except those admitted by the
prosecution.
Motion To Dismiss
Motion To Quash
Under Rule 16
Governed by Rule 117 Governed by Rule 16 of
of the Rules of the Rules of Civil
Procedure
Filed before the Should be filed within the
defendant enters his time for but prior to the
plea filing of the answer of the
defending party to the
pleading asserting the
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Motion To Dismiss there from can be interposed only after final

Motion To Quash
Under Rule 16
claim against him.
Filed by the accused May be filed by any
defending party against
whom a claim is asserted
in the action.
If sustained, the court If granted, plaintiff may
may order that another appeal or if subsequent
complaint or case is not barred, he may
information be filed. It re-file the case;
is not a bar to another An order granting a
prosecution for the motion to dismiss based
same offense unless the on res judicata or where
motion was based on the claim or demand has
grounds specified in been paid, waived,
sec. 3 (g) and (i) of abandoned, or otherwise
Rule 117. extinguished or where the
claim is unenforceable
under the Statute of
Frauds shall bar the
refiling of the same action
or claim.
If denied, defendant
answers, or else he may
be declared in default.
Rules as to Motion to Quash
1. If denied – go to trial without prejudice to
reiterating special defenses invoked in said
motion.
2. If after trial on the merits, an adverse
decision is rendered – appeal in the manner
authorized by law. (Marcelo vs. CA, July, 5,
1993).
3. If granted – a final order; immediately
appealable, provided defendant will not be
placed in double jeopardy.
When certiorari may be entertained if
Motion to Quash is denied
judgment and may, therefore, be of no avail.
d. In the interest of substantial justice.
Note: An order granting motion to quash is a
final order which is generally subject to Rule 45
and not Rule 65 subject to an exception that
Rule 65 may be availed of where it can be clearly
established that there was grave abuse of
discretion in issuing the order; information need
only state ultimate facts. (People vs.
Romualdez G.R. No. 166510, July 23, 2008)
When to file
General Rule: At any time before entering his
plea, the accused may move to quash the
complaint or information. (Rule 117, Sec. 1)
1. The motion to quash must be filed before
the arraignment. Thereafter, no motion to
quash can be entertained by the court.
2. It may even be filed during the preliminary
investigation.
Exceptions: A motion to quash can be filed and
entertained at any stage of the proceeding
when:
1. The complaint or information does not
charge an offense.
2. The court has no jurisdiction over the
offense charged.
3. The offense or penalty has been
extinguished.
4. The defendant has been in former jeopardy.
(Miranda vs. Sandiganbayan, 464 SCRA 165)
Prescription of the offense as a ground for a
motion to quash is not waived as this is a
substantive right.

a. When the action is necessary to promote
public welfare and public policy; or
b. Where the case has attracted nationwide
attention, making it imperative to proceed
with dispatch in the consideration thereof, or
c. Where the appeal is found to be an improper
remedy because the order which is sought to
be reviewed is merely interlocutory or
peremptory in character and the appeal
Form and contents (Rule 117, Sec. 2)
a. In writing;
b. Signed by the accused or his counsel;
c. Distinctly specify its factual and legal
grounds.
 The court shall consider no ground other
than those stated in the motion, except

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lack of jurisdiction over the offense If based on an alleged defect of the complaint or
charged. information which can be cured by amendment,
the court shall order that an amendment be
7.H.1. Grounds for Motion to Quash (Rule made.
117, Sec. 3)
If it is based on the ground that the facts
1. That the facts charged do not constitute an charged do not constitute an offense, the
offense; prosecution shall be given by the court an
2. That the court trying the case has no opportunity to correct the defect by amendment.
jurisdiction over the offense charged;
3. That the court trying the case has no Note: The motion to quash shall be granted if:
jurisdiction over the person of the accused;
4. That the officer who filed the information a. The prosecution fails to make the
had no authority to do so; amendment; or
5. That it does not conform substantially to the b. The complaint or information still suffers
prescribed form; from the same defect despite the
6. That more than one offense is charged amendment
except when a single punishment for various
offenses is prescribed by law; 7.H.3. Effect of Sustaining the Motion to
7. That the criminal action or liability has been Quash (Rule 117, Sec. 5)
extinguished;
8. That it contains averments which, if true, 1. The court may order that another complaint
would constitute a legal excuse or or information be filed except if barred.
justification; and 2. If the order is made, the accused, if in
9. That the accused has been previously custody, shall not be discharged unless
convicted or acquitted of the offense admitted to bail.
charged, or the case against him was 3. If no order is made or if having been made,
dismissed or otherwise terminated without no new information is filed within the time
his express consent. specified in the order or within such further
time as the court may allow for good cause,
7.H.2. Distinguish From Demurrer To the accused, if in custody, shall be
Evidence discharged unless he is also in custody for
Motion To Quash Demurrer To Evidence another charge.
Filed before the Filed after the prosecution
defendant enters his has rested its case. 7.H.4. Exception to the Rule that Order
plea.
Sustaining the Motion to Quash Not a Bar
Does not go into the Based upon the inadequacy
to another Prosecution (Rule 117, Sec. 6)
merits of the case but of the evidence adduced by
is rather anchored on the prosecution in support
matters not directly of the accusation. General Rule: An order sustaining the motion
concerned with the to quash is not a bar to another prosecution for
question of guilt or the same offense.
innocence of the
accused. Exception: When the motion was based on
Governed by Rule Governed by Sec. 23, Rule following grounds:
117. 119.
1. That the criminal action or liability has been
 Insufficiency of evidence is not one of the extinguished.
grounds of a Motion to Quash. (People vs. 2. That the accused has been previously
Dumlao, G.R. No. 168918, March 2, 2009) convicted or acquitted of the offense
charged, or the case against him was
Amendment of the complaint or dismissed or otherwise terminated without
information (Rule 117, Sec. 4) his express consent.

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An order denying a motion to quash is  If the case is dismissed upon defendant‘s

interlocutory and not appealable
 The denial by the trial court of a motion to
quash cannot be the subject of a petition for
certiorari, prohibition or mandamus in
another court of coordinate rank.
First, a denial of a motion to quash is not
appealable. Petition for certiorari is only
proper when appeal is not an adequate
remedy. The remedy is to go to trial.
Second, certiorari is an exception and a
recourse grounded only on compelling
reasons such as in the interest of
enlightened and substantial justice,
promotion of public welfare and public
policy, cases that have generated nationwide
attention making it essential to proceed with
dispatch in the consideration thereof, or
judgments attended by grave abuse of
discretion. (Galzote vs. Briones, G.R. No.
164682, September 14, 2011)
request or with his express consent, the
dismissal is not a bar to another prosecution
for the same offense because his act
prevents the court from proceeding to trial
on the merits and rendering judgment of
conviction against him (People vs. Obsania, 23
SCRA 1249).
When all these requisites are present, they
constitute a bar to a second prosecution:
a. For the same offense.
b. For an attempt to commit the same offense.
c. For a frustration of the said offense.
d. For any offense which necessarily includes or
is necessarily included in the first offense
charged.
Instances when dismissal amounts to
acquittal and bars a subsequent
prosecution for the same offense even if
dismissal is at the instance of defendant:

7.H.5. Double Jeopardy (Rule 117, Sec. 7) a. If predicated upon right to speedy trial of the
accused;
Means that when a person is charged with an b. Due to a variance between the proof and
offense and the case is terminated either by allegations;
acquittal or conviction or in any other manner c. In the strength of a demurrer to evidence;
without the consent of the accused, the latter d. Insufficiency of evidence
cannot again be charged with the same or
identical offense. Dismissal Acquittal
Does not decide the Always based on the
Jeopardy refers to peril in which a person is put case on the merits or merits; that is, the
when he is regularly charged with a crime before that the defendant is defendant is acquitted
not guilty. because the evidence
a tribunal properly organized and competent to
does not show
try him. (People v. Jabajab, G.R. Nos. L-9238-39, defendant‘s guilt beyond
November 13, 1956). reasonable doubt.

Requisites:  If an act is punished by a law and an

It is necessary that in the first case -
1. The complaint or information or other formal
charge was sufficient in form and substance
to sustain conviction;
2. The court had jurisdiction;
3. The accused had been arraigned and had
pleaded to the charge; and
4. He was convicted or acquitted or the case
was terminated without his express consent.
ordinance, even if they are considered as
different offenses, conviction/acquittal under
either shall constitute a bar to another
prosecution for the same act.
 If a single act is punished by 2 different
provisions of law, but each provision requires
proof of an additional fact which the other
does not so require, neither conviction nor
acquittal in one will bar a prosecution for the
other (Perez vs. CA, 163 SCRA 236).

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Test for determining whether the
offenses are identical
Same Offense Test – there is identity between
2 offenses not only when the 2nd offense is
exactly the same as the 1st, but also when the
2nd offense is an attempt to or prostration of, or
is necessarily included in the offense charged in
the 1st information.
Exceptions to the Identity Rule:
1. The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge.
2. The facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint
or information (newly discovered facts)
3. 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 (improper
affirmative plea to a lesser offense)
Same Evidence Test – whether the facts, as
alleged in the 2nd information, if proved, would
have been sufficient to sustain the former
information, or from which the accused may
have been acquitted or convicted.
7.H.6. Provisional Dismissal (Rule 117, Sec. 8)
Requisites:
1. Motion by the prosecution with the express
consent of the accused or by the accused
himself, or by both the prosecution and the
accused for a provisional dismissal.
2. Notice to the offended party of the motion
3. Court issued order granting the motion and
dismissing the case provisionally
4. Public prosecutor is served with a copy of
the order of provisional dismissal of the case
(People v. Panfilo Lason, G.R. No. 149453, April 1,
2003).
Provisional Dismissal becomes permanent
for failure to revive the case within:
1. 1 year – for offenses punishable by
imprisonment not exceeding 6 years.
2. 2 years – for offenses punishable by
imprisonment of more than 6 years.
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2
Note: Upon the lapse of the period to revive
the case, the State is presumed, albeit
disputably, to have abandoned or waived its
right to revive the case and prosecute the
accused. The dismissal becomes ipso facto
permanent. He can no longer be charged anew
for the same crime or another crime necessarily
included therein.
Procedure in Reviving Provisionally
Dismissed Cases (People vs. Lacson, supra):
1. If the revival is done within the time-bar and
the case involves the same offense or an
offense necessarily included therein, revival
may be had by the refiling of the Information
or by the filing of a new Information, without
the need of a new preliminary investigation;
2. If after the provisional dismissal, the original
witnesses of the prosecution or some of
them have recanted their testimonies or
have died or are no longer available and new
witnesses for the State have emerged, the
revival within the time-bar for the same
offense or an offense necessarily included
therein may still be done by the refiling of
the Information or by the filing of a new
Information, provided that a new preliminary
investigation is conducted;
3. If, in the revival, other persons are charged
for the same offense or one necessarily
included therein, or if the original charge has
been upgraded, or if the criminal liability of
the accused is upgraded from that as an
accessory to that as a principal, such revival
within the time-bar for the same offense or
an offense necessarily included therein may
likewise be done by the refiling of the
Information or by the filing of a new
Information, provided that a new preliminary
investigation is conducted;
4. No revival may be done beyond the time-
bar, as such would result in the violation of
the constitutional right of the accused
against double jeopardy
Failure to move to quash or to allege any
ground therefor (Rule 117, Sec. 9)
All grounds for a motion to quash are waived if
not seasonably raised, except:
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a. When the information does not charge an

offense;
b. Lack of jurisdiction of the court;
c. Extinction of the offense or penalty, and;
d. Double jeopardy.
7.I. PRE-TRIAL (Rule 118)
Purpose of pre-trial
To simplify the issues, shape up the testimonial
and documentary evidence and generally to clear
the desks for trial (Irving Trust Co. v. US, 221 F.2d
303). See Sec. 1 (f) of Rule 118 – To promote a
fair and expeditions trial of the criminal and civil
aspects of the case.
Pre-trial is mandatory (Rule 118, Sec. 1)
In all criminal cases cognizable by the:
 Agreements covering these matters shall
be approved by the court. (Rule 118, Sec.
2)
Plea Bargaining (in criminal cases) – is a
process whereby the accused and the
prosecution work out a mutually satisfactory
disposition of the case subject to court approval.
It usually involves the defendant's pleading guilty
to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge.
(Daan vs. Sandiganbayan, G.R. Nos. 163972-77,
March 28, 2008)
7.I.2. What the Court Should Do When
Prosecution and Offended Party Agree to
the Plea Offered by the Accused (Rule 116
Sec 1)

1. Sandiganbayan; The private offended party shall be required to

2. Regional Trial Court; appear at the arraignment for purposes of plea
3. Metropolitan Trial Court; bargaining, determination of civil liability, and
4. Municipal Trial Court in Cities; other matters requiring his presence. In case of
5. Municipal Trial Court; failure of the offended party to appear despite
6. Municipal Circuit Trial Court. due notice, the court may allow the accused to
enter a plea of guilty to a lesser offense which is
Period for court to order pre-trial necessarily included in the offense charged with
conference the conformity of the trial prosecutor alone.

After arraignment and within 30 days from the
date the court acquires jurisdiction over the
person of the accused, unless a shorter period is
provided for in special laws or circulars of the
Supreme Court.
7.I.1. Matters to be Considered During Pre-
Trial
a. Plea bargaining;
b. Stipulation of facts;
c. Marking for identification of evidence of the
parties;
d. Waiver of objections to admissibility of
evidence;
e. Modification of the order of trial if the
accused admits the charge but interposes a
lawful defense;
f. Such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case.
7.I.3. Pre-Trial Agreement As Evidence
Against The Accused (Rule 118, Sec. 2)
Requisites:
a. Reduced in writing; and
b. Signed by the accused and counsel.
 If the prosecution discovered that the
accused did not sign the stipulation of facts,
as required by Rule 118, he should submit
evidence to establish the elements of the
crime and not relying solely on the
stipulation of facts (Fiele vs. CA, 162 SCRA
446).
 Pretrial stipulations were duly signed by the
accused and their counsel cannot be allowed
to unilaterally withdraw the same unless set
aside for good cause. In the Joint Stipulation
of Facts and Documents, the prosecution
opted not to present any witness considering

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the defense admitted all the documentary
evidence of the prosecution. (Bayas vs.
Sandiganbayan, G.R. Nos. 143689-91, November
12, 2002)
7.I.4. Non-Appearance At Pre-Trial
Conference (Rule 118, Sec. 3)
The Court may impose proper sanctions 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.
Sanctions and Penalties for Non –
Appearance Refer to the Counsel for the
Accused & the Prosecutor
 Section 8 of Rule 70 of the Rules of Court
requires the appearance of the plaintiff and
the defendant during the preliminary
conference. Unless inconsistent with Rule 70,
the provisions of Rule 18 on pretrial applies
to the preliminary conference. Section 4 of
Rule 18 may supplement Section 8 of Rule
70. Thus, the spirit behind the exception to
personal appearance under the rules on
pretrial is applicable to the preliminary
conference. If there are valid reasons or if a
representative has a ―special authority,‖ a
party‘s appearance may be waived. (Spouses
Macasaet vs. Spouses Macasaet, G.R. No.
154391-92, August 30, 2004).
Contents of pre-trial order (Rule 118, Sec. 4)
1. Actions taken;
2. Facts stipulated;
3. Evidence marked.
7.I.5. Pre-Trial Order
An order issued by the court after the pre-trial
conference.
Effects of pre-trial order
a. Binds the parties;
b. Limits the trial to matters not disposed of;
and
c. Controls the course of the action during the
trial, unless modified by the court to prevent
manifest injustice.
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Referral of Some Cases For Court Annexed
Mediation And Judicial Dispute Resolution
Note: The diversion of pending court cases both
to Court-Annexed Mediation (CAM) and to
Judicial Dispute Resolution (JDR) is plainly
intended to put an end to pending litigation
through a compromise agreement of the parties
Objectives: To actively promote party
autonomy in the resolution of disputes or the
freedom of the parties to make their own
arrangement to resolve disputes. Towards this
end, the State shall encourage and actively
promote the use of Alternative Dispute
Resolution (ADR) as an important means to
achieve speedy and impartial justice and de-clog
court dockets.
7.I.6. Referral of some cases for Court-
Annexed Mediation (CAM) and Judicial
Dispute Resolution (JDR) proceedings:
1. All civil cases and the civil liability of criminal
cases covered by the Rule on Summary
Procedure, including the civil liability for
violation of B.P. 22, except those which by
law may not be compromised;
2. Special proceedings for the settlement of
estates;
3. All civil and criminal cases filed with a
certificate to file action issued by the Punong
Barangay or the Pangkat ng
Tagapagkasundo under the Revised
Katarungang Pambarangay Law (Chapter 7,
RA 7160);
4. The civil aspect of Quasi-Offenses under
Title 14 of the Revised Penal Code;
5. The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment, where the
offended party is a private person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings,
testate and intestate, brought on appeal
from the exclusive and original jurisdiction
granted to the first level courts under
Section 33, par. (1) of the Judiciary
Reorganization Act of 1980 (A.M. No.
08‐9‐10‐SC‐PHILJA);
8. All cases of forcible entry and unlawful
detainer brought on appeal from the
exclusive and original jurisdiction granted to

the first level courts under Section 33, par.
(2) of the Judiciary Reorganization Act of
1980;
9. All civil cases involving title to or possession
of real property or an interest therein
brought on appeal from the exclusive and
original jurisdiction granted to the first level
courts under Section 33, par. (3) of the
Judiciary Reorganization Act of 1980; and
10. All habeas corpus cases decided by the first
level courts in the absence of the Regional
Trial Court judge, that are brought up on
appeal from the special jurisdiction granted
to the first level courts under Section 35 of
the Judiciary Reorganization Act of 1980.
The following cases shall not be referred to
Court Annexed Mediation and Judicial
Dispute Resolution:
1. Civil cases which by law cannot be
compromised (Article 2035, New Civil Code)
2. Habeas Corpus petitions;
3. All cases under Republic Act No. 9262
(Violence against Women and Children); and
4. Cases with pending application for
Restraining Orders/Preliminary Injunctions.
Note: In cases covered under 1, 4 and 5 where
the parties inform the court that they have
agreed to undergo mediation on some aspects
thereof, e.g., custody of minor children,
separation of property, or support pendente lite,
the court shall refer them to mediation.
Archiving of Criminal Cases
In criminal cases: (1) if after the issuance of the
warrant of arrest, accused remains at large for 6
months. Court should require the police officer to
explain why accused was not apprehended. It
should issue an alias warrant of arrest and order
the archiving of the case; (2) when proceedings
are ordered suspended for an indefinite period
because (i) accused is suffering from an unsound
mental condition; (ii) valid prejudicial question;
(iii) interlocutory order is elevated; and, (iv)
accused jumped bail before arraignment. (Adm.
Circ. No. 7-A-92, June 21, 1993)
7.J. TRIAL (Rule 119)
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Is the examination before a competent tribunal
according to the laws of the land, of the facts
put in issue in a case for the purpose of
determining such issue (US vs. Raymundo, 14 Phil.
439).
1. Trial shall commence within 30 days from
receipt of the pretrial order
2. The accused after a plea of not guilty shall
have 15 days to prepare for trial (Rule 119,
Sec. 1).
Continuous trial system (Rule 119, Sec. 2)
Trial once commenced shall continue from day to
day as far as practicable until terminated; but it
may be postponed for a reasonable period of
time for good cause.
Limitation on the Trial Period:
It shall in no case exceed 180 days from the first
day of trial, except as otherwise provided by the
Supreme Court.
When presence of the accused is required
The presence of the accused is required only
(Art. III, Sec. 14 (2), 1987 Constitution):
1. At the arraignment and plea;
2. At the promulgation of judgment, except
when the conviction is for a light offense, in
which case the judgment may be
pronounced in the presence of his counsel or
representative, but is not indispensable
therein, as promulgation may be made in
absentia; and
3. When ordered by the court for purposes of
identification during trial.
7.J.1. Instances when Presence of Accused
is Required by Law
The only instances when the presence of the
accused is required by law and when the law may
forfeit the bond if he fails to appear are:
a. On arraignment.
b. On promulgation of judgment except for light
offenses.
c. For identification purposes.
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d. When the court with due notice requires so
(Marcos vs. Ruiz, Sept. 1, 1992)
7.J.2. Requisites before trial can be
suspended on account of absence of
witness
a. That the witness is material and appears to
the court to be so.
b. That the party who applies has been guilty
of no neglect.
c. That the witnesses can be had at the time to
which the trial is deferred and incidentally
that no similar evidence could be obtained.
d. That an affidavit showing the existence of
the above circumstances must be filed.
7.J.3. Trial in Absentia
a. Accused has been arraigned
b. He has been duly notified of the trial
c. His failure to appear is unjustified (Gimenez
vs. Nazarreno, 160 SCRA 1).
Remedies of an accused when prosecuting
officer secures postponement of trial
When a prosecuting officer, without good cause,
secures postponements of the trial of a
defendant against the latter‘s protest and
beyond a reasonable period of time, the accused
may resort to the following remedies:
a. Mandamus to compel a dismissal of the
information.
b. Habeas corpus to obtain his freedom, if he is
restrained of his liberty.
c. Adhere faithfully to the session hours
prescribed by laws.
d. Maintain full control of the proceedings.
Exclusions to the computation of time for
trial to commence (Rule 119, Sec. 3)
a. Proceedings concerning the accused (e.g.
physical and mental examination, prejudicial
question);
b. Absence or unavailability or essential
witness;
c. Mental incompetence or physical inability of
the accused;
d. Dismissal of information for the filing of
another charge against the accused for the
same offense;
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e. Accused is joined for trial with co-accused
over whom the court has not acquired
jurisdiction;
f. Continuance.
7.J.4. Remedy where Accused is not
Brought to Trial Within the Prescribed
Period (Rule 118, Sec. 9)
1. The information may be dismissed on motion
of the accused on the ground of denial of his
right to speedy trial.
2. Dismissal shall constitute double jeopardy.
3. The accused must move to dismiss before
trial actually commences, otherwise, he
waives such right.
Dismissal w/o Dismissal With
Prejudice Prejudice
Allows a new suit to be An adjudication on the
brought on the same merits, the final
cause of action. disposition, barring the
right to bring or maintain
an action on the same
claim or cause; res
judicata as to every
matter litigated.
The right to speedy disposition of cases, like the
right to speedy trial, is violated only when the
proceedings are attended by vexatious,
capricious and oppressive delays.
In the determination of whether said right has
been violated, particular regard must be taken of
the facts and circumstances peculiar to each
case.
 ―Speedy disposition of cases‖ is consistent
with reasonable delays‖. if the long delay in
the termination of the preliminary
investigation was not solely the prosecution‘s
fault, but was also due to incidents
attributable to the accused and his counsel,
the right of the accused to speedy
disposition of cases is not violated. (Mendoza-
Ong vs. Sandiganbayan, et al., G.R. No. 146368-
69, October 18,2004)
 In criminal cases, a motion to dismiss may
be filed on the ground of denial of the
accused‘s right to speedy trial. This denial is
characterized by unreasonable, vexatious,
and oppressive delays without fault of the
accused, or by unjustified postponements

that unreasonably prolonged the trial. This
was the main thrust of Cabador‘s motion to
dismiss and he had the right to bring this up
for a ruling by the trial court. The fact is that
Cabador did not even bother to do what is so
fundamental in any demurrer. He did not
state what evidence the prosecution had
presented against him to show in what
respects such evidence failed to meet the
elements of the crime charged. His so-called
"demurrer" did not touch on any particular
testimony of even one witness. He cited no
documentary exhibit. Indeed, he could not
because, he did not know that the
prosecution finally made its formal offer of
exhibits on the same date he filed his motion
to dismiss.16 To say that Cabador filed a
demurrer to evidence is equivalent to the
proverbial blind man, touching the side of an
elephant, and exclaiming that he had
touched a wall. (People vs. Cabador, G.R. No.
186001, October 2, 2009)
Order of trial (Rule 119, Sec. 11)
1) The prosecution shall present evidence to
prove the charge and, in the proper case,
the civil liability.
2) The accused may present evidence to
prove his defense and damages, if any,
arising from the issuance of a provisional
remedy in the case.
3) 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.
4) Upon admission of the 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.
5) When the accused admits the act or
omission charged in the complaint or
information but interposes a lawful defense,
the order of trial may be modified.
 A departure from the order of the trial is
not reversible as where it was agreed
upon or not seasonably objected to, but
not where the change in the order of the
trial was timely objected by the defense.
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 Where the order of the trial set forth
under this section was not followed by
the court to the extent of denying the
prosecution an opportunity to present its
evidence, the trial is a nullity (People vs.
Balisacan, 17 SCRA 1119).
Reverse trial
When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the trial court may
allow the accused to present his evidence and
thereafter give the prosecution the opportunity
to present his rebuttal evidence.
 Refusal of the court to reverse the order of
trial upon demand of the accused who
pleads self-defense as a defense is NOT a
reversible error (People vs. Gutierrez, 302 SCRA
643).
 The modification of the order of trial is
discretionary and denial is interlocutory in
nature and hence, not appealable. (People v.
Marcial, G.R. Nos. 152864-65, September 27,
2006)
Application for examination of witness for
accused before trial (Rule 119, Sec. 12)
Accused may have witnesses examined
conditionally in his behalf before trial upon
motion with notice to all other parties.
The motion must state:
1) Name and residence of witness;
2) Substance of testimony;
3) Witness is sick or infirm as to afford
reasonable ground to believe that he will not
be able to attend the trial or resides more
than 100 km from the place of trial and has
no means to attend the same, or other
similar circumstances exist that would make
him unavailable or prevent him from
attending trial.
4) The motion shall be supported by an
affidavit and such other evidence as the
court may require.
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Examination of defense witness (Rule 119,
Sec. 13)
 The examination of witnesses must be done
orally before a judge in open court. This is
true especially in criminal cases where the
Constitution secures to the accused his right
to a public trial and to meet the witnessess
against him face to face. The requirement is
the "safest and most satisfactory method of
investigating facts" as it enables the judge to
test the witness' credibility through his
manner and deportment while testifying. It is
not without exceptions, however, as the
Rules of Court recognizes the conditional
examination of witnesses and the use of
their depositions as testimonial evidence in
lieu of direct court testimony. (Go vs. People,
G.R. No. 185527, July 18, 2012)
 Rule 119 categorically states that the
conditional examination of a prosecution
witness shall be made before the court
where the case is pending. Contrary to
petitioners‘ contention, there is nothing in
the rule which may remotely be interpreted
to mean that such requirement applies only
to cases where the witness is within the
jurisdiction of said court and not when he is
kilometers away, as in the present case.
Therefore, the court may not introduce
exceptions or conditions. Neither may it
engraft into the law (or the Rules)
qualifications not contemplated. When the
words are clear and categorical, there is no
room for interpretation. There is only room
for application. It is true that Section 3, Rule
1 of the Rules of Court provides that the
rules of civil procedure apply to all actions,
civil or criminal, and special proceedings. In
effect, it says that the rules of civil procedure
have suppletory application to criminal cases.
However, it is likewise true that the criminal
proceedings are primarily governed by the
Revised Rules of Criminal Procedure.
Considering that Rule 119 adequately and
squarely covers the situation in the instant
case, we find no cogent reason to apply Rule
23 suppletorily or otherwise. (Vda. De
Manguerra vs. Risos, G.R. No. 152643, August 28,
2008)
 It is true that Section 3, Rule 1 of the Rules
of Court provides that the rules of civil
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procedure apply to all actions, civil or
criminal, and special proceedings. In effect,
it says that the rules of civil procedure have
suppletory application to criminal cases.
However, it is likewise true that the criminal
proceedings are primarily governed by the
Revised Rules of Criminal Procedure.
Considering that Rule 119 adequately and
squarely covers the situation in the instant
case, we find no cogent reason to apply Rule
23 suppletorily or otherwise. To reiterate,
the conditional examination of a prosecution
witness for the purpose of taking his
deposition should be made before the court,
or at least before the judge, where the case
is pending. Such is the clear mandate of
Section 15, Rule 119 of the Rules. We find
no necessity to depart from, or to relax, this
rule. As correctly held by the CA, if the
deposition is made elsewhere, the accused
may not be able to attend, as when he is
under detention. More importantly, this
requirement ensures that the judge would be
able to observe the witness‘ deportment to
enable him to properly assess his credibility.
This is especially true when the witness‘
testimony is crucial to the prosecution‘s case.
(Vda. De Manguerra vs. Risos, supra)
Application for
Modes of Discovery
examination of witness
under the Civil
under the Rules of
Procedure
Criminal Procedure
(Rules 24)
(Rule 119, Sec. 12)
Rule 24 applies in a The procedure set forth
suppletory character must be complied with
in all matters not strictly
specifically touched on
by Sec. 12, Rule 119
and the preceding
sections.
The taking of The conditional
depositions under examination of a defense
Rule 24 is taken for witness under Sec. 12 and
the preservation of a 13, Rule 119 are taken for
material witness‘ the preservation also of a
testimony. material witness‘ testimony.
If the court is satisfied that the examination of
witness is necessary as provided in Sec 4, an
order directing that the witness be examined
shall be made and a copy served on the fiscal.
The examination shall be taken before any judge
or, if not practicable, before any member of the
Bar in good standing so designated in the order.
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The examination shall proceed notwithstanding Face-to-Face Cross-examination of a

the absence of the prosecutor provided he was confrontation in a witness in a foreign place
public criminal trial outside the courtroom in
duly notified of the hearing.
in the presence of the absence of a trial
the presiding judge judge
A written record of the testimony shall be taken. The right of
confrontation is held
to apply specifically to
criminal proceedings The main and essential
and to have a twofold purpose of requiring a witness
purpose: (1) to afford to appear and testify orally at
the accused an a trial is to secure for the
opportunity to test adverse party the opportunity
the testimony of of cross-examination. "The
witnesses by cross- opponent", according to an
examination, and (2) eminent authority, "demands
to allow the judge to confrontation, not for the idle
observe the purpose of gazing upon the
deportment of witness, or of being gazed
witnesses. upon by him, but for the
purpose of cross examination
The Court explained which cannot be had except
in People v. Seneris by the direct and personal
that the constitutional putting of questions and
requirement "insures obtaining immediate
that the witness will answers." There is also the
give his testimony advantage of the witness
under oath, thus before the judge, and it is this
deterring lying by the – it enables the judge as trier
threat of perjury of facts "to obtain the elusive
charge; it forces the and incommunicable evidence
witness to submit to of a witness' deportment while
cross-examination, a testifying, and a certain
valuable instrument in subjective moral effect is
exposing falsehood produced upon the witness. It
and bringing out the is only when the witness
truth; and it enables testifies orally that the judge
the court to observe may have a true idea of his
the demeanor of the countenance, manner and
witness and assess expression, which may
his credibility." confirm or detract from the
(Bernas, J.G., The weight of his testimony.
1987 Constitution: A Certainly, the physical
Commentary, 1996 condition of the witness will
Edition, p. 463, citing reveal his capacity for
U.S. v. Anastacio, 6 accurate observation and
Phil. 413, 416 (1906); memory, and his deportment
U.S. v. Raymundo, 14 and physiognomy will reveal
Phil. 416, 438 (1909); clues to his character. These
and U.S. v. Javier, 37 can only be observed by the
Phil. 449, 452 (1918)) judge if the witness testifies
orally in court. (People vs.
Estenzo, G.R. No. L-41166,
August 25, 1976)

Bail to secure appearance of material

witness (Rule 119, Sec. 14)

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Requisites:
a) Court is satisfied, upon proof or oath, that a
material witness will not testify when
required;
b) Motion by either party;
c) Order of court to the witness to post bail
Effect of refusal to post bail:
The court shall commit him to prison.
Period of Imprisonment
1) Until he complies; or
2) Until he is legally discharged after his
testimony has been taken.
Admission to the witness protection
program (RA 6981)
Requisites:
1) The person has witnessed or has knowledge
or information on the commission of a crime.
2) The person has testified or testifying or
about to testify before any judicial or quasi-
judicial body or before any investigating
authority.
3) The offense in which his testimony will be
used is a grave felony as defined under the
RPC, or its equivalent under special laws.
4) His testimony can be substantially
corroborated in its material points.
5) He or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to his life or
bodily injury or there is a likelihood that he
will be killed, forced, intimidated, harassed
or corrupted to prevent him from testifying
or to testify or evasively because of or on
account of his testimony.
6) He is not a law enforcement officer, even if
he would be testifying against other law
enforcement officers. In such case, only
immediate members of his family may avail
themselves of the protection provided for
under the Witness Protection Act.
Responsibilities of a witness under the
witness protection program
a) To testify before and provide information to
all appropriate law enforcement officials
concerning all appropriate proceedings in
connection with or arising from the activities
involved in the offense charged.
b) To avoid the commission of a crime.
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c) To take all necessary precautions to avoid
detection by others of the facts concerning
the protection provided him.
d) To comply with legal obligations and civil
judgment against him.
e) To cooperate with respect to all reasonable
requests of officers and employees.
f) To regularly inform the appropriate program
official of his current activities and address.
Examination of witness for the prosecution
(Rule 119, Sec. 15)
A witness may be conditionally examined
when
1) Is too sick or infirm to attend trial; or
2) Has to leave the Philippines with no definite
date of returning.
 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 in examination at the trial.
 Failure or refusal of the accused to
attend after notice shall be considered as
a waiver.
Trial of several accused (Rule 119, Sec. 16)
Joint trial – if jointly charged.
Separate trial – upon motion of prosecutor or
any accused.
 The motion for separate trial must be filed
before the commencement of the trial and
cannot be raised for the first time on appeal.
 If a separate trial is allowed to one of two or
more defendants, his testimony therein
imputing guilt to any of the co-accused is not
admissible against the latter who was not
able to cross-examine him.
7.J.5. Requisites for Discharge of Accused
To Be State Witness (Rule 119, Sec. 17)
Motion to discharge should be made by the
prosecution before resting its case.
In the discharge of an accused in order that he
may be a state witness, the following conditions
must be present, namely:

1) Two or more accused are jointly charged
with the commission of an offense;
2) The motion for discharge is filed by the
prosecution before it rests its case;
3) The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a hearing in
support of the discharge;
4) The accused gives his consent to be a state
witness; and
5) The trial 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. (Salvanera vs. People, G.R. No.
143093, May 21, 2007)
Note: Absence of any of the requisites is a
ground for objection to the motion for his
discharge, but such objection must be raised
before the discharge is ordered.
The Rules do not disqualify an accused
sought to be discharged as witness for the
state merely on the ground that he has
committed a falsification himself, or that he
had actually committed the crime charged.
The Rules say that it is necessary that the
said defendant does not appear to be the
'most guilty,' from which the conclusion
follows that the guilt of an accused of the
crime charged is no reason why he may not
be excluded as witness for the State. As a
matter of fact, the candid admission of an
accused, of his participation in a crime, is a
guaranty that if he will testify in court he will
testify truthfully; so that even if an accused
actually participated in the offense charged
in the information, he may still be made a
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witness. (Lugtu vs. CA, G.R. No. 42037, March
21, 1990)
7.J.6. Effects of Discharge of Accused as
State Witness (Rule 119, Sec. 18)
If granted – Evidence adduced in support of
the discharge shall automatically form part of the
trial.
Operates as an acquittal and bar to further
prosecution for the same offense, unless he fails
or refuses to testify in accordance with his sworn
statement from which his discharge was based.
If denied – the accused‘s sworn statement shall
be inadmissible in evidence.
Exceptions to the effects of a motion to
discharge
1) If the accused fails or refuses to testify
against his co-accused in accordance with
his sworn statement constituting the basis of
the discharge.
2) Failure to testify refers exclusively to
defendant‘s will or fault.
3) Where an accused who turns state‘s
evidence on a promise of immunity but later
retracts and fails to keep his part of the
agreement, his confession of his participation
in the commission of the crime is admissible
as evidence against him.
4) Once discharged, even if one or all of the
conditions required for discharge did not
really exist, that fact does not affect the
legal consequences of the discharge and the
admissibility and credibility of his testimony if
otherwise admissible and credible.
Note: Erroneous or improper discharge of a
state witness does not affect the
competency and quality of the testimony of
the discharged defendant.
When mistake has been made in charging
the proper offense (Rule 119, Sec. 19)
Substitution of the complaint or information must
not amount to double jeopardy.
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1) The accused shall not be discharged if there
appears a good cause to detain him.
2) Apparently, to raise the defense of double
jeopardy, three requisites must be present:
3) A first jeopardy must have attached prior to
the second;
4) The first jeopardy must have been validly
terminated; and
5) The second jeopardy must be for the same
offense as that in the first. (Dimayacyac vs.
Court of Appeals, G.R. No. 136264, May 28, 2004)
Legal jeopardy attaches only:
1) Upon a valid indictment.
2) Before a competent court.
3) After arraignmen.
4) A valid plea having been entered; and
5) The case was dismissed or otherwise
terminated without the express consent of
the accused.
 Appellant failed to file a motion to quash
within the time prescribed under Section 1,
Rule 117 of the Rules of Court, he is thus
deemed to have waived the defect in the
Information. A duplicitous information is
valid since such defect may be waived and
the accused, because of such waiver, could
be convicted of as many offenses as those
charged in the information and proved
during trial. (Mendoza-Ong vs. Sandiganbayan,
et al., G.R. No. 146368-69, October 18, 2004)
Exclusion of the public (Rule 119, Sec. 21)
Grounds:
a) When evidence to be presented is offensive
to decency or public morals; or
b) On motion of accused.
c) Under the Child Witness Rule, because the
child might be intimidated.
2018
When/ How Dismissed:
a) On the court‘s own initiative after giving the
prosecution the opportunity to be heard; or
b) Upon demurrer to evidence filed by the
accused with or without leave of court.
Motion for leave of court to file demurrer
to evidence:
a) Shall specifically state its grounds;
b) Shall be filed within a non-extendible period
of 5 days after prosecution rests its case.
 The prosecution may oppose the motion
within a non-extendible period of 5 days
from receipt.
Effects of Denial of Demurrer to Evidence:
a. If filed with leave of court – accused
may adduce evidence in his defense.
If filed without leave of court – accused
shall be deemed to have waived his right to
present evidence and submits the case for
judgment, based on prosecution‘s evidence.
Not reviewable by appeal or certiorari before
judgment.
b. Effects of Granting Demurrer to
Evidence:
a) Dismissal, amounting to acquittal.
b) Not appealable.

Consolidation of trials of related offenses

(Rule 119, Sec. 22)

This contemplates a situation where separate

informations are filed for offenses founded on
the same facts and for offenses which form part
of a series of offenses of similar character.

7.J.7. Demurrer to Evidence (Rule 119, Sec.

23)

Ground: Insufficiency of evidence.

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CIVIL DEMURRER CRIMINAL DEMURRER

Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading under the Rules on
Summary Proceedings because (1) it is there to similarly expedite the proceedings and (2) it is not
among those mentioned under prohibited pleadings
Similarities The ground is the same, that is, INSUFFICIENCY OF EVIDENCE
Only available AFTER the presentation of the evidence of the plaintiff or prosecution, as the case may
be
Court may either grant or deny the Demurrer
More difficult to file because the plaintiff is
Easier to file because the prosecution is required to
only required to present his case by
prove the guilt of accused beyond reasonable doubt
preponderance of evidence

if DENIED - distinguish whether there had been prior

leave of court (1) if with leave, accused may proceed
If DENIED - plaintiff presents evidence
with presentation of his evidence; (2) if without leave,
accused can no longer present his evidence
Differences
if GRANTED - the case is dismissed; order if GRANTED - accused is acquitted; order of acquittal
of dismissal is a FINAL order, hence is NOT appealable; otherwise, it will be a violation of
appealable his right against double jeopardy
if plaintiff appeals and the appellate court
REVERSES - defendant is no longer allowed
to present evidence

 To determine whether the pleading filed is a based on a demurrer to evidence filed by

demurer to evidence or a motion to dismiss,
the Court must consider (1) the allegations
in it made in good faith; (2) the stage of the
proceeding at which it is filed; and (3) the
primary objective of the party filing it.
(People vs. Cabador, supra citing Enojas, Jr. v.
Commission on Elections, 347 Phil. 510, 1997)
 A demurrer to evidence is filed after the
prosecution has rested its case and the trial
court is required to evaluate whether the
evidence presented by the prosecution is
sufficient enough to warrant the conviction
of the accused beyond reasonable doubt. If
the court finds that the evidence is not
sufficient and grants the demurrer to
evidence, such dismissal of the case is one
on the merits, which is equivalent to the
acquittal of the accused. The court cannot
review an order granting the demurrer to
evidence and acquitting the accused on the
ground of insufficiency of evidence because
to do so will be place the accused in double
jeopardy. Double jeopardy attaches even if
the dismissal of the case was made on
motion of the accused if: (1) the dismissal is
the accused after the prosecution has
rested, which has the effect of a judgment
on the merits and operates as an acquittal;
and, (2) if the dismissal is made also on
motion of the accused because of the denial
of his right to a speedy trial which is in
effect a failure to prosecute. (Bangayan Jr. vs.
Bangayan, G.R. No. 172777, October 19, 2011)
 The proscription against double jeopardy
only envisages appeals based on errors of
judgment, but not errors of jurisdiction.
Jurisprudence recognizes two grounds
where double jeopardy will not attach, these
are: (i) on the ground of grave abuse of
discretion amounting to lack or excess of
jurisdiction; and/or (ii) where there is denial
of a party‘s due process rights. In this case,
the SC found that the State was not denied
due process in the proceedings before the
Sandiganbayan. Neither was there any
indication that the special prosecutor
deliberately and willfully failed to present
available evidence or that other evidence
could be secured. (People v. Sandiganbayan

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(Fourth Division), G.R. No. 153304-05, February
7, 2012)
Reopening (Rule 119, Sec. 24)
Rules:
a) Must be made before finality of judgment of
conviction
b) Purpose – to avoid a miscarriage of justice
c) Proceedings must terminate within 30 days
from order granting it
d) Motu proprio by the judge or upon motion,
with hearing in either case.
 A motion to reopen a case to receive further
proofs was not in the old rules but it was
nonetheless a recognized procedural
recourse, deriving validity and acceptance
from long established usage. Under Sec. 24,
Rule 119, ―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.‖ Thus,
a reopening must be before the finality of a
judgment of conviction; the order is issued
by the judge on his own initiative or upon
motion; the order is issued only after a
hearing is conducted; the order intends to
prevent a miscarriage of justice; and, the
presentation of additional and/or further
evidence should be terminated within 30
days from the issuance of the order.
(Cabarles v. Maceda, G.R. No. 161330, February
20, 2007)
7.K. JUDGMENT (Rule 120)
Is the adjudication by the court that the accused
is guilty or not guilty of the offense charged and
the imposition of the proper penalty and civil
liability provided for by law. (Rule 120, Sec. 1)
It is not necessary that the judge who tried the
case be the same judicial officer to decide it. It
is sufficient that he be apprised of the evidence
already presented by a reading of the transcript
of the testimonies already introduced, in the
same manner as appellate courts review
evidence on appeal.
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7.K.1. Requisites of a Judgment:
a) Written in the official language;
b) Personally and directly prepared by the
judge;
c) Signed by the judge;
d) Contain a clear and distinct statement of the
fact and the law on which it is based.
 If judgment is not put in writing, the
remedy is to file a petition for
mandamus to compel the judge to put
in writing the decision of the court.
Jurisdictional requirements before a
judgment may be rendered:
1. Jurisdiction over the subject matter;
2. Jurisdiction over the territory; and
3. Jurisdiction over the person of the accused.
(Antiporda, Jr. v. Garchitorena, G.R. No.
133289, December 23, 1999)
7.K.2. Contents of Judgment of Conviction
(Rule 120, Sec. 2)
1) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating and mitigating
circumstances attending its commission.
2) The participation of the accused, whether as
principal, accomplice or accessory.
3) The penalty imposed upon the accused.
4) The civil liability or damages caused by the
wrongful act, unless civil action has been
reserved or waived.
 In [previous cases], the principal and
accomplice were made to pay equal shares
of the civil indemnity. This makes the
accomplice who had less participation in the
commission of the crime equally liable with
the principal for the civil indemnity. The
degree of their participation in the crime
was not taken into account in the
apportionment of the amount of the civil
indemnity. This is contrary to the principle
behind the treble division of persons
criminally responsible for felonies, i.e., that
the liability must be commensurate with the
degree of participation of the accused in the
crime committed. In such a situation, the
accomplice who just cooperated in the

execution of the offense but whose
participation is not indispensable to the
commission of the crime is made to pay the
same amount of civil indemnity as the
principal by direct participation who took a
direct part in the execution of the criminal
act. It is an injustice when the penalty and
liability imposed are not commensurate to
the actual responsibility of the offender; for
criminal responsibility is individual and not
collective, and each of the participants
should be liable only for the acts actually
committed by him.88 The proportion of this
individual liability must be graduated not
only according to the nature of the crime
committed and the circumstances attending
it, but also the degree and nature of
participation of the individual offender.
(People vs. Montesclaros, G.R. No. 181084, June
16, 2009)
 There is nothing in the law which permits
courts to impose sentences in the
alternative. (Abellana vs. People, G.R. No.
174654, August 17, 2011)
Contents of judgment of acquittal (Rule 120,
Sec. 2)
a) That evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
b) That the evidence merely failed to prove his
guilt beyond reasonable doubt
c) That the act or omission from which the civil
liability might arise:
1) did not exist; or
2) exists.
Reasonable Doubt – state of the case which
after full consideration of all evidence, leaves
the mind of the judge in such a condition that
he cannot say that he feels an abiding
conviction, to a moral certainty, of the truth of
the charge.
Acquittal – a finding of not guilty based on the
merits, that is, the accused is acquitted because
the evidence does not show that his guilt is
beyond reasonable doubt, or a dismissal of the
case after the prosecution has rested its case
upon motion of the accused on the ground that
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the evidence fails to show beyond reasonable
doubt that the accused is guilty.
 An acquittal of an accused based on
reasonable doubt does not bar the offended
party from filing a separate civil action
based on quasi-delict unless the judgment
includes a declaration that the facts from
which the civil liability might arise did not
exist.
Judgment for two or more offenses (Rule
120, Sec. 3)
When two or more offenses are charged in a
single complaint or information, and the accused
fails to object to it before trial, the court may
convict the accused of as many offenses as
charged and proved and impose on him the
penalty for each offense, setting out separately
the findings of fact and law in each offense.
Judgment in case of variance between
allegation and proof (Rule 120, Sec. 4)
General Rule: An accused can be convicted of
an offense only when it is both charged and
proved, or if it is not proved although charged,
the accused cannot be convicted thereof.
Exception: Where there is a variance between
the offense charged in the
information/complaint and that is proved; and
the offense as charged is included 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.
When offense includes or is included in
another (Rule 120, Sec. 5)
General Rule: If what is proved by the
prosecution is an offense that is included in the
offense charged in the information, the accused
may validly be convicted of the offense proved.
Exception: Where facts supervened after the
filing of the information, which change the
nature of the offense.
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 An offense charged necessarily includes
another when some essential elements or
ingredients of the offense charged
constitute the offense proved, or when the
essential elements or ingredients of the
offense charged constitute or form part of
those constituting the offense proved, then
one offense is included in the other.
 An accused cannot be convicted for the
lesser offense necessarily included in the
crime charged if at the time of the filing of
the information the lesser offense has
already prescribed (Francisco vs. CA, 122 SCRA
538).
7.K.3. Promulgation of Judgment;
Instances of Promulgation of Judgment in
Absentia
The official proclamation or announcement of
judgment. It consists of reading the judgment or
sentence in the presence of the accused and
any judge of the court rendering the judgment.
(Rule 120, Sec. 6)
 It is the point of reference when the
judgment becomes final.
Rules on validity of promulgation of
judgment
1) The judgment must have been rendered and
promulgated during the incumbency of the
judge who signed it.
2) The presence of counsel during the
promulgation of judgment is not necessary.
Instances of promulgation of judgment in
absentia (Rule 120, Sec. 6)
Instances when a judgment may be
promulgated even without the personal
presence of the accused:
1) When the judgment is for a light offense, in
which case, the accused‘s
counsel/representative may stand in for
him; and
2) In cases where despite due notice to the
accused or his bondsman or warden and
counsel, the accused failed to appear at the
promulgation of the decision.
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Note: If the judgment is for conviction and
the accused‘s failure to appear is without
justifiable cause, he shall lose the remedies
available in the rules against the judgment
and the court order his arrest
Within 15 days from the promulgation of the
judgment, however, the accused may
surrender and file a motion for leave of
court to avail of said remedies. If his motion
is granted, he may avail of the remedies
within 15 days from notice.
Elements for a valid promulgation in
absentia
a) The judgment is recorded in the criminal
docket; and
b) A copy thereof is served upon the accused
in his last known address or to his counsel.
Modification of judgment (Rule 120, Sec. 7)
Upon motion of the accused, a judgment of
conviction may be modified or set aside by the
court before it has become final or before an
appeal has been perfected.
7.K.4. When A Judgment Becomes Final
1) When the period for perfecting an appeal
has lapsed.
2) When the accused commences to serve
sentence.
3) When the accused expressly waives in
writing his right to appeal.
4) When the accused applies for probation,
thereby waiving the right to appeal.
Note: A judgment of acquittal becomes final
immediately after promulgation and cannot be
recalled for correction or amendment.
 The prosecutor cannot ask for the
modification or setting aside of a judgment
of conviction because the rules clearly
provide that a judgment of conviction may
be modified or set aside by the court
rendering upon motion of the accused.
 The trial court can validly amend the civil
portion of its decision within 15 days from
promulgation thereof even though the
appeal had in the meantime already been

perfected by the accused from judgment of
conviction.
Entry of judgment (Rule 120, Sec. 8)
After a judgment has become final, it shall be
entered in accordance with Rule 36.
The final judgment of the court is carried into
effect by a process called ―mittimus‖.
Mittimus is a process issued by the court after
conviction to carry out the final judgment, such
as commanding a prison warden to hold the
accused in accordance with the terms of the
judgment.
Finality of judgment v. Entry of judgment
The finality of the judgment is entirely distinct
from its entry and the delay in the latter does
not affect the effectivity of the former which is
counted from the expiration of the period to
appeal. (Munnez vs. CA, G.R. No. L-46040, July
23, 1987)
7.L. NEW TRIAL OR RECONSIDERATION
(Rule 121)
New trial
The rehearing of a case already decided but
before the judgment of conviction therein
rendered has become final, whereby errors of
law or irregularities are expunged from the
record, or new evidence is introduced, or both
steps are taken.
 A motion for new trial or reconsideration
should be filed with the trial court within 15
days from the promulgation of the judgment
and interrupts the period for perfecting an
appeal from the time of its filing until notice
of the order overruling the motion shall have
been served upon the accused or his
counsel (Rule 122, Sec.6).
The trial court loses jurisdiction over its
sentence even before the lapse of 15 days
when:
1) Defendant voluntarily submits to the
execution of the sentence.
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2) The defendant perfects his appeal. The
moment the appeal is perfected, the court a
quo loses jurisdiction over it, except for the
purpose of correcting clerical errors.
7.L.1. Grounds for New Trial (Rule 121, Sec. 2)
a. Errors of law or irregularities committed
during the trial prejudicial to the
substantial right of the accused.
b. New and material evidence discovered.
 The first ground for new trial requires that
the errors or irregularities prejudicial to the
substantial rights of the accused must
havebeen committed during the trial. The
phrase ―during the trial‖ refers to that period
from arraignment to the rendition of
judgement and not only to the trial proper,
and considers, as errors committed during
such period, the holding of the trial over the
objection of the accused despite the lack of
preliminary investigation, or where the
accused was denied counsel, or where such
counsel was not afforded at least two (now
15) days to prepare for trial (People vs.
Tamayo, supra; People vs. Enriquez, supra;
REGALADO page 602 11th edition)
 In the case of newly discovered evidence as
a ground for new trial, it should be
established that:
1. That the evidence was discovered after
trial;
2. That such evidence could not have been
discovered and produced at the trial
even with the exercise of reasonable
diligence;
1) The evidence is of such a weight that it
would probably change the judgment if
admitted. (People vs. Mangulabnan, 99 Phil.
992).
 Evidence is considered material if there is
reasonable likelihood that the testimony or
evidence could have produced a different
result and the accused would have been
acquitted (Tan Ang Bun vs. CA, 182 SCRA 238).
 The decision sought to be reviewed in this
petition for the issuance of a writ of habeas
corpus has long attained finality and entry of
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judgment had already been made, upon
examination of the evidence presented by
the petitioner, the court held that the DNA
evidence does not fall within the statutory or
jurisprudential definition of ―newly
discovered evidence‖. (De Villa vs. Director of
New Bilibid Prisons, 442 SCRA 706)
7.L.2. Grounds for Reconsideration
(Rule 121, Sec. 3)
1) Errors of law in the judgment;
2) Errors of fact in the judgment.
Civil Action Criminal Action
New Trial
Fraud, accident, 1) Errors of law or
mistake or excusable irregularities committed
neglect (FAME); during trial;
Newly Discovered 2) Newly Discovered
Evidence. Evidence.
Reconsideration
Award of excessive Errors of law in the
damages; judgment;
Insufficiency of Errors of fact in the
evidence; judgment.
Decision or final order
is contrary to law.
7.L.3. Requisites Before a New Trial may
be Granted on Ground of Newly-
Discovered Evidence (Rule 121, Sec. 4)
1) It must be in writing.
2) It must be filed with the court.
3) It must state the grounds on which it is
based.
4) If the motion for new trial is based on newly
discovered evidence, it must be supported
by the affidavits of the witness by whom
such evidence is expected to be given, or
duly authenticated copies of documents
which it is proposed to introduce in
evidence.
5) Notice of the motion for new trial or
reconsideration shall be given to the fiscal.
 While the rule requires that an affidavit of
merits be attached to support a motion for
new trial based on newly discovered
evidence, yet the defect of lack of it may be
cured by testimony under oath of the
defendant at the hearing of the motion
(Paredes vs. Borja, 3 SCRA 495).
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7.L.4. Effects of Granting a New Trial Or
Reconsideration (Rule 121, Sec. 6)
When a new trial is granted on the ground of:
1) Errors of law or irregularities committed
during the trial – all proceedings and
evidence not affected by the commission of
such errors and irregularities shall stand,
BUT those affected thereby shall be set
aside and taken anew. The court may, in
the interest of justice, allow the introduction
of additional evidence.
2) Newly discovered evidence – the evidence
already taken 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
3) In all cases, when the court grants new trial
or reconsideration, the original judgment
shall be set aside and a new judgment
rendered accordingly.
4) The effect of the granting of a new trial is
not to acquit the accused of the crime of
which the judgment finds him guilty, but
precisely to set aside said judgment so that
the case may be tried de novo as if no trial
had been conducted before.
 An error or mistake committed by a counsel
in the course of judicial proceedings is not a
ground for new trial. (Briones vs. People, G.R.
No. 156009, June 5, 2009)
 To justify a new trial or setting aside of the
judgment of conviction on the basis of such
evidence, it must be shown that the
evidence was "newly discovered" pursuant
to Section 2, 10, Rule 121 of the Revised
Rules of Criminal Procedure, as amended.
Evidence, to be considered newly
discovered, must be one that could not, by
the exercise of due diligence, have been
discovered before the trial in the court
below. Movant failed to show that the
defense exerted efforts during the trial to
secure testimonies from police officers like
Jurado, or other persons involved in the
investigation, who questioned or objected to
the apprehension of the accused in this
case. Hence, the belatedly executed affidavit
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of Jurado does not qualify as newly Motion for New Trial Motion for New Trial
discovered evidence that will justify re- in Criminal Cases in Civil Cases
opening of the trial and/or vacating the the damages awarded
judgment. In any case, we have ruled that are excessive
whatever flaw that may have initially errors of law or fact in
the evidence is
the judgment, which
attended the out-of-court identification of insufficient to justify the
requires no further
the accused, the same was cured when all decision or final order
proceedings.
the accused-appellants were positively the decision or final
identified by the prosecution eyewitness order is contrary to law
during the trial. (Lumanog vs. People, G.R. No.
182555, G.R. No. 185123, G.R. No. 187745, 7.L.5. Application of Neypes Doctrine In
September 7, 2010) Criminal Cases
 Unlike the rule in Civil Cases, the  If the motion is denied, the movants has a
remedy of the aggrieved party being fresh period of 15 days from receipt or
appeal in due time, such an order notice of the order denying or dismissing the
rendered in Criminal Cases is also motion for reconsideration within which to
interlocutory BUT is controllable by file a notice to appeal.
certiorari or prohibition at the instance
of the prosecution, as the new trial  This new period becomes significant if either
might result in a judgement of acquittal a motion for reconsideration or a motion for
from which the prosecution can no new trial has been filed but was denied or
longer appeal (People vs. Bocar, supra; dismissed. This fresh period rule applies only
People et al. vs. CA L-45364, August 6, to Rule 41 governing appeals from the RTC
1979) but also to Rule 40 governing appeals from
MTC to RTC, Rule 42 on petitions for review
 In trial courts, a second motion for from the RTC to the CA, Rule 43 on appeal
reconsideration of a final order or from quasi-judicial agencies to the CA, and
judgement is not allowed (Par. 4, Interim Rule 45 governing appeals by certiorari to
Rules and Guidelines). This rule has been the SC. Accordingly, this rule was adopted
adopted in civil actions (Sec. 5, Rule 37). In to standardize the appeal periods provided
cases covered by the Rules on Summary in the Rules to afford fair opportunity to
Procedure, a motion for reconsideration is review the case and, in the process,
prohibited (Sec. 15 [c]). minimize errors of judgment. Obviously, the
new 15 day period may be availed of only if
Motion for New Trial Motion for New Trial
either motion is filed; otherwise, the
in Criminal Cases in Civil Cases
FAME, which ordinary
decision becomes final and executory after
The errors of law or the lapse of the original appeal period
prudence could not
irregularities prejudicial provided in Rule 41 (Neypes vs. CA, GR
have guarded against
to the substantial rights 141524, September 14, 2005). The Neypes
and by reason of which
of the accused have been
such aggrieved party ruling shall not be applied where no motion
committed during the
has probably been for new trial or motion for reconsideration
trial
impaired in his rights has been filed in which case the 15-day
The new and material period shall run from notice of the
newly discovered
evidence has been judgment.
evidence, which he
discovered which the
could not, with
accused could not with
reasonable diligence, 7.M. APPEALS (Rule 122-125)
reasonable diligence have
have discovered and
discovered and produced
produced at the trial, Who may appeal (Rule 122, Sec. 1)
at the trial and which if
and which if presented
introduced and admitted
would probably alter the
would probably change
result
the judgment

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Any party may appeal from judgment or final
order, unless the accused will be placed in
double jeopardy.
Appeal – a proceeding for review by which the
whole case is transferred to a higher court for a
final determination.
Final Judgment – a judgment which would
become final if no appeal is taken.
Final Order – one which disposes of the whole
subject matte or terminates a particular
proceeding or action, leaving nothing to be done
but to enforce by execution of what has been
determined.
Interlocutory Order – does not dispose of a
case completely, but leaves something more to
be done on the merits.
 Sections 2 and 3, Rule 122 of the Revised
Rules of Criminal Procedure lay down the
rules on where, how and when appeal is
taken. Consequently, the disallowance of
the notice of appeal signifies the
disallowance of the appeal itself. A petition
for review under Rule 45 of the Rules of
Court is a mode of appeal of a lower court‘s
decision or final order direct to the Supreme
Court. However, the questioned Order
denying her notice of appeal is not a
decision or final order from which an appeal
may be taken. The Rules of Court
specifically provides that no appeal shall be
taken from an order disallowing or
dismissing an appeal. Rather, the aggrieved
party can elevate the matter through a
special civil action under Rule 65. Thus, in
availing of the wrong mode of appeal in this
petition under Rule 45 instead of the
appropriate remedy of Rule 65, the petition
merits an outright dismissal. (Macapagal vs.
People, G.R. No. 193217, February 26, 2014)
7.M.1. Effect of an Appeal
An appeal in a criminal case opens the whole
case for review and this includes the review of
the penalty, indemnity, and the damages
involved. Consequently, on appeal, the
appellate court may increase the penalty,
indemnity, or the damages awarded by the trial
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court, although the offended party had not
appealed from said award, and the party who
sought a review of the decision was the
accused.
 An appeal throws open the entire case for
review and may result in the increase of the
penalty imposed by the trial court. (Mercado
vs. People, G.R. No. 149375, November 26,
2002; People vs. Morales, G.R. No. 172873,
March 19, 2010)
Instances when appeal does not put the
accused in double jeopardy
1) If the dismissal is made upon motion, or
with the express consent of the accused;
2) If the dismissal is not an acquittal or based
upon consideration of the evidence or of the
merits of the case;
3) If the question to be passed upon by the
appellate court is purely legal so that the
case should be remanded to the court of
origin for it to determine the guilt or
innocence of the accused.
General Rule: A private prosecutor in a
criminal case has no authority to act for the
People of the Philippines before a court on
appeal. It is the government‘s counsel, the
SolGen, who appears in criminal cases or their
incidents before the SC. At the very least, the
Provincial fiscal himself, with the conformity of
the Solicitor General shall act for the People of
the Philippines.
Exception: The civil award in a criminal case
may be appealed by the private prosecutor on
behalf of the offended party or his successors.
7.M.2. Where to Appeal (Rule 122, Sec. 2)
a) RTC – In cases decided by the MeTC,
MTCC, MTC, MCTC,
b) CA or SC – decisions by the RTC, in the
proper cases provided by law
c) SC – in cases decided by the CA and the
Sandiganbayan.
7.M.3. How Appeal Taken (Rule 122, Sec. 3)
Appeal to the RTC, or to the CA in cases decided
by the RTC in exercise of its original jurisdiction

a) By notice of appeal;
b) Filed with the court which rendered the
judgment or final order appealed from; and
c) By serving a copy thereof to the adverse
party.
 Appeal to the CA in cases decided by
the RTC in the exercise of its appellate
jurisdiction shall be by petition for
review under Rule 42.
 Appeal in cases where the penalty
imposed by the RTC is reclusion
perpetua, life imprisonment or where a
lesser penalty is imposed 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 –
a) By notice of appeal to the CA;
b) Filed with the court which rendered
the judgment or final order
appealed from; and
c) By serving a copy thereof to the
adverse party.
Note: Appeals from the Sandiganbayan to
the Supreme Court on pure questions of
law, except cases where the penalty
imposed is reclusion perpetua, life
imprisonment or death shall be made by
Petition for Review on Certiorari.
Service of Notice of Appeal may be made
(Rule 122, Sec. 4)
1. Upon the adverse party or his counsel;
2. Registered mail; or
3. By substituted service.
Waiver of notice (Rule 122, Sec. 5)
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.
When appeal to be taken (Rule 122, Sec. 6)
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An appeal must be taken within 15 days from
promulgation of the judgment or from notice of
the final order appealed from.
The period for appeal is interrupted from the
time the motion for new trial is filed up to the
receipt by the accused of the notice of the order
―overruling the motion.‖
Appeal to the Regional Trial Courts (Rule
122, Sec. 9)
Transmittal of Original Records Within 5
days from perfection of the appeal, the clerk of
court shall transmit the original record to the
appropriate Regional Trial Court.
Notice to the Parties 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.
Submission of Memoranda or Briefs Within
15 days from receipt of said notice, the parties
may submit memoranda or briefs, or may be
required by the RTC to do so.
Decision - After the submission of such
memoranda or briefs, or upon the expiration of
the period to file the same, the RTC shall decide
the case on the basis of the entire record of the
case and of such memoranda or briefs as may
have been filed.
7.M.4. Effect of Appeal by any of Several
Accused (Rule 122, Sec. 11)
 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.
 The appeal of the offended party from the
civil aspect shall not affect the criminal
aspect of the judgment or order appealed
from.
 Upon perfection of the appeal, the execution
of the judgment or final order appealed
from shall be stayed as to the appealing
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party. (People vs. Mateo, G.R. Nos. 147678-87,
July 7, 2004)
 While the Fundamental Law requires a
mandatory review by the Supreme Court of
cases where the penalty imposed is
reclusion perpetua, life imprisonment, or
death, nowhere, however, has it proscribed
an intermediate review. If only to ensure
utmost circumspection before the penalty of
death, reclusion perpetua, or life
imprisonment is imposed, the Court now
deems it wise and compelling to provide in
these cases a review by the Court of
Appeals before the case is elevated to the
Supreme Court. Where life and liberty are at
stake, all possible avenues to determine his
guilt or innocence must be accorded an
accused, and no care in the evaluation of
the facts can ever be overdone. A prior
determination by the Court of Appeals on,
particularly, the factual issues, would
minimize the possibility of an error of
judgment. If the Court of Appeals should
affirm the penalty of death, reclusion
perpetua, or life imprisonment, it could then
render judgment imposing the
corresponding penalty as the circumstances
so warrant, refrain from entering judgment
and elevate the entire records of the case to
the Supreme Court for its final disposition.
(People vs. Mateo, supra)
Withdrawal of appeal
The RTC, MeTC, MCTC, MTC, MTCC, 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. This is
notwithstanding the perfection of the appeal.
The RTC may, in its discretion allow the
appellant from the judgment of a lower court to
withdraw his appeal, provided, a motion to that
effect is filed before the rendition of the
judgment in the case on appeal, in which case
the judgment of the court of origin shall become
final and the case shall be remanded to the
latter court for the execution of judgment.
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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.
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.
7.M.5. Grounds for Dismissal of Appeal
(Rule 124 Sec. 8)
 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.
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 remedies
within fifteen (15) days from notice. (People
vs. Taruc, G.R. No. 185202, February 18, 2009)

Procedure in the Municipal Trial Courts
(Rule 123)
Uniform procedure
The procedure to be observed in the MeTC, MTC
and MCTC shall be the same as in the RTCs,
except where a particular provision applies only
to either of said courts and in criminal cases
governed by the Revised Rule on Summary
Procedure.
Procedure in the court of appeals (Rule 124)
Appointment of counsel de oficio for the
accused (Rule 124, Sec. 2)
The clerk of court of the Court of Appeals shall
designate a counsel de officio if it appears from
the record of the case as transmitted that:
1) The accused is confined in prison;
2) The accused is without counsel de parte on
appeal; or
3) The accused has signed the notice of appeal
himself.
 An appellant who is not confined in
prison may, upon request, be assigned a
counsel de officio within 10 days from
receipt of the notice to file brief and he
establishes his right thereto.
Dismissal of appeal for abandonment or
failure to prosecute grounds (Rule 124, Sec.
8)
a) Appellant fails to file his brief within the time
prescribed by this Rule, except where the
appellant is represented by a counsel de
officio.
b) Appellant escapes from prison or
confinement,
c) Appellant jumps bail; or
d) Appellant flees to a foreign country during
the pendency of the appeal.
 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
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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 remedies
within fifteen (15) days from notice. (People
vs. Taruc, G.R. No. 185202, February 18, 2009)
Judgment not to be reversed or modified
except for substantial error (Rule 124, Sec.
10)
No judgment shall be reversed or modified
unless, the Court of Appeals, after an
examination of the record and of the evidence
adduced, is of the opinion that an error was
committed which injuriously affected the
substantial rights of the appellant.
Scope of judgment (Rule 124, Sec. 11)
The Court of Appeals may:
1) Reverse, affirm or modify the judgment;
2) Increase or reduce the penalty imposed by
the trial court;
3) Remand the case to the Regional Trial Court
for new trial or retrial, or
4) Dismiss the case.
Other powers of the court of appeals (Rule
124, Sec. 12)
a) Try cases and conduct hearings.
b) Receive evidence.
c) Perform all acts necessary to resolve factual
issues raised in cases falling under its
original and appellate jurisdiction.
d) Grant and conduct new trials or further
proceedings.
Certification or appeal of case to the
Supreme Court (Rule 124, Sec. 13)
Where the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty it shall –
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1) Render judgment; and
2) Enter judgment imposing such penalty.
Such judgment may be appealed to the SC by
notice of appeal filed with the CA.
Period for filing Motion for New Trial (Rule
124, Sec. 14)
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.
Ground: Newly discovered evidence material to
his defense.
If granted, the CA may conduct the new trial or
may refer it to the court of origin.
Motion for Reconsideration (Rule 124, Sec.
16)
A motion for reconsideration shall be filed:
1) Within 15 days from notice of the decision
or final order of the Court of Appeals
2) With copies thereof served upon the adverse
party,
3) Setting forth the grounds in support thereof.
 The mittimus shall be stayed during the
pendency of the motion for
reconsideration.
 No party shall be allowed a second
motion for reconsideration of a
judgment or final order.
 General rule, the statutory requirement that
when no motion for reconsideration is filed
within the reglementary period, the decision
attains finality and becomes executory in
due course must be strictly enforced as they
are considered indispensable interdictions
against needless delays and for orderly
discharge of judicial business.
The purposes for such statutory requirement
are two fold:
(1) to avoid delay in the administration of
justice and thus, procedurally, to make
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orderly the discharge of judicial
business; and
(2) to put an end to judicial controversies,
at the risk of occasional errors, which
are precisely why courts exist.
Controversies cannot drag on indefinitely.
The rights and obligations of every litigant
must not hang in suspense for an indefinite
period of time.
In exceptional cases, substantial justice and
equity considerations warrant the giving of
due course to an appeal by suspending the
enforcement of statutory and mandatory
rules of procedure. Certain elements are
considered for the appeal to be given due
course, such as:
(1) The existence of special or compelling
circumstances;
(2) The merits of the case;
(3) A cause not entirely attributable to the
fault or negligence of the party favored
by the suspension of the rules,
(4) Lack of any showing that the review
sought is merely frivolous and dilatory,
and
(5) The other party will not be unduly
prejudiced thereby. (Guasch vs. Dela Cruz,
G.R. No. 176015, June 16, 2009)
Probation
 The Probation Law never intended to deny
an accused his right to probation through no
fault of his. The underlying philosophy of
probation is one of liberality towards the
accused. Such philosophy is not served by a
harsh and stringent interpretation of the
statutory provisions. (Colinares vs. People,
G.R. No. 182748, December 13, 2011)
 Facts: The accused was charged with
frustrated homicide and was found guilty
thereof and sentenced to suffer
imprisonment from 2 years and 4 months of
prision correccional, as minimum, to 6 years
and 1 day of prision mayor, as maximum.
Since the maximum probationable
imprisonment under the law was only up to
6 years, accused did not qualify for
probation. Thus, he appealed to the CA

invoking self-defense and alternatively,
seeking conviction for the lesser crime of
attempted homicide with the consequent
reduction of the penalty imposed on him.
The CA affirmed the RTC decision. Accused
then went to the SC, which found that he
was guilty of the lesser crime of attempted
homicide with the imposable penalty of
imprisonment of 4 months of arresto mayor,
as minimum, to 2 years and 4 months of
prision correccional, as maximum.
Issue: Whether he could still avail of
probation in view of the reduction of the
penalty.
Ruling: The Court‘s finding that Arnel was
guilty, not of frustrated homicide but only of
attempted homicide, is an original conviction
that for the first time imposes on him a
probationable penalty. Had the RTC done
him right from the start, it would have found
him guilty of the correct offense and
imposed on him the right penalty of 2 years
and 4 months as maximum. This would have
afforded the accused the right to apply for
probation. (Colinares vs. People, supra)
Procedure in the Supreme Court (Rule 125)
Uniform procedure (Rule 125, Sec. 1)
General Rule: The procedure in the SC in
original and in appealed cases shall be the same
as in the CA.
Exceptions: If otherwise provided by-
1) The Constitution; or
2) The law.
Review of decisions of the court of appeals
(Rule 125, Sec. 2)
The procedure for the review by the Supreme
Court of decisions in criminal cases rendered by
the Court of Appeals shall be the same as in civil
cases.
Decision if opinion is equally divided (Rule
125, Sec. 3)
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When the Supreme Court en banc is equally
divided in opinion or the necessary majority
cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon; and
If no decision is reached after re-deliberation,
the judgment of conviction of lower court shall
be reversed and the accused acquitted.
7.N. SEARCH AND SEIZURE (Rule 126)
Search warrant is an order in writing issued in
the name of the People of the Philippines,
signed by a judge and directed to a peace
officer, commanding him to search for personal
property described therein and bring it before
the court. (Rule 126, Sec. 1)
Search warrants are in the nature of criminal
process and may be invoked only in furtherance
of public prosecutions. They are also in the
nature of an interlocutory character, because it
leaves something more to be done, the
determination of the guilt of the accused.
7.N.1. Nature of Search Warrant
a) Search warrants are in the nature of criminal
process akin to a writ of discovery and may
be invoked only in furtherance of public
prosecutions.
b) Search warrants have no relation to civil
process or trials; and
c) They are not available to individuals in the
course of civil proceedings.
d) It is not for the maintenance of any mere
private right.
e) It is interlocutory in character – it leaves
something more to be done, the
determination of the guilt of the accused.
7.N.2. Distinguish From Warrant of Arrest
Warrant of Arrest Search Warrant
Preliminary examination leads to its issuance or non-
issuance
Both rendered by the judge
Arrest is the taking of a A search warrant is an
person into custody in order in writing issued
order that he may be in the name of the
bound to answer for the People of the
commission of an offense Philippines, signed by a
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Warrant of Arrest Search Warrant

judge and directed to a
peace officer,
commanding him to
search for personal
property described
therein and bring it
before the court.
For the purpose of
For the purpose of taking
taking personal
a person into the custody
property* into the
of the law
custody of the law
The judge is required to
conduct an investigation The court must always
or examination but the conduct searching
court may dispense with questions upon the
the personal examination complainant and his
and may simply rely on witnesses
the report of the fiscal
Should be executed
An arrest may be made
only on daytime unless
on any day and at any
otherwise stated in the
time of the day or night
warrant itself**
Only good for 10 days;
whether implemented
Imprescriptible; until and
or not, the search
unless implemented
warrant dies on the
11th day***
The things to be seized
As long as the person is
and the person to be
identifiable, you can
searched must be
already implement the
specifically
warrant lawfully.
identified****
The personal property here is not any kind of
property. 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.
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.
Section 10. Validity of search warrant. — A
search warrant shall be valid for ten (10) days
from its date. Thereafter it shall be void.
Those outside the identification are beyond the
search.
7.N.3. Application for Search Warrant,
Where Filed (Rule 126, Sec. 2)
1) Any court within whose territorial jurisdiction
a crime was committed.
2) For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if
the place of the commission of the crime is
known, or any court within the judicial
region where the warrant shall be enforced.
3) If the criminal action has already been filed,
the application shall only be made in the
court where the criminal action is pending.
 If the accused committed a continuing
offense, a search warrant may be applied
for in any court where any element of the
alleged offense was committed. (Sony
Computer Entertainment, Inc. vs. Evergreen
Incorporated G.R. No. 161823 March 22, 2007)
Personal Properties which may be Covered
by a Search Warrant (Rule 126, Sec. 3)
1) Property subject of the offense;
2) Property stolen or embezzled and other
proceeds, or fruits of the offense;
3) Property used or intended to be used as the
means of committing an offense.
Requisites for issuing search warrant (Rule
126, Sec. 3)
a) The warrant must be issued upon probable
cause;
b) Probable cause must be determined
personally by the judge;
c) The judge must have personally examined,
under oath and affirmation, and in the form
of searching questions and answers, the
applicant and his witnesses;
d) The warrant must particularly describe the
place to be searched and the things to be
seized which may be anywhere in the
Philippines;
e) The warrant must be issued for one specific
purpose or in connection with one specific
offense.

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7.N.4. Probable Cause
Such fact and circumstances which would lead a
reasonably discreet and prudent man to believe
that the offense charged has been committed
and that the objects sought in connection with
the offense are in the place sought to be
searched.
Basis of probable cause
The basis must be the personal knowledge of
the complainant or the witnesses he may
produce and not based on mere hearsay. The
test of sufficiency of a deposition or affidavit is
whether it has been drawn in a manner that
perjury could be charged thereon and the affiant
be held liable for damaged caused.
Note: Mere affidavits of the complainant and his
witnesses are not sufficient. The judge has to
take depositions ion writing of the complainant
and the witnesses and to attach them to the
record. (Mata vs. Bayona, GR. No. L-50620, March
26, 1984)
Factors in determination of probable cause
 Time of the application in relation to the
alleged offense committed. The nearer the
time at which the observation of the offense
is alleged to have been made, the more
reasonable the conclusion of establishment
of probable cause (Asian Surety insurance vs.
Herrera, GR No. L-25232, Dec. 20, 1973);
 There must be competent proof of particular
acts or specific omissions but only the best
evidence under the circumstances is
required. (People vs. Judge Estrada, GR. No.
124461, September 25, 1998).
Who determines probable cause?
Probable cause must be determined personally
by a judge. (Art. 3, Sec. 2, 1987 Constitution)
Exception: Deportation of illegal and
undesirable aliens, whom the President or the
Commissioner of Immigration may order
arrested, following a final order of deportation,
for the purpose of deportation. (Harvey vs.
Defensor-Santiago, GR No. 82544, June 28, 1988).
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“Multi-factor balancing test” in
determining probable cause – one which
requires the officer to weigh the manner and
intensity of the interference on the right of the
people, the gravity of the crime committed and
the circumstances attending the incident.
7.N.5. Personal Examination by the Judge
of the Applicant and His Witnesses
 The judge, before issuing the search
warrant must personally examine on oath or
affirmation the complainant and any
witnesses he may produce. This examination
is necessary in order to ascertain the
existence of probable cause, the
determination of which calls for the exercise
of judgment after a judicial appraisal of facts
which may not be delegated.
 The examination of the complainant and his
witnesses must be conducted in the form of
searching questions and answer which will
have a tendency to show the commission of
a crime and the perpetrator thereof.
7.N.6. Particularity of Place to be Searched
and Things to be Seized
Purpose: To leave the officers of the law with
no discretion regarding what articles they shall
seize, to the end that unreasonable searches
and seizures may not be made – that abuses
may not be committed. (Stonehill vs. Diokno GR
No. L-19550, June 19, 1967)
Test to determine particularity
1) When the description therein is as specific
as the circumstances will ordinarily allow ;
2) When the description express as a
conclusion of fact not of law, which the
warrant officer may be guided in making the
search and seizure;
3) When the things described are limited to
those which bear direct relation to the
offense for which the warrant is being
issued.
 A description of the place to be
searched is sufficient if the officer
serving the warrant can, with
reasonable effort, ascertain and identify
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the place intended and distinguish it
from other places in the community. A
designation or description that points
out the place to be searched to the
exclusion of all others, and on inquiry
unerringly leads the peace officers to it,
satisfies the constitutional requirement
of definiteness. (People vs. Tuan, G.R. No.
176066, August 11, 2010)
7.N.7. 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 embazzeled and other proceeds or
fruits of the offense,
c) The means used or intended to be used for
committing an offense.
Examination of complainant; record (Rule
126, Sec. 5)
Before issuing the warrant;
1) The judge must personally examine in the
form of searching questions and answers
the complainant and the witnesses he may
produce;
2) In writing and under oath;
3) On facts personally known to them; and
4) Attach to the record their sworn statements,
together with the affidavits submitted.
Note: An application for a search warrant is
heard ex-parte. The searching questions
propounded to the applicant of the search
warrant and his witnesses must depend to a
large extent upon the discretion of the judge,
just as long as the answers establish a
reasonable ground to believe the commission of
a specific offense and that the applicant is one
authorized by law, and said answers particularly
describe with certainty the place to be searched
and the persons or things to be seized.
Issuance and form of search warrant (Rule
126, Sec. 6)
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
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substantially in the form prescribed by the
Rules.
Knock and Announce Principle
Generally, officers implementing a search
warrant must:
1) Announce their presence,
2) Identify themselves to the accused and to
persons who rightfully have possession of
the premises to be searched, and
3) Show to them the search warrant to be
implemented by them and explain to them
said warrant in a language/dialect known
and understood by them.
When unannounced intrusion is
permissible:
1) The person whose premises or is entitled to
the possession thereof refuses, upon
demand to open it;
2) When such person in the premises already
knew of the identity of the officers and of
their authority;
3) When the officers are justified, in the honest
belief that there is an imminent peril to life
and limb; and
4) When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officer to believe that an escape or the
destruction of evidence is imminent (Vallejo
vs. CA, April 14, 2004)
Exclusionary Rule – any evidence obtained
through unreasonable searches and seizures
shall be inadmissible for any purpose in any
proceeding.
Right to break door or window to effect
search (Rule 126, Sec. 7)
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.

Search of house, room, or premise to be
made in presence of two witnesses (Rule
126, Sec. 8)
No search of a house, room, or any other
premises shall be made except in the presence
of:
1) The lawful occupant thereof;
2) Any member of his family; or
3) In the absence of the latter, two witnesses
of sufficient age and discretion residing in
the same locality.
Time of making search (Rule 126, Sec. 9)
General Rule: The warrant must direct that it
be served in the daytime.
Exceptions: A direction may be inserted that
the warrant may be served at any time of the
day or night, when the affidavit asserts that the
property is:
1) On the person; or
2) In the place ordered to be searched.
Validity of search warrant (Rule 126, Sec. 10)
A search warrant shall be valid for 10 days from
its date. Thereafter, it shall be void.
General Rule: A search warrant can be used
only once, thereafter, it becomes functus oficio.
Exception: When the search conducted on one
day was interrupted, in which case, the same
may be continued under the same warrant the
following day if not beyond the 10-day period
(Uy Kheytin vs. Villareal, 42 Phil. 886).
Receipt for the property seized (Rule 126,
Sec. 11)
The officer seizing the property under the
warrant must:
a) Give a detailed receipt for the same to the
lawful occupant of the premises in whose
presence the search and seizure were made,
or
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b) In the absence of such occupant, must, in
the presence of at least 2 witnesses of
sufficient age and discretion residing in the
same locality, leave a receipt in the place in
which he found the seized property.
Delivery of property and inventory thereof
to court; return and proceedings thereon
(Rule 126, Sec. 12)
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.
10 days after issuance of the search warrant,
the issuing judge shall ascertain if the return has
been made.
If None, he shall:
a) Summon the person to whom the warrant
was issued; and
b) Require him to explain why no return was
made. Arellano law
If the return has been made, the judge
shall:
a) Ascertain whether Section 11 of this Rule
has been complied with; and
b) Require that the property seized be
delivered to him. The judge shall see to it
that the above subsection hereof has been
complied with.
 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 rule shall constitute
contempt of court.
 While, under Sec. 9, a search warrant
has a validity of 10 days, nevertheless it
cannot be used every day of said period
and once articles have already been
seized under said warrant, it cannot be
used again for another search and
seizure, except when the search
conducted on one day was interrupted,
in which case the same may be
continued under the same warrant the
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following day if not beyond the 10-day
period.
7.N.8. Exceptions to Search Warrant
Requirements
1) When the owner of the premises waives his
right against such incursion;
2) When the search is incidental to a lawful
arrest;
3) When it is made on vessels and aircraft,
such as for violation of customs laws;
4) When it is made on automobiles or motor
vehicles generally for the purpose of
preventing violations of smuggling or
immigration laws;
5) When it involves prohibited articles in plain
view; or
6) In cases of inspection of buildings and other
premises for the enforcement of fire,
sanitary and building regulations (People vs.
Rodriguez, G.R. No. 95902, February 4, 1992).
Plain view doctrine – objects within the sight
of an officer who has the right to be in a
position to have that view are subject to seizure
and may be presented as evidence (open to the
eye and hand).
Elements:
1) A prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
2) The evidence was inadvertently discovered
by the police who have the right to be
where they are;
3) The evidence must be immediately
apparent;
4) Plain view justified mere seizure of evidence
without further search (Rosario v. People, 358
SCRA 373).
 The Tariff and Customs Code does not
require a search warrant for purposes of
enforcing customs and tariff laws.
Search Incident to Lawful Arrest (Rule 126,
Sec. 13)
A person lawfully arrested may, without search
warrant, be searched:
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a) For dangerous weapons; or
b) Anything which may have been used or
which may constitute as proof of the
commission of an offense.
 When the search is incidental to a lawful
arrest, the scope thereof should be
limited to the area within which the
arrestee can reach for a weapon or for
evidence in order to destroy it.
 In the latter case, the person making
the arrest may take from the arrestee
any property which was the fruit or
proceeds thereof or, which may furnish
the arrestee with a means of committing
violence or effecting an escape or which
may be used as evidence at the trial of
the case.
Consented Search
Elements of a valid consent search
a) Consent cannot be presumed simply
because the accused failed to object to the
search. To constitute a waiver, it must
appear:
b) The right exists;
c) The person involved had knowledge, actual
or constructive, of the existence of such
rights;
d) Actual intention to relinquish such rights.
(People vs. Burgos, GR. No. 92739, August. 2,
1991).
Search of Moving Vehicle
Search and seizure without warrant include that
of vessels and aircrafts for violation of the
customs laws, including violations of forestry
laws. These are the traditional exceptions to the
constitutional requirement of a search warrant.
The reason for this is the ease of moving the
vessel/aircraft out of the locality or jurisdiction
where the warrant was secured. In such a case,
it would not be practical to acquire a warrant
before the search and seizure could be made.
However, for the warrantless search and seizure
to be valid, the officers conducting it should
have reasonable or probable cause to believe,
before the search is conducted, that they will

find the instrumentality or evidence pertaining to
a crime, in the vehicle to be searched.
 Over the years, the rules governing search
and seizure have been steadily liberalized
whenever a moving vehicle is the object of
the search on the basis of practicality. This
is so considering that before a warrant could
be obtained, the place, things and persons
to be searched must be described to the
satisfaction of the issuing judge – a
requirement which borders on the
impossible in instances where moving
vehicle is used to transport contraband from
one place to another with impunity. This
exception is easy to understand. A search
warrant may readily be obtained when the
search is made in a store, dwelling house or
other immobile structure. But it is
impracticable to obtain a warrant when the
search is conducted on a mobile ship, on an
aircraft, or in other motor vehicles since
they can quickly be moved out of the locality
or jurisdiction where the warrant must be
sought. (People vs. Mariacos, | G.R. No. 188611,
June 16, 2010)
Check Points: Body Checks in Airport
 A warrantless search conducted at police or
military checkpoints has been upheld for as
long as the vehicle is neither searched nor
its occupants subjected to body search, and
the inspection of the vehicle is merely
limited to visual search (Aniag, Jr. vs.
COMELEC, 237 SCRA 424)
Plain View Situation
Requisites of Plain View:
a) Prior justification of intrusion;
b) Inadvertent discovery of the evidence;
c) Immediate apparent illegality of the
evidence. (People vs. Musa, G.R. No. 95329,
January 27, 1993)
 Objects falling in plain view of an officer
who has a right to be in a position to have
that view are subject to seizure even
without a search warrant and may be
introduced in evidence. The "plain view"
doctrine applies when the following
requisites concur: (a) the law enforcement
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officer in search of the evidence has a prior
justification for an intrusion or is in a
position from which he can view a
particular area; (b) the discovery of
evidence in plain view is inadvertent; (c) it
is immediately apparent to the officer that
the item he observes may be evidence of a
crime, contraband or otherwise subject to
seizure. The law enforcement officer must
lawfully make an initial intrusion or properly
be in a position from which he can
particularly view the area. In the course of
such lawful intrusion, he came
inadvertently across a piece of evidence
incriminating the accused. The object must
be open to eye and hand and its discovery
inadvertent. [Under Section 21, paragraphs 1
and 2, Article II of RA No. 9165; and the
implementing provision of Section 21 (a), Article
II of the Implementing Rules and Regulations
(IRR) of RA No. 9165], the failure of the law
enforcers to comply strictly with the rule is
not fatal. It does not render petitioner‘s
arrest illegal nor the evidence adduced
against him inadmissible. What is essential
is "the preservation of the integrity and the
evidentiary value of the seized items, as
the same would be utilized in the
determination of the guilt or innocence of
the accused." (Miclat Jr vs. People, G.R. No.
176077, August 31, 2011)
Stop and Frisk Situation
 Its object is either to determine the identity
of a suspicious individual or to maintain the
status quo momentarily while the police
officer seeks to obtain more information.
The officer may search the outer clothing of
the person in an attempt to discover
weapons which might be used to assault
him. (Terry vs. Ohio, 392 U.S. 1, Manalili vs. CA,
GR No. 113447, October 9, 1997).
 The remedy for questioning the validity
of a search warrant can only be sought
in the court that issued it, not in the
sala of another judge of concurrent
jurisdiction. Except where there is
already a case filed, the latter shall
acquire jurisdiction to the exclusion of
other courts.
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 What is, therefore, essential is that a
genuine reason must exist, in light of the
police officer‘s experience and surrounding
conditions, to warrant the belief that the
person who manifests unusual suspicious
conduct has weapons or contraband
concealed about him. Such a "stop-and-
frisk" practice serves a dual purpose: (1) the
general interest of effective crime
prevention and detection, which underlies
the recognition that a police officer may,
under appropriate circumstances and in an
appropriate manner, approach a person for
purposes of investigating possible criminal
behavior even without probable cause; and
(2) the more pressing interest of safety and
self-preservation which permit the police
officer to take steps to assure himself that
the person with whom he deals is not armed
with a deadly weapon that could
unexpectedly and fatally be used against the
police officer. (Esquillo vs. People, G.R. No.
182010, August 25, 2010)
Enforcement of Customs Law
The Collector of Customs is authorized to
enforce customs duties and tariff laws following
the laws governing it. Custom laws authorize
persons with police authority under Section 2203
of the Tariff and Customs Code to enter, pass
through or search any land, enclosure,
warehouse, store or building not being a
dwelling house; and also to inspect search and
examine any vessel or aircraft and any trunk,
package, box or envelope or any person on
board, or to stop and search and examine any
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines.
7.N.9. Remedies to an unlawful search and
seizure
a) A motion to quash the search warrant;
b) A motion to suppress as evidence the
objects illegally taken;
c) Where the search warrant is a patent nullity,
certiorari lies to nullify the same;
d) Replevin, if the objects are legally
possessed.
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Exclusionary Rule – any evidence obtained
through unreasonable searches and seizures
shall be inadmissible for any purpose in any
proceeding.
In what court may a motion to quash be
filed (Rule 126, Sec. 14)
Before the court that issued the warrant.
1) Under the Criminal Case Rule, all the
incidents arising from the Search Warrant
should be consolidated in the court where
the criminal case is pending;
2) Under the Alternative Remedy Rule, with
the court which issued the search warrant in
this motion, all grounds for objection
existent or available and known at the time
must be invoked, otherwise, they are
deemed waived.
7.O. PROVISIONAL REMEDIES IN
CRIMINAL CASES (Rule 127)
Availability of provisional remedies (Rule 127,
Sec. 1)
a) The provisional remedies under this rule are
proper only where the civil action for the
recovery of civil liability ex delicto has not
been expressly waived or the right to
institute such civil action separately is not
reserved in those cases where reservation
may be made.
b) The requisites and procedure for availing of
these provisional remedies shall be the
same as those for civil cases.
Attachment (Rule 127, Sec. 2)
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:
1) When the accused is about to abscond from
the Philippines.
2) When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public 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.
3) When the accused has concealed, removed,
or disposed of his property, or is about to do
so; and
4) When the accused resides outside the
Philippines.
Support in criminal cases: (Sec. 6, Rule 61,
1997)
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 there for
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.
7.O.1. Nature
These are remedies which the party litigants
may resort to for the preservation or protection
of their rights or interests during the pendency
of the action. In relation to criminal proceedings,
the provisional remedies under Rule 127 are
proper only where the civil action for the
recovery of civil liability ex delicto has not been
waived, or is not reserved when such
reservation of a separate action may be made.
7.O.2. Kinds of Provisional Remedies
a) Attachment;
b) Injunction;
c) Receivership;
d) Delivery of personal property;
e) Support pendente lite
Is a Petition for Relief from Judgment
under Rule 38 available in a criminal case?
In Hilario v. People, G.R. No. 161070, April 14,
2008, 551 SCRA 191, the accused unassisted by
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counsel filed a petition for relief from the
decision of the RTC convicting him of the crime
of homicide. According to his affidavit of merit,
at the time of the promulgation of the judgment,
he was already confined with the QC jail and
was directed to be committed to the National
Penitentiary in Muntinlupa. He further claimed
that he instructed his counsel to appeal the case
but learned that this was not done and the
decision then became final. The RTC denied the
petition. It was unconvinced that the accused
was prevented from filing a notice of appeal.
The CA denied the petition for certiorari filed by
the accused himself questioning the denial of
the petition for relief. The SC in this case
remanded the case to the trial court for the
proper determination of the merits of the
petition for relief from judgment. It held that in
criminal cases, the right of an accused to be
assisted by a member of the bar is immutable;
otherwise there would be a grave denial of due
process. Moreover, in all criminal prosecutions,
the accused shall have the right to appeal in the
manner prescribed by law. The appeal is an
essential part of the judicial system and the trial
courts are advised to proceed with caution so as
not to deprive a party of the right to appeal and
instructed that every party-litigant should be
afforded the amplest opportunity for the proper
and just disposition of his cause, freed from the
restraints of technicalities. While this right is
statutory, once it is granted by law, however, its
suppression would be a violation of a due
process, a right guaranteed by the Constitution.
8. EVIDENCE
It is the means sanctioned by the Rules of Court
of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Sec. 1, Rule 128)
Evidence also refers to the medium used to
prove the existence or nonexistence of a fact in
issue. (PRIMER REVIEWER ON REMEDIAL LAW, Vol. 2 3rd
(2015) Edition)
8.A. GENERAL PRINCIPLES
8.A.1. Concept of Evidence
It is the means sanctioned by the Rules of Court
ofascertaining in a judicial proceeding the truth
respecting a matter of fact. (Sec. 1, Rule 128)
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8.A.2. Scope of the Rules of Evidence 8.A.3. Evidence In Civil Versus Evidence In
Criminal Cases.
The rules apply only to judicial proceedings.
(Sec. 1, Rule 128) CIVIL CRIMINAL
Parties attend by accord Accused attend by
In what courts applicable. — These Rules shall compulsion
apply in all the courts, except as otherwise There is no presumption Presumption of
provided by the Supreme Court. (Sec 2, Rule 1) as to either party innocence attends to the
accused until the same
has been overcome by
The Rules of Court shall not apply to election
prima facie evidence of
cases, land registration, cadastral, naturalization guilt
and insolvency proceedings, and other cases,
except by analogy or in a suppletory character Generally, an offer to An offer to compromise
and whenever practicable and convenient. (Sec. compromise does not is an implied admission
4, Rule 1) amount to an admission of guilt.
of liability
 Prescinding from the above, the rule on Exception: Those
formal offer of evidence (Rule 132, §34) now involving criminal
being invoked by petitioner is clearly not negligence or allowed by
law
applicable to the present case involving a
No presumption of Presumption of
petition for naturalization. The only instance
innocence Innocence
when said rules may be applied by analogy Preponderance of Proof beyond reasonable
or suppletorily in such cases is when it is evidence doubt
"practicable and convenient." That is not the
case here, since reliance upon the
documents presented by the State for the 8.A.4. Proof versus Evidence
first time on appeal, in fact, appears to be
the more practical and convenient course of Evidence Distinguished From Proof
action considering that decisions in
naturalization proceedings are not covered EVIDENCE PROOF
by the rule on res judicata. Consequently, a The medium or means Effect and result of
final favorable judgment does not preclude of proving or disproving evidence.
the State from later on moving for a a fact Establishment of a fact
revocation of the grant of naturalization on by evidence.
the basis of the same documents. (Ong Chia The degree and quantity
vs. Republic of the Philippines, G.R. No. 127240, of evidence that
March 27, 2000) produces conviction.

 Well-settled is the rule that hearings and
resolutions of labor disputes are not
governed by the strict and technical rules of
evidence and procedure observed in the
regular courts of law. Technical rules of
procedure are not applicable in labor cases,
but may apply only by analogy or in a
suppletory character, for instance, when
there is a need to attain substantial justice
and an expeditious, practical and convenient
solution to a labor problem (Sime Darby
Employees Association vs. National Labor
Relations Commission, 510 SCRA 204, 2006)
8.A.5. Factum Probans Versus Factum
Probandum
Factum probandum is the ultimate fact or the
fact sought to be established; proposition to be
established, hypothetical, and that which one
party affirms and the other denies.
Factum probans is the evidentiary fact by
which the factum probandum is to be
established; material evidencing the proposition,
existent, and offered for the consideration of the
tribunal.

8.B. ADMISSIBILITY OF EVIDENCE

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8.B.1. Requisites for Admissibility of
Evidence
For evidence to be admissible, two elements
must concur:
1) The evidence must be relevant – it must
have such a relation to the fact in issue as
to induce belief in its existence or non-
existence.
2) The evidence must be competent – it must
neither be excluded by law nor by the rules.
NOTE: In our jurisdiction, there are two
additional elements: the evidence must be (1)
authenticated and (2) it must be offered.
Admissibility and Probative Value
 The admissibility of evidence should not be
confused with its probative value.
Admissibility refers to the question of
whether certain pieces of evidence are to be
considered at all, while probative value
refers to the question of whether the
admitted evidence proves an issue. Thus, a
particular item of evidence may be
admissible, but its evidentiary weight
depends on judicial evaluation within the
guidelines provided by the rules of evidence.
(Heirs of Sabanpan vs. Comorposa, G.R. No.
152807, August 12, 2003)
 There is no issue in the admissibility of the
subject sworn statement. However, the
admissibility of evidence should not be
equated with weight of evidence. The
admissibility of evidence depends on its
relevance and competence while the weight
of evidence pertains to evidence already
admitted and its tendency to convince and
persuade. Thus, a particular item of
evidence may be admissible, but its
evidentiary weight depends on judicial
evaluation within the guidelines provided by
the rules of evidence. (Tating vs. Marcella,
G.R. No. 155208, March 27, 2007)
Difference between admissibility and
credibility:
Admissibility of evidence is determined by the
concurrence of the two requisites of relevancy
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and competency; credibility is a matter for the
court to appreciate. (People v. Abellera, 47 Phil.
731)
Trial courts may allow a person to testify as a
witness upon a given matter because he is
competent but may thereafter decided whether
to believe or not to believe his testimony.
Credibility depends on the appreciation of his
testimony and arises from the brief conclusion of
the court that said witiness is telling the truth.
(Gonzales vs. Court of Appeals, G.R. No. L-
37453, May 25, 1979)
8.B.2. Relevance of Evidence and
Collateral Matters
Relevance means relation to the facts in issue
as to induce belief in its existence or non-
existence.
Competence means that the evidence is not
excluded by the law or the Rules of Court.
Evidence on Collateral Matters are allowed
only when it tends in any reasonable degree to
establish the probability or improbability of the
fact in issue. (Sec. 4, Rule 128)
8.B.3. Multiple Admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence should
be admitted for any or all the purposes for
which it is offered provided it satisfies all the
requirements of law for its admissibility therefor.
a) e.g., a testimony of a person may be part of
res gestae, declaration of interest or even a
dying declaration.
b) It must be established that an evidence shall
be used for more than one purpose. The
court will not take judicial notice thereof.
8.B.4. Conditional Admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received on the condition that the other facts
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will be proved thereafter, otherwise the
evidence given will be stricken out.
8.B.5 Curative Admissibility
Where improper evidence was admitted over the
objection of the opposing party, he should be
permitted to contradict it with similar improper
evidence. Otherwise it would result in disparity
of rulings to his prejudice.
 The right of a party to introduce
incompetent evidence in his behalf where
the court has admitted the same kind of
evidence adduced by the adverse party.
 It is an incompetent evidence which was
allowed and may be cured by a competent
or incompetent evidence.
 It will not apply where the evidence was
admitted without objection because of
waiver of the inadmissibility of the evidence.
 Where the objection was incorrectly
overruled, the court must allow the other
party to introduce evidence to contradict the
evidence improperly admitted. This is for
reasons of fairness.
e.g., where secondary evidence was
admitted despite existence of an original,
such incompetent evidence may be cured
by:
1. Competent Evidence – presentation
of original; or
2. Incompetent Evidence – presentation
of testimony of a third person not party
to the document.
8.B.6. Direct and Circumstantial Evidence
1) Direct evidence – one which proves the
facts in dispute without the aid of any
inference or presumption.
2) Circumstantial evidence – proof of fact
or facts from which, taken either singly or
collectively, the existence of the particular
fact in dispute may be inferred as a
necessary or probable consequence.
8.B.7.Positive and Negative Evidence
1) Positive evidence – when a witness
affirms in the stand that a certain state of
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facts does exist or that a certain event
happened.
2) Negative evidence – when the witness
states that an event did not occur or that
the state of facts alleged to exist does not
actually exist.
8.B.8. Competent and Credible Evidence
1) Competent evidence – refers to evidence
which is not excluded by law, statute, rules,
constitution in a particular case.
2) Credible evidence – evidence which is not
only admissible but also believable and used
by the court in deciding a case.
8.C. BURDEN OF PROOF AND BURDEN OF
EVIDENCE
Burden of Proof
Is the duty of a party to present evidence of the
facts in issue necessary to establish his claim or
defense by the amount of evidence required by
law. (Sec. 1, Rule 131)
Burden of Evidence
Is the duty of the party to go forward with the
evidence to overthrow the prima facie evidence
against him.
 Simply put, he who alleges the affirmative of
the issue has the burden of proof, and upon
the plaintiff in a civil case, the burden of
proof never parts. However, in the course of
trial in a civil case, once plaintiff makes out
aprima facie case in his favor, the duty or
the burden of evidence shifts to defendant
to controvert plaintiff's prima facie case,
otherwise, a verdict must be returned in
favor of plaintiff. Moreover, in civil cases,
the party having the burden of proof must
produce a preponderance of evidence
thereon, with plaintiff having to rely on the
strength of his own evidence and not upon
the weakness of the defendant's. The
concept of "preponderance of evidence"
refers to evidence which is of greater
weight, or more convincing, that which is
offered in opposition to it; at bottom, it
means probability of truth. (Vitarich vs Losin,
G. R. No. 181560, November 15, 2010)

 The burden of proof in establishing adoption
is upon the person claiming such
relationship. (Vda. de Jacob vs. Court of
Appeals, G.R. No. 135216, 312 SCRA 772, August
19, 1999)
 By invoking self-defense, however,
Fontanilla admitted inflicting the fatal
injuries that caused the death of Olais. It is
basic that once an accused in a prosecution
for murder or homicide admitted his
infliction of the fatal injuries on the
deceased, he assumed the burden to prove
by clear, satisfactory and convincing
evidence the justifying circumstance that
would avoid his criminal liability. Having thus
admitted being the author of the death of
the victim, Fontanilla came to bear the
burden of proving the justifying
circumstance to the satisfaction of the court,
and he would be held criminally liable unless
he established self-defense by sufficient and
satisfactory proof. He should discharge the
burden by relying on the strength of his own
evidence, because the Prosecution‘s
evidence, even if weak, would not be
disbelieved in view of his admission of the
killing. Nonetheless, the burden to prove
guilt beyond reasonable doubt remained
with the State until the end of the
proceedings. (People of the Philippines vs.
Fontanilla, G.R. No. 177743, January 25, 2012)
 An admission of carnal knowledge of the
victim and consequently places on the
accused the burden of proving the supposed
relationship by substantial evidence. (People
vs. Antonio, 430 SCRA 619)
 As an affirmative defense, sweetheart
defense must be established with convincing
evidence – by some documentary and/or
other evidence of relationship. (People vs.
Bautista, 430 SCRA 469)
 As a rule, forgery cannot be presumed and
must be proved by clear, positive and
convinving evidence, the burden of proof
lies on the party alleging forgery. One who
alleges forgery has the burden to establish
his case by a preponderance of evidence or
evidence which is of greater weight or more
convincing than that which is offered in
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opposition to it. The fact of forgery can only
be established by a comparison between the
alleged forged signature and the authentic
and genuine signature of the person whose
signature is theorized to have been forged.
(Gepulle-Garbo vs. Spouses Garabato, G.R. No.
200013, January 14, 2005)
Burden of Proof:
Civil Cases:
1. Plaintiff has the burden of proof to show the
truth of his allegations if the defendant
raises a negative defense.
2. Defendant has the burden of proof if he
raises an affirmative defense on the
complaint of the plaintiff.
Criminal Cases:
1. Prosecution has the burden of proving guilt
of the accused because of the presumption
of innocence.
Burden of Evidence
1) The logical necessity of a party, during a
particular time of the trial, to create a prima
facie case in his favor or to destroy that
created against him by presenting evidence.
2) In both civil and criminal cases, the burden
of evidence lies on the party who asserts an
affirmative allegation.
Upon whom burden of evidence rests:
Civil Cases:
1) Plaintiff has to prove his affirmative
allegations in the complaint.
2) Defendant has to prove the affirmative
allegations in his counterclaim and his
affirmative defenses.
Criminal Cases:
1) Prosecution has to prove its affirmative
allegations in the information regarding the
elements of the crime as well as the
attendant circumstances.
2) Defense has to prove its affirmative
allegations regarding the existence of
justifying or exempting circumstances,
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absolutory causes or mitigating it is rebutted, it has been held that a

circumstances. presumption may stand in lieu of evidence
and support a finding or decision. Perforce,
Distinctions: a presumption must be followed if it is
uncontroverted. This is based on the theory
Burden of Proof Burden of Evidence that a presumption is prima facieproof of
Lies on the same party Shifts from party to party, the fact presumed, and unless the fact thus
all throughout the depending upon the established prima facie by the legal
proceeding and does exigencies of the case, in presumption of its truth is disproved, it must
not shift. the course of the trial.
stand as proved. (Tison vs. Court of Appeals,
G.R. No. 121027, July 31, 1997)
Generally determined Generally determined by
by the pleadings filed the developments of the
by the parties. trial, or by the provisions  Indeed, she overlooked or disregarded the
of substantive law or evidential rule that presumptions like judicial
procedural rules which notice and admissions, relieve the
may relieve the party from proponent from presenting evidence on the
presenting evidence on the facts he alleged and such facts are thereby
facts alleged. considered as duly proved. (Tison vs. Court of
Appeals, G.R. No. 121027, July 31, 1997)
Principle of negating averments
 Ordinarily, when a fact is presumed, it
General Rule: Negative allegations need not implies that the party in whose favor the
be proved, whether in a civil or criminal action. presumption exists does not have to
introduce evidence to establish that fact,
Exception: Where such negative allegations and in any litigation where that fact is put in
are essential parts of the cause of action or issue, the party denying it must bear the
defense in a civil case, or are essential burden of proof to overthrow the
ingredients of the offense in a criminal case or presumption. (Tison vs. Court of Appeals, G.R.
defenses thereto. No. 121027, July 31, 1997)

However, in civil cases, even if the negative Classification of Presumptions:

allegation is an essential part of the cause of
action or defense, such negative allegation does
not have to be proved if it is only for the
purpose of denying the existence of a document
which should properly be in the custody of the
adverse party.
 In criminal cases, it is not incumbent upon
the prosecution to adduce positive evidence
to support a negative averment the truth of
which is fairly indicated by established
circumstances and which, if untrue, could
readily be disproved within the defendant‘s
possession or control.
1) Presumption of Law (Presumption in
Juris) is a deduction which the law expressly
directs to be made from particular facts.
2) Presumption of Fact (Presumption in
Hominis) is a deduction which reason draws
from facts proved without an express
direction from the law to that effect.
Presumptions of facts are borne by reason
through human experience
Distinctions:

8.D. PRESUMPTIONS Presumption of Law Presumption of Fact

Is an inference of the existence or non-existence Certain inference must A discretion is vested in
of a fact which is permitted to be drawn from be made whenever the the tribunal as to drawing
the proof of other facts. facts appear which the inference
furnish the basis of the
inference
 Where there is an entire lack of competent Reduced to the fixed Derived wholly and
evidence to the contrary, and unless or until rules and form part of directly from the

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the system of circumstances of the
jurisprudence particular case by means
of the common experience
of man
Kinds of presumptions of law:
1) Conclusive Presumption (juris et de
jure) which is not permitted to be
overcome by any proof to the contrary.
2) Rebuttable Presumption (juris tantum)
is that which the law permits to be
overcome or contradicted by proofs to the
contrary, otherwise, the same remains
satisfactory and is considered sufficient
evidence of the fact in dispute.
8.D.1. Conclusive Presumptions
Classes of conclusive presumptions:
1) Estoppel In Pais (Rule 131, Sec. 2[a]) –
Whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately led 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.
2) Estoppel by Deed (Rule 131, Sec. 2[b]) –
The tenant is not permitted to deny the title
of his landlord at the time of the
commencement of the relation of landlord
and tenant between them.
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.‘ (Section 1, Rule
131, 1989 Revised Rules on Evidence)
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 Scientific experts concur in the view that the
result of a paraffin test is not conclusive.
While it can establish the presence of
nitrates or nitrites on the hand, it does not
always indubitably show that said nitrates or
nitrites were caused by the discharge of
firearm. The person tested may have
handled one or more of a number of
substances which give the same positive
reaction for nitrates or nitrites, such as
explosives, fireworks, pharmaceuticals, and
leguminous plants such as peas, beans, and
alfalfa. A person who uses tobacco may also
have nitrate or nitrite deposits on his hands
since these substances are present in the
products of combustion of tobacco. The
presence of nitrates, therefore, should be
taken only as an indication of a possibility
but not of infallibility that the person tested
has fired a gun. (People vs. Baconguis, 417
SCRA 66, 2003)
Statutory Instances of Estoppel:
1) Non-owner transferor who later acquires
title passes ownership to the transferee by
operation of law (Art. 1434, NCC);
2) Agent who alienates cannot claim title
against the transferee (Art. 1435, NCC);
3) A lessee or a bailee is estopped from
asserting title to the thing leased or
received, as against the lessor or bailor. (Art.
1436, NCC);
4) In a contract between 3rd persons
concerning immovable property, one of
them is misled by a person with respect to
the ownership or real right over the real
estate, the latter is precluded from asserting
his legal title or interest therein, provided all
these requisites are present:
a) Fraudulent representation or wrongful
concealment of facts is known to the
party estopped;
b) Party precluded must intend that the
other should act upon the facts as
misrepresented;
c) Party misled must have been unaware
of the true facts; and
d) Party defrauded must have acted in
accordance with the misrepresentation.
(Art. 1437, NCC)
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One who has allowed another to assume
apparent ownership of personal property for the
purpose of making any transfer of it, cannot, if
he received the sum for which a pledge has
been constituted, set up his own title to defeat
the pledge of the property, made by the other to
a pledgee who received the same in good faith
and for value. (Art. 1438 NCC)
 At the time of the perfection of the contract,
the petitioner spouses, as lessees, were
aware that the NHA, and not Virginia, the
lessor, owned the land on which the rented
house stood yet they signed the same,
obliged themselves to comply with the terms
thereof for five years and performed their
obligations as lessees for two years. Now
they assume a completely different legal
position. They claim that the lease contract
ceased to be effective because Virgilio‘s
assumption of ownership of the land
stripped the respondents of ownership of
the building. They argue that, under Article
440 of the Civil Code, Virgilio‘s title over the
lot necessarily included the house on the
said lot, thus automatically canceling the
contract. XXX After recognizing the validity
of the lease contract for two years, the
petitioner spouses are barred from alleging
the automatic cancellation of the contract on
the ground that the respondents lost
ownership of the house after Virgilio
acquired title over the lot. (Alcaraz vs.
Tangga-an, G.R. No. 128568, 401 SCRA 84, April
9, 2003)
 A party may not go back on his own acts
and representations to the prejudice of the
other party who relied upon them. In the
law of evidence, whenever a party has, by
his own declaration, act or omission,
intentionally and deliberately led 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.
(Metropolitan Bank and Trust Company vs. Court
of Appeals, G.R. No. 122899, 333 SCRA 212,
June 8, 2000)
8.D.2. Disputable Presumptions (Rule 131,
Sec. 3)
a) That a person is innocent of crime or wrong;
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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 takes ordinary care of his
concerns;
e) That evidence willfully suppressed would be
adverse if produced;
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;
i) That prior rents or installments had been
paid when a receipt for the later one is
produced;
j) That a person found in possession of a thing
taken in the doing of a recent wrongful act
is the taker and the doer of the whole act;
otherwise, that things which a person
possess, or exercises acts of ownership
over, are owned by him;
k) That a person in possession of an order on
himself for the payment of the money, or
the delivery of anything, has paid the money
or delivered the thing accordingly;
l) That a person acting in a public office was
regularly appointed or elected to it;
m) That official duty has been regularly
performed;
n) That a court, or judge acting as such,
whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;
o) That all the matters within an issue raised in
a case were laid before the court and
passed upon by it; and in like manner that
all matters within an issue raised in a
dispute submitted for arbitration were laid
before the arbitrators and passed upon by
them;
p) That private transactions have been fair and
regular;
q) That the ordinary course of business has
been followed;
r) That there was a sufficient consideration for
a contract;
s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
t) That an endorsement of negotiable
instrument was made before the instrument
was overdue and at the place where the
instrument is dated;

u) That a writing is truly dated;
v) That a letter duly directed and mailed was
received in the regular course of the mail;
w) That after an absence of seven years, it
being unknown whether or not the absentee
still lives, he is considered dead for all
purposes, except for those of succession.
The absentee shall not be considered dead
for the purpose of opening his succession till
after an absence of ten years. If he
disappeared after the age of seventy-five
years, an absence of five years shall be
sufficient in order that his succession may
be opened.
The following shall be considered dead for
all purposes including the division of the
estate among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aircraft with is
missing, who has not been heard of for
four years since the loss of the vessel or
aircraft;
2. A member of the armed forces who has
taken part in armed hostilities, and has
been missing for four years;
3. A person who has been in danger of
death under other circumstances and
whose existence has not been known
for four years;
4. If a married person has been absent for
four consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
death. In case of disappearance, where
there is a danger of death the
circumstances hereinabove provided, an
absence of only two years shall be
sufficient for the purpose of contracting
a subsequent marriage. However, in any
case, before marrying again, the spouse
present must institute a summary
proceedings as provided in the Family
Codeand in the rules for declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
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x) That acquiescence resulted from a belief
that the thing acquiesced in was
conformable to the law or fact;
y) That things have happened according to the
ordinary course of nature and ordinary
nature habits of life;
z) That persons acting as copartners have
entered into a contract of co-partnership;
aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of
marriage;
bb) That property acquired by a man and a
woman who are capacitated to marry
each other and who live exclusively with
each other as husband and wife without
the benefit of marriage or under void
marriage, has been obtained by their
joint efforts, work or industry.
cc) That in cases of cohabitation by a man
and a woman who are not capacitated
to marry each other and who have
acquire properly through their actual
joint contribution of money, property or
industry, such contributions and their
corresponding shares including joint
deposits of money and evidences of
credit are equal.
dd) That if the marriage is terminated and
the mother contracted another marriage
within three hundred days after such
termination of the former marriage,
these rules shall govern in the absence
of proof to the contrary:
a) A child born before one hundred
eighty days after the solemnization
of the subsequent marriage is
considered to have been conceived
during such marriage, even though
it be born within the three hundred
days after the termination of the
former marriage.
b) A child born after one hundred
eighty days following the celebration
of the subsequent marriage is
considered to have been conceived
during such marriage, even though
it be born within the three hundred
days after the termination of the
former marriage.
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ee) That a thing once proved to exist
continues as long as is usual with things
of the nature;
ff) That the law has been obeyed;
gg) That a printed or published book,
purporting to be printed or published by
public authority, was so printed or
published;
hh) That a printed or published book,
purporting contain reports of cases
adjudged in tribunals of the country
where the book is published, contains
correct reports of such cases;
ii) That a trustee or other person whose
duty it was to convey real property to a
particular person has actually conveyed
it to him when such presumption is
necessary to perfect the title of such
person or his successor in interest;
jj) That except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who
died first, and there are no particular
circumstances from which it can be
inferred, the survivorship is determined
from the probabilities resulting from the
strength and the age of the sexes,
according to the following rules:
a) If both were under the age of
fifteen years, the older is deemed to
have survived;
b) If both were above the age sixty,
the younger is deemed to have
survived.
c) If one is under fifteen and the other
above sixty, the former is deemed
to have survived.
d) If both be over fifteen and under
sixty, and the sex be different, the
male is deemed to have survived, if
the sex be the same, the older.
e) If one be under fifteen or over sixty,
and the other between those ages,
the latter is deemed to have
survived.
kk) That if there is a doubt, as between two
or more persons who are called to
succeed each other, as to which of them
died first, whoever alleges the death of
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one prior to the other, shall prove the
same; in the absence of proof, they
shall be considered to have died at the
same time.
It is a well-settled rule that when the
evidence tends to prove a material fact
which imposes a liability on a party, and
he has it in his power to produce
evidence which from its very nature
must overthrow the case made against
him if it is not founded on fact, and he
refuses to produce such evidence, the
presumption arises that the evidence, if
produced would operate to his
prejudice, and support the case of his
adversary.
 No rule of law is better settled than
that a party having it in his power to
prove a fact, if it exists, which, if
proved, would benefit him, his
failure to prove it must be taken as
conclusive that the fact does not
exist. (Metropolitan Bank and Trust
Company vs. Court of Appeals, G.R. No.
122899, 333 SCRA 212, June 8, 2000
quoting Manila Bay Club Corporation vs.
Court of Appeals, 249 SCRA 303)
 Where facts are in evidence
affording legitimate inferences going
to establish the ultimate fact that
the evidence is designed to prove,
and the party to be affected by the
proof, with an opportunity to do so,
fails to deny or explain them, they
may well be taken as admitted with
all the effect of the inferences
afforded.
The ordinary rule is that one who
has knowledge peculiarly within his
own control, and refuses to divulge
it, cannot complain if the court puts
the most unfavorable construction
upon his silence, and infers that a
disclosure would have shown the
fact to be as claimed by the
opposing party.‘ (Metropolitan Bank
and Trust Company vs. Court of
Appeals, G.R. No. 122899, 333 SCRA
212, June 8, 2000 quoting Manila Bay

Club Corporation vs. Court of Appeals,
249 SCRA 303)
Cases where the presumption that
evidence suppressed would be adverse if
produced does not apply: (People of the
Philippines vs. Padrigone, G.R. No. 137664, 382 SCRA
74, May 9, 2002)
1. the evidence is at the disposal of both
parties;
2. the suppression was not willful;
3. it is merely corroborative or cumulative; and
4. the suppression is an exercise of a privilege
 Besides, the non-presentation of Rowena on
the witness stand cannot be considered as
suppression of evidence. Under Rule 131,
Section 3(e) of the Rules of Court, the rule
that "evidence willfully suppressed would be
adverse if produced" does not apply if (a)
the evidence is at the disposal of both
parties; (b) the suppression was not willful;
(c) it is merely corroborative or cumulative;
and (d) the suppression is an exercise of a
privilege. (People of the Philippines vs.
Padrigone, G.R. No. 137664, 382 SCRA 74, May
9, 2002)
 Plainly, there was no suppression of
evidence in this case. First, the defense had
the opportunity to subpoena Rowena even if
the prosecution did not present her as a
witness. Instead, the defense failed to call
her to the witness stand. Second, Rowena
was certified to be suffering from "Acute
Psychotic Depressive Condition" and thus
"cannot stand judicial proceedings yet." The
non-presentation, therefore, of Rowena was
not willful. Third, in any case, while Rowena
was the victim, Nimfa was also present and
in fact witnessed the violation committed on
her sister. (People of the Philippines vs.
Padrigone, G.R. No. 137664, 382 SCRA 74, May
9, 2002)
No presumption of legitimacy or
illegitimacy (Rule 131, Sec. 4)
There is no presumption of legitimacy or
illegitimacy of a child born three hundred days
following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the
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legitimacy or illegitimacy of such child must
prove his allegation.
8.E. LIBERAL CONSTRUCTION OF RULES
ON EVIDENCE
 Court litigations are primarily for the search
of truth, and a liberal interpretation of the
rules by which both parties are given the
fullest opportunity to adduce proofs is the
best way to ferret out the truth (People vs.
Ebias, 342 SCRA 675).
 Liberal interpretation means such equitable
construction as will enlarge the letter of rule
to accomplish its intended purpose, carry
out its intent, or promote justice. It is that
construction which expands the meaning of
the rule to meet cases which are clearly
within the spirit or reason thereof or which
gives a rule its generally accepted meaning
to the end that the most comprehensive
application thereof may be accorded,
without doing violence to any of its terms.
In short, liberal construction means that the
words should receive a fair and reasonable
interpretation, so as to secure a just, speedy
and inexpensive disposition of every action
or proceeding (Agpalo, Statutory Construction,
p. 287 [1998]).
 Let it initially be said that, indeed, the Court
realizes the points observed by the appellate
court over which there should be no quarrel.
Firstly, that the rules of procedure and
jurisprudence, do not sanction the grant of
evidentiary value, in ordinary trials, of
evidence which is not formally offered, and
secondly, that adjective law is not to be
taken lightly for, without it, the enforcement
of substantive law may not remain assured.
The Court must add, nevertheless, that
technical rules of procedure are not ends in
themselves but primarily devised and
designed to help in the proper and
expedient dispensation of justice. In
appropriate cases, therefore, the rules may
have to be so construed liberally as to meet
and advance the cause of substantial
justice. (Republic vs. Court of Appeals, 277
SCRA 633, 1997)
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Distinctions between admissibility and A defense of self-defense must be proven by

weight and sufficiency of evidence: clear and convincing evidence.

ADMISSIBILITY
WEIGHT AND An extrajudicial confession made by an accused,
SUFFICIENCY shall not be sufficient ground for conviction,
The following requisites Depends upon the unless corroborated by evidence of corpus
must be present for an appreciation of the delicti. (Rule 133, Sec. 3)
evidence to be judge. The appreciation
admissible: of the weight of
evidence by the trial
The basic fundamental rule in criminal cases is
1. Relevant courts is always that ―the testimony must not only credible by
2. Competent conclusive upon the itself but must emanate from a credible
3. Identified appellate court. witness.‖ (People vs. Suarez, 456 SCRA 333)
4. Authenticated
5. Duly Marked In cases against judges which pray for their
6. Formally Offered suspension, dismissal or disbarment, the weight
of evidence requires proof beyond reasonable
Not applicable in Testimonial Evidence doubt. (Reyes vs. Mangino, January 31, 2005)

In determining where the preponderance Circumstantial evidence, when sufficient

or superior weight of evidence on the (Rule 133, Sec. 4)
issues involved lies, the court may
consider:  It is settled that for circumstantial evidence
to suffice to convict, the following requisites
1) All the facts and circumstances of the case; must be met: 1) there is more than one
2) The witnesses' manner of testifying; circumstance; 2) the facts from which the
3) Their intelligence; inferences are derived are proven; and 3)
4) Their means and opportunity of knowing the the combination of all circumstances is such
facts to which they are testifying; as to produce a conviction beyond
5) The nature of the facts to which they testify; reasonable doubt. (People vs. Baconguis, 417
6) The probability or improbability of their SCRA 66, 2003)
testimony;
7) Their interest or want of interest;  The weight of the prosecution‘s evidence
8) Their personal credibility so far as the same must be appreciated in light of the well-
may legitimately appear upon the trial; settled rule which provides that an accused
9) Number of witnesses, though the can be convicted even if no eyewitness is
preponderance is not necessarily with the available, as long as sufficient circumstantial
greater number; and (Rule 133, Sec. 1) evidence is presented by the prosecution to
10) Cause of action on the ground of prove beyond doubt that the accused
reformation of instrument must be proven committed the crime. (People vs. Yatar, 428
by clear and convincing evidence. SCRA 504,2004)

In a criminal case, the accused is entitled  Extra-judicial confessions independently

to an acquittal, unless his guilt is shown
beyond reasonable doubt.
Proof beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility
of error, produces absolute certainty. Moral
certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind. (Rule 133, Sec. 2)
 The circumstances must constitute an
made without collusion, which are identical
with each other in their essential details and
are corroborated by other evidence on
record, are admissible as circumstantial
evidence against the person implicated to
show the probability of the latter‘s actual
participation in the commission of the crime.
(People vs. Domondon, 43 SCRA 486, 1972)
unbroken chain that inexorably leads to one
fair conclusion: the accused committed the

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crime to the exclusion of all others. (People
of the Philippines vs. Deocampo, G.R. No.
185212, February 15, 2012)
 The prosecution is burdened to prove the
essential events which constitute a compact
mass of circumstantial evidence, and the
proof of each being confirmed by the proof
of the other, and all without exception
leading by mutual support to but one
conclusion: the guilt of accused for the
offense charged. For circumstantial evidence
to be sufficient to support a conviction, all
the circumstances must be consistent with
each other, consistent with the hypothesis
that the accused is guilty and at the same
time inconsistent with the hypothesis that
he is innocent, and with every other rational
hypothesis except that of guilt. If the
prosecution adduced the requisite
circumstantial evidence to prove the guilt of
the accused beyond reasonable doubt, the
burden of evidence shifts to the accused to
controvert the evidence of the prosecution.
(People of the Philippines vs. Montañez, G.R. No.
148257, March 17, 2004 quoting People of the
Philippines vs. Delim, 396 SCRA 386, 2003)
 A judgment of conviction based on
circumstantial evidence can be sustained
when the circumstances proved form an
unbroken chain that results to a fair and
reasonable conclusion pointing to the
accused, to the exclusion of all others, as
the perpetrator. (People of the Philippines vs.
Baron, G.R. No. 185209, June 28, 2010)
 His training and experience should have
cautioned him enough on the point that the
lack or absence of direct evidence did not
necessarily mean that the guilt of the
accused could not anymore be proved,
because circumstantial evidence, if
sufficient, could supplant the absence of
direct evidence. In short, evidence of guilt
was not necessarily weak because it was
circumstantial. (Gacal vs. Infante, A.M. No.
RTJ- 04-1845, October 5, 2011)
Substantial evidence – that amount of
relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion.
(Rule 133, Sec. 5)
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In cases filed before administrative or quasi-
judicial bodies, a fact may be deemed
established if it is supported by substantial
evidence. (Rule 133, Sec. 5)
 Substantial evidence is more than a mere
scintilla of evidence. It is that amount of
relevant evidence that a reasonable mind
might accept as adequate to support a
conclusion, even if other minds, equally
reasonable, might conceivably opine
otherwise. (Office of the Ombudsman vs. Reyes,
G.R. No. 170512, October 5, 2011)
 The requirement that the NLRC‘s findings
should be supported by substantial evidence
is clearly expressed in Section 5, Rule 133 of
the Rules of Court which provides that "in
cases filed before administrative or quasi-
judicial bodies, a fact may be deemed
established if it is supported by substantial
evidence, or that amount of relevant
evidence which a reasonable mind might
accept as adequate to justify a conclusion.
(Ramos vs. BPI Family Savings Bank Inc., G.R.
No. 203186, December 4, 2013)
 Findings of fact by the Officer of the
Ombudsman when supported by substantial
evidence are conclusive. Any order, directive
or decision imposing the penalty of public
censure or reprimand, suspension of not
more than one (1) month's salary shall be
final and unappealable. (Section 27, 3rd
paragraph, R.A. No. 6770 or The Ombudman Act
of 1989)
 Indeed, Section 27 of Republic Act No. 6770
mandates that the findings of fact by the
Office of the Ombudsman are conclusive
when supported by substantial evidence.
(Office of the Ombudsman vs. Reyes, G.R. No.
170512, October 5, 2011)
Equipoise or Equiponderance Doctrine
Refers to a situation where:
1. The evidence of the plaintiff and defendant
are evenly balanced; or
2. There is doubt on which side of the
evidence preponderates;
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3. The court shall decide against the party who
has the burden of proof.
 Such doctrine is based on the constitutional
provision that no one shall be deprived of
life, liberty or property without due process
of law.
Under the equipoise rule, where the
evidence on an issue of fact is in equipoise
or there is doubt on which side the evidence
preponderates, the party having the burden
of proof loses. The equipoise rule finds
application if the inculpatory facts and
circumstances are capable of two or more
explanations, one of which is consistent with
the innocence of the accused and the other
consistent with his guilt, for then the
evidence does not fulfill the test of moral
certainty, and does not suffice to produce a
conviction. (Candao vs. People, 659 SCRA 696,
2011)
Power of the court to stop further
evidence (Rule 133, Sec. 6)
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 which will merely be cumulative.
Evidence on Motion (Rule 133, Sec. 7)
When a motion is based on facts not appearing
of record the court may hear the matter on
affidavits or depositions presented by the
respective parties;
But the court may direct that the matter be
heard wholly or partly on oral testimony or
depositions.
8.F. QUANTUM OF EVIDENCE (WEIGHT
AND SUFFICIENCY OF EVIDENCE)
Civil Cases: Preponderance of evidence
Criminal Cases:
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To sustain conviction: Evidence of Guilt beyond
Reasonable Doubt.
Preliminary Investigation:
Prima Facie Case – engender a well-founded
belief that a crime has been committed and that
the accused is probably guilty thereof
For Issuance of warrant of arrest:
Probable Cause – that there is reasonable
ground to believe that the accused has
committed an offense
Hierarchy of evidence
From most burdensome to least:
1) Overwhelming evidence
2) Proof beyond reasonable doubt
3) Clear and convincing evidence
4) Preponderance of evidence
5) Substantial evidence
6) Prima facie evidence
7) Probable cause
8) Iota of evidence
Overwhelming Evidence
Is that which can never be controverted or
overturned by any other evidence.
8.F.1. Proof Beyond Reasonable Doubt
Does not mean such a degree of proof as,
excluding possibility of error, produces absolute
certainty. Moral certainty is only required, or
that degree of proof which produces conviction
in an unprejudiced mind. (Rule 134, Sec. 2)
 A conviction in a criminal case must be
supported by proof beyond reasonable
doubt, which means a moral certainty that
the accused is guilty; the burden of proof
rests upon the prosecution. (People of the
Philippines vs. Patentes, G.R. No. 190178,
February 12, 2014)
 The judgment in a criminal case can be
upheld only when there is relevant evidence
from which the court can properly find or
infer that the accused is guilty beyond
reasonable doubt. Proof beyond reasonable
doubt requires moral certainty of guilt in
order to sustain a conviction. Moral certainty

is that degree of certainty that convinces
and directs the understanding and satisfies
the reason and judgment of those who are
bound to act conscientiously upon it. It is
certainty beyond reasonable doubt. This
requires that the circumstances, taken
together, should be of a conclusive nature
and tendency; leading, on the whole, to a
satisfactory conclusion that the accused,
and no one else, committed the offense
charged. (People of the Philippines vs. Yatar,
G.R. No. 150224, May 19, 2004)
8.F.2. Preponderance of EVidence
Is that which is more convincing and more
credible than the one offered by the adverse
party.
 Preponderance of evidence" is the weight,
credit, and value of the aggregate evidence
on either side and is usually considered to
be synonymous with the term "greater
weight of the evidence" or "greater weight
of the credible evidence." Preponderance of
evidence is a phrase which, in the last
analysis, means probability of the truth. It is
evidence which is more convincing to the
court as worthy of belief than that which is
offered in opposition thereto. (Philippine
Commercial International Bank vs. Balmaceda,
G.R. No. 158143, September 21, 2011 quoting
Encinas v. National Bookstore, Inc., 485 Phil.
683, 2004)
 In civil cases, the degree of evidence
required of a party in order to support his
claim is preponderance of evidence or that
evidence adduced by one party which is
more conclusive and credible than that of
the other party. (Stronghold Insurance
Company, Inc. vs. Court of Appeals, et al., G.R.
No. 83376, May 29, 1989, 173 SCRA 619, 625
cited in Philippine Airlines Inc. vs. Ramos, G.R.
No. 92740, March 23, 1992)
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
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court 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. (Section 1, Rule 133, 1989
Revised Rules on Evidence)
8.F.3. Substantiantial evidence
Is such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion. (Rule 133, Sec. 5)
It means more than a scintilla but may be
somewhat less than preponderance, even if
other reasonable minds might conceivably opine
otherwise. (Spouses Manalo vs. Hon. Roldan-
Confessor, G.R. No. 102358, November 19, 1992)
8.F.4. Clear and Convincing Evidence
 Is the quantum of proof required according
to law.
In Extradition cases, the extradite may be
allowed to post bail only upon clear and
convincing evidence showing that:
Once allowed to post bail, the applicant will
not be a flight risk or a danger to the
community; and
There exist special humanitarian and
compelling circumstances to justify the grant
of bail. (Government of Hong Kong vs. Olalia,
Jr., April 19, 2007)
It produces in the mind of the trier of fact a firm
belief or conviction as to allegations sought to
be established.
It is intermediate, ebing more than
propendarance, but not to the extent of such
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certainty as is required beyond reasonable doubt
as in criminal cases.
 In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato
S. Puno, proposed that a new standard
which he termed "clear and convincing
evidence" should be used in granting bail in
extradition cases. According to him, this
standard should be lower than proof beyond
reasonable doubt but higher than
preponderance of evidence. (Government of
Hongkong Special Administrative Region vs.
Olalia, Jr., G.R. No. 153675, April 19, 2007)
 The foregoing standard of proof required to
establish one's filiation is founded on the
principle that an order for recognition and
support may create an unwholesome
atmosphere or may be an irritant in the
family or lives of the parties, so that it must
be issued only if paternity or filiation is
established by clear and convincing evidence.
(Jison vs. Court of Appeals, G.R. No. 124853,
February 24, 1998)
 We begin our resolution of this issue with
the well-settled rule that the party alleging
fraud or mistake in a transaction bears the
burden of proof. The circumstances
evidencing fraud are as varied as the people
who perpetrate it in each case. It may
assume different shapes and forms; it may
be committed in as many different ways.
Thus, the law requires that it be established
by clear and convincing evidence. (Republic
of the Philippines vs. Heirs of Alejaga, G.R. No.
146030, December 3, 2002)
 The defense of alibi cannot save the
appellants from conviction. They have not
established by clear and convincing evidence
that they were at some other place and for
such a period of time as to negate their
presence at the time when and the place
where the crimes were committed. (People of
the Philippines vs. Flores, G.R. No. 71980, March
18, 1991)
Appellant‘s bare denial is not only an
inherently weak defense. It is not supported
by clear and convincing evidence. It cannot
thus prevail over the positive declaration of
Evelyn who convincingly identified him as
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her rapist. (People of the Philippines vs.
Golimlim, G.R. No. 145225, April 2, 2004)
 We have stated that an allegation that one
was framed can be made with ease. That
allegation must therefore be proved by clear
and convincing evidence. The presumption
that law enforcers have regularly performed
their duties perforce requires that proof of a
frame-up must be strong. (People of the
Philippines vs. Tranca, 235 SCRA 455)
8.G. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS
8.G.1. What Need Not Be Proved
1. Those which the courts may take judicial
notice (Rule 129)
2. Those which are judicially admitted (Rule
129)
3. Matters of discretionary judicial notice (Rule
129)
8.G.2. Matters of Judicial Notice
Is when courts may properly take and act on
matters without proof because such are already
known to it.
1) This, however, does not include personal
knowledge of the facts by the judge.
2) This is based on consideration of expediency
and convenience.
3) It is, thus, a substitute for detailed evidence.
Requisites of judicial notice:
1) The matter must be of common knowledge;
2) It must be well and authoritatively settled
and not doubted or uncertain; and
3) It must be known to be within the limits of
the jurisdiction of the court.
Three kinds of judicial notice
1. Mandatory
2. Discretionary
3. Requiring a hearing
 True, as a general rule, courts should
not take judicial notice of the evidence
presented in other proceedings, even if
these have been tried or are pending in
the same court, or have been heard and
are actually pending before the same

judge. This is especially true in criminal
cases, where the accused has the
constitutional right to confront and
cross-examine the witnesses against
him. [People vs. Kulais, 292 SCRA
551(1998)]
 The doctrine of judicial notice rests on
the wisdom and discretion of the courts.
The power to take judicial notice is to
be exercised by courts with caution;
care must be taken that the requisite
notoriety exists; and every reasonable
doubt on the subject should be promptly
resolved in the negative. [State
Prosecutors vs. Muro, 236 SCRA 505(1994)]
 To say that a court will take judicial
notice of a fact is merely another way of
saying that the usual form of evidence
will be dispensed with if knowledge of
the fact can be otherwise acquired. This
is because the court assumes that the
matter is so notorious that it will not be
disputed. But judicial notice is not
judicial knowledge. The mere personal
knowledge of the judge is not the
judicial knowledge of the court, and he
is not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his
action. Judicial cognizance is taken only
of those matters which are ―commonly‖
known. [State Prosecutors vs. Muro, 236
SCRA 505(1994)]
 Respondent judge, in the guise of
exercising discretion and on the basis of
a mere newspaper account which is
sometimes even referred to as hearsay
evidence twice removed, took judicial
notice of the supposed lifting of foreign
exchange controls, a matter which was
not and cannot be considered of
common knowledge or of general
notoriety. Worse, he took cognizance of
an administrative regulation which was
not yet in force when the order of
dismissal was issued. Jurisprudence
dictates that judicial notice cannot be
taken of a statute before it becomes
effective. The reason is simple. A law
which is not yet in force and hence, still
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inexistent, cannot be of common
knowledge capable of ready and
unquestionable demonstration, which is
one of the requirements before a court
can take judicial notice of a fact.
Evidently, it was impossible for
respondent judge, and it was definitely
not proper for him, to have taken
cognizance of CB Circular No. 1353,
when the same was not yet in force at
the time the improvident order of
dismissal was issued. [State Prosecutors
vs. Muro, 236 SCRA 505(1994)]
 The allegation of the assessed value of the
realty must be found in the complaint, if the
action (other than forcible entry or unlawful
detainer) involves title to or possession of
the realty, including quieting of title of the
realty. If the assessed value is not found in
the complaint, the action should be
dismissed for lack of jurisdiction because the
trial court is not thereby afforded the means
of determining from the allegations of the
basic pleading whether the jurisdiction over
the subject matter of the action pertains to
it or to another court. Courts cannot take
judicial notice of the assessed or market
value of the realty. (Penta Pacific Realty
Corporation vs Ley Construction and
Development Corporation, G.R. No. 161589,
November 24, 2014)
8.G.2.A. Mandatory Judicial Notice
1) Existence and territorial extent of states;
2) Their political history, forms of government
and symbols of nationality;
3) The law of nations;
4) The admiralty and maritime courts of the
world and their seals.
5) The political constitution and history of the
Philippines.
6) The official acts of the legislative, executive
and judicial departments of the Philippines.
7) Statutes are not the ―acts of the legislative‖
pertained here.
8) The laws of nature
9) The measure of time; and
10) The geographical divisions.
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Note: Courts cannot take judicial notice of
foreign laws. [Relate to Rule 39, Sec, 4] (Laureano
vs. CA and Singapore Airlines, 324 SCRA 414)
Laws of Nation
1) That are subject to judicial notice are laws
which regulates the dominant powers of the
earth.
2) It is the compilation of rules which by
common consent of mankind have been
acquiesced in as law.
Doctrine of Processual Presumption
 It lays down the presumption that the
foreign law is the same as the law of the
forum. It arises if the foreign law, though
properly applicable, is either not alleged, or
if alleged, is not duly proved before a
competent court.
At the outset, we find it necessary to state
our concurrence on the assumption of
jurisdiction by the Regional Trial Court of
Manila, Branch 9. The trial court rightly
ruled on the application of Philippine law,
thus: ―Neither can the Court determine
whether the termination of the plaintiff is
legal under the Singapore Laws because of
the defendant‘s failure to show which
specific laws of Singapore Laws apply to this
case. As substantially discussed in the
preceding paragraphs, the Philippine Courts
do not take judicial notice of the laws of
Singapore. The defendant that claims the
applicability of the Singapore Laws to this
case has the burden of proof. The
defendant has failed to do so. Therefore,
the Philippine law should be applied.‖
[Laureano vs. Court of Appeals, 324 SCRA
414(2000)]
8.G.2.B. Discretionary judicial notice
Refers to matters which are:
1) Of public knowledge; or
2) Are capable of unquestionable
demonstration; or
e.g., That April 4, 2002 falls on a Thursday.
3) Ought to be known to judges because of
their judicial functions.
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e.g., That Filipino women as witnesses are
ordinarily docile and timid.
When court takes judicial notice:
a) During trial; or
b) After trial and before judgment or on
appeal.
General Rule: Courts should not take judicial
notice of the evidence presented in other
proceedings, even if these have been tried or
are pending in the same court or have been
heard and are actually pending before the same
judge. (People vs. Kulais, 292 SCRA 551)
Exceptions:
1. When, either at the initiative of the judge or
that of the parties, and without objection of
any party, the record of the previous action
may be read and adopted into the present
action.
2. When, without the objection on the part of
any party, the records of the previous case
which are actually withdrawn from the
archives and attached to the records of the
present action by court order.
Judicial notice of municipal ordinances
Inferior courts should take judicial notice of
municipal or city ordinances in force in their
territorial jurisdiction.
The Regional Trial Court should take judicial
notice of municipal ordinances only when:
a) They are expressly authorized by statute;
and
b) On appeals of decisions by the inferior court
when such courts had taken notice of a
municipal ordinance.
 The Court of Appeals may take judicial
notice of municipal ordinances because
nothing in the Rules prohibits it from
taking cognizance of an ordinance which
is capable of unquestionable
demonstration. (Gallego vs. People, 8
SCRA 813)

When hearing is necessary: (Rule 129, Sec. 3)
1) During the trial: the courtmotupropio, or on
request of a party; announces its intention
to take judicial notice of any matter.
2) After trial and before judgment or on
appeal: The court motupropio, or on request
of a party; Takes judicial notice of any
matter, and allows the parties to be heard
thereon if such matter is decisive of a
material issue in the case.
Hence, the court can take judicial notice of
any matter during the trial as long as there
is a hearing. If trial is already over, the court
can take judicial notice only of matters
decisive of a material issue in the case as
long as there is a hearing (p. 88, Francisco).
8.G.3. Judicial admissions
An admission, verbal or written, made by a 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
through palpable mistake or that no such
admission was made. (Rule 129, Sec. 4)
 May be verbal or written and made by a
party in the course of the proceedings in the
same case. Such admission does not
require proof.
It is settled that judicial admissions may be
made: (a) in the pleadings filed by the
parties; (b) in the course of the trial either
by verbal or written manifestations or
stipulations; or (c) in other stages of judicial
proceedings, as in the pre-trial of the case.
Thus, facts pleaded in the petition and
answer, as in the case at bar, are deemed
admissions of petitioner and respondents,
respectively, who are not permitted to
contradict them or subsequently take a
position contrary to or inconsistent with
such admissions. [Republic vs. Sandiganbayan,
406 SCRA 190(2003)]
 A written statement is nonetheless
competent as an admission even if it is
contained in a document which is not itself
effective for the purpose for which it is
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made, either by reason of illegality, or
incompetency of a party thereto, or by
reason of not being signed, executed or
delivered. Accordingly, contracts have been
held as competent evidence of admissions,
although they may be unenforceable.
[Republic vs. Sandiganbayan, 406 SCRA
190(2003)]
 The rule is that the testimony on the witness
stand partakes of the nature of a formal
judicial admission when a party testifies
clearly and unequivocally to a fact which is
peculiarly within his own knowledge.
[Republic vs. Sandiganbayan, 406 SCRA
190(2003)]
 Respondents‘ ownership of the Swiss bank
accounts as borne out by Mrs. Marcos‘
manifestation is as bright as sunlight. And
her claim that she is merely a beneficiary of
the Swiss deposits is belied by her own
signatures on the appended copies of the
documents substantiating her ownership of
the funds in the name of the foundations. As
already mentioned, she failed to specifically
deny under oath the authenticity of such
documents, especially those involving
―William Saunders‖ and ―Jane Ryan‖ which
actually referred to Ferdinand Marcos and
Imelda Marcos, respectively. That failure of
Imelda Marcos to specifically deny the
existence, much less the genuineness and
due execution, of the instruments bearing
her signature, was tantamount to a judicial
admission of the genuineness and due
execution of said instruments, in accordance
with Section 8, Rule 8 of the 1997 Rules of
Civil Procedure. [Republic vs. Sandiganbayan,
406 SCRA 190(2003)]
The admission may be contradicted only
by showing that:
1. It was made through palpable mistake; or
2. No such admission was made.
General Rule: Judicial admissions should be
made in the same case.
Exception: Where there is identity of parties in
interest. (Republic Glass vs. Qua, 435 SCRA 480)
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Cross-refer to Extra-judicial Admission.
If the admission was made outside the
proceedings or in another case, it is also
admissible under admissions of a party. (Rule
130, Sec. 26)
Instances of judicial admissions
1) The genuineness and due execution of an
actionable document copied or attached to a
pleading, when the other party fails to
specifically deny under oath. (Rule 8, Sec. 8)
2) Material allegations in the complaint, when
the other party fails to specifically deny it.
(Rule 8, Sec. 11)
3) Admissions in superseded pleadings, when
offered in evidence. (Rule 10, Sec. 8)
4) Act, declaration, or omission of a party as to
a relevant fact. (Rule 130, Sec. 26)
5) Implied admission of guilt in an offer of
compromise by the accused in criminal
cases, except quasi-offenses and those
allowed by law to be compromised. (Rule
130, Sec. 27)
6) Admission by silence. (Rule 130, Sec. 32)
7) Admissions obtained through depositions,
written interrogatories or requests for
admissions.
8) As far as the one who offered it, depositions
are admissions.
8.G.3.A. Effect of judicial admissions
1. Allegations, statements, or admissions
contained in the pleading are conclusive as
against the pleader.
2. Failure to deny under oath the genuineness
and due execution of an actionable
document in Sec. 8 Rule 8 of the Rules of
Court gives rise to a judicial admission on
his part of the genuineness and due
execution of the instrument.
8.G.3.B. How Judicial Admissions May be
Contradicted
a) Upon a showing that the admission was
made through palpable mistake.
b) When it is shown that no such admission
was made.
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8.G.4. Judicial Notice of Foreign Laws and
Municipal Ordinance
In general, and in the absence of statutory
requirement to the contrary, the courts will not
take judicial notice of the laws prevailing in
another country. Foreign laws must be alleged
and proved. In the absence of proof, the foreign
law will be presumed to be the same as the laws
of the Philippines under the doctrine of
processual presumption.
Judicial notice of the law of nations
The law of nations is subject to a mandatory
judicial notice. Under the Philippine Constitution,
we adopt the generally accepted principles of
international law as forming part of the law of
the land. Being parts of the law of the land, they
are therefore technically in the nature of local
laws and thus subject to mandatory judicial
notice.
Judicial notice of municipal ordinances
 Municipal court must take judicial notice of
the municipal ordinances in force in the
municipality in which they sit.
 The Regional Trial Courts should take
judicial notice of the municipal ordinances
within their jurisdiction only when so
required by law, or on appeal of cases from
the MTC in which the latter took notice of
such ordinance.
 The Court of Appeals may take judicial
notice of municipal ordinances because
nothing in the Rules prohibits it from taking
cognizance of an ordinance which is capable
of unquestionable demonstration.
Judicial admissions in pleadings later
amended
In civil cases, an amended pleading becomes a
judicial admission; and the contents of the
pleading it amended is not included in the
amended pleading, becomes extra-judicial
admissions which must be offered in evidence
for it to be considered by the trial court.
General Rule: Judicial admissions made in one
case are admissible at the trial of another case
provided they are proved and are pertinent to
the issue involved in the latter.

Exceptions:
a) The said admissions were made only for
purposes of the first case, as in the rule of
implied admissions and their effects under
Rule 26;
b) The same were withdrawn with the
permission of the court therein; and
c) The court deems it proper to relieve the
party therefrom.
Self-serving rule:
1) It prohibits the admission of declaration of a
witness in his favor.
2) It applies only to extrajudicial admission and
not those made in open court. The
admission made in open court is admissible
because the witness may be cross-examined
on the matter. It is however up to the court
to appreciate the same.
8.H. OBJECT / REAL EVIDENCE
1) Evidence addressed to the senses of the
court.
2) Always accompanied by testimonial evidence
to support the object presented which is not
a rule of exclusion.
3) Ocular inspection qualifies as object
evidence. (Sec 1, Rule 130)
 Nothing is older or commoner in the
administration of law in all countries
than the submission to the senses of the
tribunal itself, whether judge or jury, of
objects which furnish evidence. The
view of the land by the jury, in real
actions, of a wound by the judge where
mayhem was alleged, and of the person
of one alleged to be an infant, in order
to fix his age, the inspection and
comparison of seals, the examination of
writings, to determine, whether they are
‗blemished,‘ the implements with which
a crime was committed or of a person
alleged, in a bastardy proceeding, to be
the child of another, are few illustrations
of what may be found abundantly in our
own legal records and textbooks for
seven centuries past. (People of the
Philippines vs. Rullepa, G.R. No. 131516,
March 5, 2003)
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 When the trier of facts observes the
appearance of a person to ascertain his
or her age, he is not taking judicial
notice of such fact; rather, he is
conducting an examination of the
evidence, the evidence being the
appearance of the person. Such a
process militates against the very
concept of judicial notice, the object of
which is to do away with the
presentation of evidence. This is not to
say that the process is not sanctioned
by the Rules of Court; on the contrary, it
does. A person's appearance, where
relevant, is admissible as object
evidence, the same being addressed to
the senses of the court. (People of the
Philippines vs. Rullepa, G.R. No. 131516,
March 5, 2003)
 As the alleged age approaches the age
sought to be proved, the person's
appearance, as object evidence of her
age, loses probative value. Doubt as to
her true age becomes greater and,
following Agadas, supra, such doubt
must be resolved in favor of the
accused. This is because in the era of
modernism and rapid growth, the
victim's mere physical appearance is not
enough to gauge her exact age. For the
extreme penalty of death to be upheld,
nothing but proof beyond reasonable
doubt of every fact necessary to
constitute the crime must be
substantiated. Verily, the minority of the
victim should be not only alleged but
likewise proved with equal certainty and
clearness as the crime itself. Be it
remembered that the proof of the
victim's age in the present case spells
the difference between life and death.
(People of the Philippines vs. Rullepa, G.R.
No. 131516, March 5, 2003)
 The circumstances of force and
intimidation attending the instant case
were manifested clearly not only in the
victim's testimony but also in the
physical evidence presented during the
trial consisting of her torn dress and
underwear as well as the medico-legal
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report. Such pieces of evidence indeed 8.H.2. Requisites for Admissibility of

are more eloquent than a hundred Object Evidence:
witnesses. (People of the Philippines vs.
Ulzoron, G.R. No. 121979, March 2, 1998) 1) Relevant;
2) Competent;
 The rule in this jurisdiction is that 3) Identified; Not present in
photographs, when presented in 4) Authenticated; Testimonial
evidence, must be identified by the 5) Duly Marked; and Evidence
photographer as to its production and 6) Formally Offered
testified as to the circumstances under
which they were produced. The value of Demonstrative is not the actual thing but it is
this kind of evidence lies in its being a referred to as demonstrative because it
correct representation or reproduction represents or demonstrates the real thing.
of the original, and its admissibility is
determined by its accuracy in portraying It is not strictly ―real‖ evidence because it is not
the scene at the time of the crime. The the very thing involved in the case.
photographer, however, is not the only
witness who can identify the pictures he 8.H.3. Categories of Object Evidence
has taken. The correctness of the
photograph as a faithful representation Direct Evidence - Can prove directly the fact
of the object portrayed can be proved for which it is offered.
prima facie, either by the testimony of
the person who made it or by other Circumstantial Evidence - Facts about the
competent witnesses, after which the object are proved as the basis for an inference
court can admit it subject to that other facts are true.
impeachment as to its accuracy.
Photographs, therefore, can be 8.H.4. Demonstrative Evidence
identified by the photographer or by any
other competent witness who can testify These are tangible evidence that merely
to its exactness and accuracy. (Sison vs. illustrate a matter of importance in the litigation.
People of the Philippines, G.R. Nos. 108280-
83 November 16, 1995) Demonstrative
Real Evidence
Evidence
 Although We agree with their opinion Tangible object that Tangible evidence that
that a positive finding of matching played some actual merely illustrate a matter
fingerprints has great significance, We role in the matter that of importance in the
cannot sustain their theory that from gave rise to the litigation.
the negative findings in the fingerprint litigation.
examination conducted in the course of
the investigation in the instant case, it 8.H.5. View of an Object or Scene
must be concluded that they could not (“automatic” evidence) (Sec 1 Rule 130)
have been at the scene of the crime.
(People of the Philippines vs. Sartagoda, Object as Evidence. Object as evidence are
G.R. No. 97525, April 7, 1993) those addressed to the senses of the court.
When an object is relevant to the fact in issue, it
8.H.1. Nature of Object Evidence may be exhibited to, examined or viewed by the
court.
Object evidence refers to those which are
addressed to the senses of the court and is not The court can go to the pace where the object is
limited to the view of an object but also to located, when the object cannot be brought to
visual, auditory, tactile, gustatory and olfactory court.
perception.

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Chain of Custody in Relation to Section 21
of the Comprehensive Dangerous Drugs
Act of 2002
 Section 21 of the CDDA mandates the PDEA
to take charge and have custody of all
dangerous drugs, plant sources of
dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered. These shall be subject to
proper disposition in the following manner:
The apprehending team having initial
custody and control of the drugs shall,
immediately after seizure and confiscation,
physically inventory and photograph the
same in the presence of the accused or the
person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the DOJ, and any
elected public official who shall be required
to sign the copies of the inventory and be
given a copy thereof;
Within 24 hours upon confiscation/seizure of
dangerous drugs, plant sources of
dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to
the PDEA Forensic Laboratory for a
qualitative and quantitative examination.
A certification of the forensic laboratory
examination results, which shall be done
under oath by the forensic laboratory
examiner, shall be issued within 24 hours
after the receipt of the subject item/s:
Provided, that when the volume of the
dangerous drugs, plant sources of
dangerous drugs, and controlled precursors
and essential chemicals does not allow the
completion of testing within the time frame,
a partial laboratory examination report shall
be provisionally issued stating therein the
quantities of dangerous drugs still to be
examined by the forensic laboratory:
Provided, however, that a final certification
shall be issued on the completed forensic
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laboratory examination on the same within
the next 24 hours.
After the filing of the criminal case, the
Court shall, within 72 hours, conduct an
ocular inspection of the confiscated, seized
and/or surrendered dangerous drugs, plant
sources of dangerous drugs, and controlled
precursors and essential chemicals,
including the instruments/ paraphernalia
and/or laboratory equipment, and through
the PDEA shall within 24 hours thereafter
proceed with the destruction or burning of
the same, in the presence of the accused or
the person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the DOJ, civil society
groups and any elected public official. The
Board shall draw up the guidelines on the
manner of proper disposition and
destruction of such item/s which shall be
borne by the offender: Provided, that those
item/s of unlawful commerce, as determined
by the Board, shall be donated, used or
recycled for legitimate purposes: Provided
further, that a representative sample, duly
weighed and recorded is retained.
The Board shall then issue a sworn
certification as to the fact of destruction or
burning of the subject item/s which,
together with the representative sample/s in
the custody of the PDEA, shall be submitted
to the court having jurisdiction over the
case. In all instances, the representative
sample/s shall be kept to a minimum
quantity as determined by the Board; and
The alleged offender or his/her
representative or counsel shall be allowed to
personally observe all of the above
proceedings and his/her presence shall not
constitute an admission of guilt. In case the
said offender or accused refuses or fails to
appoint a representative after due notice in
writing to the accused or his/her counsel
within 71 hours before the actual burning or
destruction or the evidence in question, the
SOJ shall appoint a member of the PAO to
represent the former.
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After the promulgation and judgment in the b) Illegally obtained evidence.

criminal case wherein the representative
sample/s was presented as evidence in
court, the trial prosecutor shall inform the
Board of the final termination of the case
and, in turn, shall request the court for
leave to turn over the said representative
sample/s to the PDEA for proper disposition
and destruction within 24 hours from receipt
of the same.In cases of dangerous drugs,
what is important and necessary is for the
prosecution to prove with moral certainty
"that the dangerous drug presented in court
as evidence against the accused [be] the
same item recovered from his possession.
(People vs Dada, June 6, 2011 G.R. No. 191266 )
Non-inherent Limitations:
a) Undue prejudice
b) Indecency or impropriety
c) Offensiveness to human sense; and
d) Inconvenience and unnecessary expense
of litigation.
Note: Photographs are real evidence, but they
should be authenticated by:
a) The one who took the picture; and
b) The person in the picture.
8.I. DOCUMENTARY EVIDENCE

 Crucial in proving chain of custody is the 8.I.1. Meaning of Documentary Evidence,

marking of the seized drugs or other related (Sec 2, Rule 130)
items immediately after they are seized from
the accused. Marking after seizure is the a) Refers to writings and any material
starting point in the custodial link; hence, it containing modes of written expressions
is vital that the seized contraband be offered as proof of their contents.
immediately marked because succeeding b) Any object or material having any matter
handlers of the specimens will use the expressed or described upon it by marks
markings as reference. The records in the capable of being read.
present case do not show that the police c) If offered as proof of the existence of such
marked the seized plastic sachet document, it is an object evidence.
immediately upon confiscation, or at the
police station. Notably, the members of the 8.I.2. Requisites for Admissibility of
buy-bust team did not also mention that Documentary Evidence:
they marked the seized plastic sachet in
their Joint Affidavit of Arrest. (People of the Documents must be relevenat. Evidence must
Philippines vs Sabdula, G.R. No. 184758, April 21, be authenticated.
2014 )
a) Relevant
 In the prosecution of a case for sale of b) Competent
illegal drugs punishable under Section 5, c) Identified Not present in
Article II of Republic Act No. 9165, d) Authenticated Testimonial
noncompliance with the procedure set forth e) Duly Marked; and Evidence
in Section 21 of the law is not necessarily f) Formally Offered
fatal as to render an accused‘s arrest illegal
or the items confiscated from him Documents under the Rules on Electronic
inadmissible as evidence of his guilt, if, Evidence
nonetheless, the integrity and evidentiary
value of the confiscated items is preserved, a) Electronic documents are the functional
there will yet be basis for the establishment equivalents of paper-based documents.
of the guilt of the accused. (People of the b) Any reference to a document under the
Philippines vs Bulotano, G.R. No. 190177, June rules on evidence shall be deemed to
11, 2014 ) include electronic evidence.
Grounds for excluding object evidence: 8.I.2.A. Rules in documentary evidence
Inherent Limitations: 1) Best Evidence
a) Irrelevance / immateriality; and

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2) Parol Evidence
3) Electronic Evidence
 When presented the registry return
cards during the trial, petitioner Tan
claimed that he did not recognize the
signatures thereon. The petitioners‘
allegation and denial are self-serving.
They cannot prevail over the registry
return cards which constitute
documentary evidence and which enjoy
the presumption that, absent clear and
convincing evidence to the contrary,
these were regularly issued by the
postal officials in the performance of
their official duty and that they acted in
good faith. (Lapu-lapu Foundation vs. Court
of Appeals, G.R. No. 126006, January 29,
2004)
 As for the baptismal certificate, we have
already decreed that it can only serve as
evidence of the administration of the
sacrament on the date specified but not
of the veracity of the entries with
respect to the child‘s paternity. (Puno vs.
Puno Enterprise Inc., G.R. No. 177066, 599
SCRA 585, September 11, 2009)
 As to the Baptismal Certificate of
Christian Paulo Salas also indicating
petitioner as the father, we have ruled
that while baptismal certificates may be
considered public documents, they can
only serve as evidence of the
administration of the sacraments on the
dates so specified. They are not
necessarily competent evidence of the
veracity of entries therein with respect
to the child‘s paternity. (Salas vs.
Matusalem, G.R. No. 180284, September 11,
2013)
 A certificate of live birth purportedly
identifying the putative father is not
competent evidence of paternity when
there is no showing that the putative
father had a hand in the preparation of
the certificate. The local civil registrar
has no authority to record the paternity
of an illegitimate child on the
information of a third person. (Puno vs.
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Puno Enterprise Inc., G.R. No. 177066, 599
SCRA 585, September 11, 2009)
8.I.3. Best Evidence (Sec. 3, Rule 130)
General Rule: When the subject of inquiry is
the contents of a document, no evidence shall
be admissible other than the original document
itself.
Exceptions: (a.k.a. Secondary Evidence Rule)
When the original:
1) Has been lost or destroyed, or cannot be
produced in court, without bad faith on the
part of the offeror.
2) 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.
3) 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
4) The original is a public record in the custody
of a public officer or is recorded in a public
office. (Rule 130, Sec. 3)
Purposes:
1. To prevent fraud – If a party is in
possession of such evidence and withholds
it, and seeks to substitute inferior evidence
in its place, the presumption naturally arises
that the better evidence is withheld for
fraudulent purposes which its production
would expose and defeat.
2. To exclude uncertainties in the
contents of a document – the best
evidence rule accepts the document itself as
the best evidence of its contents because it
is certain; and rejects a copy thereof,
because of the uncertainty of its contents
caused by the hazards of faulty duplication,
or an oral description thereof, because of
the uncertainty caused by the frailties of
human recollection.
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8.I.3.A. Meaning of Best Evidence Rule
The term ―best evidence: does not pertain to
the degree at the probative value of the written
evidence in relation to other types of evidence.
It refers to the production of the original writing
when the contents of such writing are the
subject of the inquiry.
8.I.3.B. When Applicable
Original writing or a private document;
Duly identified
1) A sufficient foundation be laid, so as to
entitle the writing to be admitted in
evidence; and
2) It must be available to the other party for
cross-examination.
When Best Evidence Rule does not apply:
1. Where the transactions have been recorded
in writing but the contents of such writing
are not ―the subject of inquiry‖, the best
evidence rule does not apply.
2. The best evidence rule is not involved if the
content of affidavits or depositions are not
the issues in the case but are only intended
as evidence to establish the issue in
controversy. The use of said affidavits is
regulated by the hearsay evidence rule.
 The best evidence rule does not apply
to the marked money in a buy bust
operation because the inquiry is not on
the contents of the marked bill, but
merely its existence (People v. Tandoy,
192 SCRA 28).
8.I.3.C. When Document Original
(Rule 130, Sec. 4)
Meaning of Original
1) When one the contents of which are the
subject of inquiry;
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; or
3) When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
384 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
transaction, all the entries are likewise
equally regarded as originals.
 When carbon sheets are inserted
between two or more sheets of writing
paper so that the writing of a contract
upon the outside sheet, including the
signature of the party to be charged
thereby, produces facsimile upon the
sheets beneath, such signature being
thus reproduced by the same stroke of
the pen which made the surface or
exposed impression, all of the sheets so
written on are regarded as duplicate
originals and either of them may be
introduced in evidence as such without
accounting for the nonproduction of the
others. (People of the Philippines vs. Tan,
G.R. No. L-14257, July 31, 1959)
 Furthermore, the respondents failed to
sufficiently prove the allegations sought
to be proven. Why the respondents‘
photocopied and computerized copies of
documentary evidence were not
presented at the earliest opportunity is a
serious question that lends credence to
the petitioners‘ claim that the
respondents fabricated the evidence for
purposes of appeal. While we generally
admit in evidence and give probative
value to photocopied documents in
administrative proceedings, allegations
of forgery and fabrication should prompt
the adverse party to present the original
documents for inspection. It was
incumbent upon the respondents to
present the originals, especially in this
case where the petitioners had
submitted their specimen signatures.
Instead, the respondents effectively
deprived the petitioners of the
opportunity to examine and controvert
the alleged spurious evidence by not
adducing the originals. This Court is
thus left with no option but to rule that
the respondents‘ failure to present the
originals raises the presumption that
evidence willfully suppressed would be
adverse if produced. (Loon vs. Power
Master, Inc., G.R. No. 189404, December 11,
2013)

8.I.3.D. Requisites for introduction of
secondary evidence (Sec. 5, Rule 130)
When Secondary Evidence may be
admitted:
The original has been lost or destroyed, or
cannot be produced in court:
1) Prove due execution or existence;
2) Prove cause of unavailability without bad
faith on the part of the offeror; and
3) Proof of contents in the following order:
4) Copy of the writing;
5) Recital of its contents in some authentic
document; or
6) Recollection of the witness. (Rule 130, Sec. 5)
 Where the original has been lost or
destroyed, the offeror may prove its
contents by a recital of its contents in some
authentic document or by testimony of
witnesses. The certificate is one such
authentic document. (Municipality of Victorias
vs. CA, 149 SCRA 32)
 Failure to prove loss of all the originals
without fault of the offeror renders
secondary evidence inadmissible. (De Vera
vs. Aguilar, 218 SCRA 602)
 Secondary evidence is admissible when the
original documents were actually lost or
destroyed. But prior to the introduction of
such secondary evidence, the proponent
must establish the former existence of the
instrument. The correct order of proof is as
follows: Existence; execution; loss; contents
although this order may be changed if
necessary in the discretion of the court. The
sufficiency of proof offered as a predicate
for the admission of an alleged lost deed lies
within the judicial discretion of the trial court
under all the circumstances of the particular
case. (De Vera vs. Aguilar, G.R. No. 83377,
February 9, 1993)
 For secondary evidence to be admissible,
there must be satisfactory proof of (1) the
due execution of the original; (2) the
original‘s loss, destruction or unavailability
that is not due to the offeror‘s bad faith;
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and (3) reasonable diligence and good faith
in the search for or attempt to produce the
original. (Citibank Mastercard vs. Teodoro, G.R.
No. 150905, September 23, 2003)
 In establishing the execution of a document
the same may be established by the person
or persons who executed it, by the person
before whom its execution was
acknowledged, or by any person who was
present and saw it executed or who, after
its execution, saw it and recognized the
signatures; or by a person to whom the
parties to the instrument had previously
confessed the execution thereof. (De Vera vs.
Aguilar, G.R. No. 83377, February 9, 1993)
 After the due execution of the document has
been established, it must next be proved
that said document has been lost or
destroyed. The destruction of the instrument
may be proved by any person knowing the
fact. The loss may be shown by any person
who knew the fact of its loss, or by anyone
who had made, in the judgment of the
court, a sufficient examination in the place
or places where the document or papers of
similar character are usually kept by the
person in whose custody the document lost
was, and has been unable to find it; or who
has made any other investigation which is
sufficient to satisfy the court that the
instrument is indeed lost. (De Vera vs. Aguilar,
G.R. No. 83377, February 9, 1993)
 However, all duplicates or counterparts must
be accounted for before using copies. For,
since all the duplicates or multiplicates are
parts of the writing itself to be proved, no
excuse for non-production of the writing
itself can be regarded as established until it
appears that all of its parts are unavailable
(i.e. lost, retained by the opponent or by a
third person or the like). (De Vera vs. Aguilar,
G.R. No. 83377, February 9, 1993)
 Finally, when more than one original copy
exists, it must appear that all of them have
been lost, destroyed, or cannot be produced
in court before secondary evidence can be
given of any one. A photocopy may not be
used without accounting for the other
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ARELLANO UNIVERSITY SCHOOL OF LAW
originals. (Citibank Mastercard vs. Teodoro, G.R.
No. 150905, September 23, 2003)
 If you avail of secondary evidence,
establish: Existence, Execution, Loss and
Contents; in that order. It may be changed
at the discretion of the judge. (De Vera vs.
Aguilar, 218 SCRA 602)
When the original is in the custody or
under the control of the adverse party
The Adverse party had reasonable notice to
produce the original (Subpoena ducestecum);
Note: No particular form of notice is required,
as long as it fairly apprises the other party as to
what papers are desired. Even an oral demand
will suffice.
Proof of the original‟s existence
Adverse party fails to produce the original; and
Proof of contents in the following order:
a) Copy of the writing;
b) Recital of its contents in some authentic
document; or
c) Testimony of witnesses. (Rule 130, Sec. 6)
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; (Rule 130, Sec. 3[c])
The original is a public record in the custody of a
public officer or is recorded in a public office –
contents may be proved by a certified copy
issued by the public officer in custody thereof.
(Rule 130, Sec. 7)
Note: A party who calls for the production of a
document and inspects the same is not obliged
to offer it as evidence. (Rule 130, Sec. 8)
Substitutionary Rule – if the original is not
available, the same may be substituted by
presenting the following in the order stated:
a) Copy of the writing;
b) Recital of its contents in some authentic
document; or
c) Testimony of witnesses. (Rule 130, Sec. 5)
386 CENTER FOR LEGAL EDUCATION AND RESEARCH
2018
Definite Evidentiary Rule – the order does
not apply where the law specifically provides for
the class or quantum of secondary evidence to
establish the contents of the document.
Authentic Document means that the
document should be genuine; it need not be
public.
Doctrine of Irremovability of Public
Record:
General Rule: Any public record, an official
copy of which is admissible in evidence, must
not be removed from the office in which it is
kept.
Exception: Upon order of a court, where
inspection of the record is exercised to the just
determination of a pending case.
What attestation of copy must state:
1. The copy is a correct copy of the original, or
a specific part thereof.
2. 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.
3. When the existence of a document is
proven, the court should allow the lost
document to be proven by parole; testimony
of a witness need not be verbatim (Vda. de
Corpus v. Brabangco, (C.A.) 59 O.G. 8262).
4. The voluminous character of accounts must
be established, and it must be made
available to the adverse party before parole;
audit made by or testimony of private
auditor is inadmissible as proof of original
record or books of accounts; auditor‘s
opinion not admissible; best evidence on
cost of equipment are sales invoices not
testimony of an auditor (Compañia Maritima
vs. Allied Free Workers Union, 77 SCRA 24).
5. It is not necessary for a party seeking to
introduce a copy, to prove that the original
is in actual possession of the adverse party
as long as it is under his control; the
adverse party need not admit that it is in his
possession before a copy may be introduced
(Villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845).
 Anent the best evidence rule, Section
3(d) of Rule 130 of the Rules of Court

provides that when the subject of
inquiry is the contents of a document,
no evidence shall be admissible other
than the original document itself, except
when the original is a public record in
the custody of a public officer or is
recorded in a public office. Section 7 of
the same Rule provides that when the
original of a document is in the custody
of a public officer or is recorded in a
public office, its contents may be proved
by a certified copy issued by the public
officer in custody thereof. Section 24 of
Rule 132 provides that the record of
public documents may be evidenced by
a copy attested by the officer having the
legal custody or the record. (Dimaguila
vs. Monteiro, G.R. No. 201011, January 27,
2014)
 Certified true copies of the cadastral
map of Liliw and the corresponding list
of claimants of the area covered by the
map were presented by two public
officers. The first was Crisostomo Arves,
Clerk III of the Municipal Assessor's
Office, a repository of such documents.
The second was Dominga Tolentino, a
DENR employee, who, as a record
officer, certifies and safekeeps records
of surveyed land involving cadastral
maps. The cadastral maps and the list of
claimants, as certified true copies of
original public records, fall under the
exception to the best evidence rule.
(Dimaguila vs. Monteiro, G.R. No. 201011,
January 27, 2014)
6.3.1. Rules on Electronic Evidence (A.M.
No. 01-7-01-SC)
Rule 1
Scope: - Applies whenever an electronic data
message is offered or used in evidence.
Cases covered: - These Rules shall apply to
the criminal, civil actions and proceedings, as
well as quasi-judicial and administrative cases.
(Section 2, Rule 1)
Application of Rules on Electronic Evidence
in Criminal Cases
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As to the admissibility of the text messages, the
RTC admitted them in conformity with the
Court‘s earlier Resolution applying the Rules on
Electronic Evidence to criminal actions.‖ [People
vs. Enojas, 718 SCRA 313 (2014)]
Application of the other rules on evidence:
In all matters not specifically covered by these
Rules, the Rules of Court and pertinent
provisions of statutes containing rules on
evidence shall apply.
Rule 2
Definition of terms
“Asymmetric or public cryptosystem” - a
system capable of generating a secure key pair,
consisting of a private key for creating a digital
signature, and a public key for verifying the
digital signature.
“Business records” - include records of any
business, institution, association, profession,
occupation, and calling of every kind, whether or
not conducted for profit, or for legitimate
purposes.
“Certificate” - an electronic document issued
to support a digital signature which purports to
confirm the identity or other significant
characteristics of the person who holds a
particular key pair.
“Computer” - any single or interconnected
device or apparatus, which, by electronic,
electro-mechanical or magnetic impulse, or by
other means with the same function, can
receive, record, transmit, store, process,
correlate, analyze, project, retrieve and/or
produce information, data, text, graphics,
figures, voice, video, symbols or other modes of
expression or perform any one or more of these
functions.
“Digital Signature” - an electronic signature
consisting of a transformation of an electronic
document or an electronic data message using
an asymmetric or public cryptosystem such that
a person having the initial untransformed
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electronic document and the signer‘s public key
can accurately determine:
1) Whether the transformation was created
using the private key that corresponds to
the signer‘s public key; and
2) Whether the initial electronic document had
been altered after the transformation was
made.
“Digitally signed” - an electronic document or
electronic data message bearing a digital
signature verified by the public key listed in a
certificate.
“Electronic data message” - information
generated, sent, received or stored by
electronic, optical or similar means.
“Electronic document” - information or the
representation of information, data, figures,
symbols or other modes of written expression,
described or however represented, by which a
right is established or an obligation
extinguished, or by which a fact may be proved
and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or
produced electronically.
Includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document. For
purposes of these Rules, the term ―electronic
document‖ may be used interchangeably with
electronic data message‖.
“Electronic key” - a secret code which secures
and defends sensitive information that crosses
over public channels into a form decipherable
only with a matching electronic key.
“Electronic signature" - any distinctive mark,
characteristic and/or sound in electronic form
representing the identity of a person and
attached to or logically associated with the
electronic data message or electronic document
or any methodology or procedure employed or
adopted by a person and executed or adopted
by such person with the intention of
authenticating, signing or approving an
electronic data message or electronic document.
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For purposes of these Rules, an electronic
signature includes digital signatures.
“Ephemeral electronic communication” -
telephone conversations, text messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of
communication the evidence of which is not
recorded or retained.
“Information and Communication System”
- a system for generating, sending, receiving,
storing or otherwise processing electronic data
messages or electronic documents and includes
the computer system or other similar devices by
or in which data are recorded or stored and any
procedure related to the recording or storage of
electronic data message or electronic document.
“Key Pair” in an asymmetric cryptosystem - the
private key and its mathematically related public
key such that the latter can verify the digital
signature that the former creates.
“Private Key” - the key of a key pair used to
create a digital signature.
“Public Key” - the key of a key pair used to
verify a digital signature.
Construction:
Liberally construed to assist the parties in
obtaining a just, expeditious, and inexpensive
determination of cases.
The interpretation of these Rules shall also take
into consideration the international origin of R.A.
No. 8792, a.k.a. Electronic Commerce Act.
Rule 3
Electronic documents
Electronic Documents as Functional
Equivalent of Paper-Based Documents
(Principle of Functional Equivalence):
Whenever a rule of evidence refers to the term
of writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document.

Admissibility:
An electronic document is admissible in evidence
if:
1. It complies with the rules on admissibility
prescribed by the Rules of Court and related
laws; and
2. Authenticated in the manner prescribed by
these Rules.
Privileged communication
The confidential character of a privileged
communications is not solely on the ground that
it is in the form of an electronic document.
 Text messages may be admitted as
evidence. (Vidallon-Magtolis vs. Salud, 469
SCRA 439)
 The SC admitted the evidence even if there
was no authentication due to the Extradition
Treaty between Hong Kong and the
Philippines. In this case, there is urgency.
(Cuevas vs. Muños, 348 SCRA 592)
 Filing a pleading by facsimile is not allowed
by the Rules of COMELEC and the Rules of
Court, which is suppletory. (Garvida vs. Sales,
Jr., 271 SCRA 767)
Here, facsimile signature was allowed because:
It is not proscribed by law; and
 There is waiver because the CENR
Commissioner himself referred to such
signature, thus admitting its validity. (Heirs
of Sabanpan vs. Comorposa, 408 SCRA 692)
A print out of an original document is likewise
considered an original document within the
purview of the Best Evidence Rule. (See Rule 4 of
the Rules on Electronic Evidence)
General Rule: A scanned image of the
document, on the other hand, is NOT an original
document. (See MCC vs. Ssangyong, G.R. No.
170633, October 17, 2007)
Exception: If otherwise provided under R.A.
No. 9369 or the ―Automated Election Law‖.
 We agree, therefore, with both the HRET
and Panotes that the picture images of the
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ballots, as scanned and recorded by the
PCOS, are likewise "official ballots" that
faithfully captures in electronic form the
votes cast by the voter, as defined by
Section 2 (3) of R.A. No. 9369. As such, the
printouts thereof are the functional
equivalent of the paper ballots filled out by
the voters and, thus, may be used for
purposes of revision of votes in an electoral
protest. (Vinzons-Chato vs. HRET, G.R. No.
199149, January 22, 2013)
 But this juridical reality does not authorize
the courts, the COMELEC, and the Electoral
Tribunals to quickly and unilaterally resort to
the printouts of the picture images of the
ballots in the proceedings had before them
without notice to the parties. Despite the
equal probative weight accorded to the
official ballots and the printouts of their
picture images, the rules for the revision of
ballots adopted for their respective
proceedings still consider the official ballots
to be the primary or best evidence of the
voters‘ will. In that regard, the picture
images of the ballots are to be used only
when it is first shown that the official ballots
are lost or their integrity has been
compromised. (Maliksi vs. COMELEC, G.R. No.
203302, April 11, 2013)
Rule 4
Best Evidence Rule
Original of an electronic document
An electronic document shall be regarded as the
equivalent of an original document under the
Best Evidence Rule if it is a printout or output
readable by sight or other means, shown to
reflect the data accurately.
Copies as Equivalent of the Originals
General Rule: When a document is in two or
more copies
1) Executed at or about the same time with
identical contents;
2) Is a counterpart produced by the same
impression as the original;
3) From the same matrix;
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4) By mechanical or electronic re-recording;
5) By chemical reproduction;
6) Other equivalent techniques which
accurately reproduces the original;
7) such copies or duplicates shall be regarded
as the equivalent of the original
Exceptions:
1) A genuine question is raised as to the
authenticity of the original; or
2) It would be unjust or inequitable to admit a
copy in lieu of the original under the
circumstances.
Rule 5
Authentication of electronic documents
Burden of Proving Authenticity:
The person seeking to introduce an electronic
document in any legal proceeding has the
burden of proving its authenticity in the manner
provided in this Rule.
Who May Authenticate?
1) One who is a party to the document – even
notaries public;
2) Other persons privy to the document; and
3) Experts.
Manner of Authentication:
Before any private electronic document offered
as authentic is received in evidence, its
authenticity must be proved by any of the
following means:
1) By evidence that it had been digitally signed
by the person purported to have signed the
same;
2) By evidence that other appropriate security
procedure or devices as may be authorized
by the Supreme Court or by law for
authentication of electronic documents were
applied to the document; or
3) By other evidence showing its integrity and
reliability to the satisfaction of the judge.
Proof of Electronically Notarized
Document:
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A document electronically notarized in
accordance with the rules promulgated by the
Supreme Court shall be considered as a public
document and proved as a notarial document
under the Rules of Court.
Rule 6
Electronic signatures
1) An electronic signature or a digital signature
authenticated in the manner prescribed
hereunder is admissible in evidence as the
functional equivalent of the signature of a
person on a written document.
2) Authentication of electronic signatures may
be authenticated in any of the following
manner:
a) By evidence that a method or process w
as utilized to establish a digital signature
and verity the same.
b) By any other means provided by law; or
c) By any other means satisfactory to the
judge as establishing the genuineness of
the electronic signature.
Disputable presumptions in relation to:
Electronic Signature
Upon the authentication of an electronic
signature, it shall be presumed that:
1) The electronic signature is that of the
person to whom it correlates;
2) The electronic signature was affixed by that
person with the intention of authenticating
or approving the electronic document to
which it is related or to indicate such
person‘s consent to the transaction
embodied therein; and
3) The methods or processes utilized to affix or
verity the electronic signature operated
without error or fault.
Digital Signatures
Upon the authentication of a digital signature, it
shall be presumed, in addition to those
mentioned in the abovementioned paragraph,
that:
1) The information contained in a certificate is
correct;
2) The digital signature was created during the
operational period of a certificate;

3) The message associated with a digital
signature has not been altered from the
time it was signed; and
4) A certificate had been issued by the
certification authority indicated therein.
Rule 7
Evidentiary Weight of Electronic
Documents
Factors for assessing evidentiary weight:
1) The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests
and checks for accuracy and reliability of the
electronic data message or document, in the
light of all the circumstances as well as any
relevant agreement;
2) The reliability of the manner in which its
originator was identified;
3) The integrity of the information and
communication system in which it is
recorded or stored, including but not limited
to the hardware and computer programs or
software used as well as programming
errors;
4) The familiarity of the witness or the person
who made the entry with the
communication and information system;
5) The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based; or
6) Other factors which the court may consider
as affecting the accuracy or integrity of the
electronic document or electronic data
message.
Integrity of an information and
communication system
In any dispute involving the integrity of the
information and communication system in which
an electronic document or electronic data
message is recorded or stored, the court may
consider, among others, the following factors:
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1) Whether the information and communication
system or other similar device was operated
in a manner that did not affect the integrity
of the electronic document, and there are
no other reasonable grounds to doubt the
integrity of the information and
communication system;
2) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it; or
3) Whether the electronic document was
recorded or stored in the usual and ordinary
course of business by a person who is not a
party to the proceedings and who did not
act under the control of the party using it.
Rule 8
Business records as exception to the
hearsay rule
A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses, made by electronic, optical or
other similar means shall be excepted from the
rule on hearsay evidence provided that:
1) It was made at or near the time of or from
transmission or supply of information by a
person with knowledge thereof;
2) It was kept in the regular course or conduct
of a business activity;
3) Such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means;
4) All of which are shown by the testimony of
the custodian or other qualified witnesses.
Overcoming the presumption:
The presumption provided for in Section 1 of
this Rule may be overcome by evidence of the
untrustworthiness of the source of information
or the method or circumstances of the
preparation, transmission or storage thereof.
Rule 9
Method of proof
Affidavit of evidence
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All matters relating to the admissibility and
evidentiary weight of an electronic document
may be established by an affidavit stating facts
of direct personal knowledge of the affiant or
based on authentic records. The affidavit must
affirmatively show the competence of the affiant
to testify on the matters contained therein.
Cross-Examination of Deponent
The affiant shall be made to affirm the contents
of the affidavit in open court and may be cross-
examined as a matter of right by the adverse
party.
Rule 11
Audio, photographic, video and ephemeral
evidence
Audio, Video and Similar Evidence
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided it:
1) Shall be shown, presented or displayed to
the court; and
2) Shall be identified, explained or
authenticated by the person who made the
recording or by some other person
competent to testify on the accuracy
thereof.
 Before a tape recording is admissible in
evidence and given probative value, the
following requisites must first be
established:
o A showing that the recording
device was capable of taking
testimony;
o A showing that the operator of
the device was competent;
o Establishment of the
authenticity and correctness of
the recording;
o A showing that changes,
additions, or deletions have not
been made;
o A showing of the manner of the
preservation of the tape
recording;
o Identification of the speakers;
and
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o A showing that the testimony
elicited was voluntarily made
without any kind of inducement.
The party seeking the introduction in evidence
of a tape recording bears the burden of going
forth with sufficient evidence that the recording
is an accurate reproduction of the conversation
recorded. These requisites were laid down
precisely to saddress the criticism of
susceptibility of tampering of recordings.
(Torralba vs. People of the Philippines, G.R. No.
153699, August 22, 2005)
Ephemeral Electronic Communication
Shall be proven by the testimony of a person
who was a party to the same or has personal
knowledge thereof. In the absence or
unavailability of such witnesses, other
competent evidence may be admitted.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
If the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of Rule 5 shall apply.
Interpretation of documents
Rules on interpretation of documents
1) Interpretation of a writing according to its
legal meaning in the place of execution (Rule
130, Sec 10)
2) Instrument construed so as to give effect to
more provisions (Rule 130, Sec 11)
3) Interpretation according to intention of the
parties (Rule 130, Sec 12)
4) Particular provisions over general provisions
(Rule 130, Sec 12)
5) Interpretation according to circumstances of
the parties and the subject (Rule 130, Sec 13)
6) Terms presumed to be used in primary and
general acceptation, evidence of local,
technical, or peculiar signification use
admissible (Rule 130, Sec 14)
7) Written words control printed (Rule 130, Sec
15)
8) When the characters are difficult to
decipher, or the language is foreign, the

evidence of experts and interpreters is
admissible (Rule 130, Sec 16)
9) When the terms of an agreement have been
intended in a different sense by the different
parties to it, that sense is to prevail against
either party in which he supposed the other
to have understood it (Rule 130, Sec 17)
10) When different constructions of a provision
are otherwise equally proper, that is to be
taken which is the most favorable to the
party in whose favor the provision was
made.
11) Preference for natural right (Rule 130, Sec 18)
12) Usage may be considered (Rule 130, Sec 19)
E-Commerce Law (Republic Act No. 8792)
The Supreme Court has strengthened the
principle of functional equivalence in the E-
Commerce Act, according to which electronic
documents that meet the requirements of the
Act are considered the functional equivalent of
paper-based documents.
Text messages have been classified as
―ephemeral electronic communication‖ under
Sec. 1(k) of rule 2 of the Rules on Electronic
Evidence, and shall be proven by the testimony
of a person who was a party to the same or has
personal knowledge thereof. (Vidallon-Magtolis vs.
Salud, 469 SCRA 439)
8.I.4. Parol Evidence Rule (Sec. 9, Rule 130)
Is based upon the the consideration that when
the parties have reduced their agreement on a
part matter into writing, all their previous and
contemporaneous agreements on the matter are
merged therein.
Means extrinsic evidence or evidence aliunde.
8.I.4.A. Application of the Parol Evidence
Rule
It becomes operative when the issues in the
litigation are the terms of a written agreement.
General Rule: It forbids any addition to or
contradiction of the terms of a written
instrument by testimony purporting to show that
at or before the signing of the document, other
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or different terms were orally agreed upon by
the parties.
It refers not only to oral but also written
evidence as long as they are outside of or
extraneous to the written contract between the
parties.
Rule 130, Sec. 9, par. 1: When the terms of an
agreement have been reduced to writing, it is
considered as containing all the terms agreed
upon and there can be, between the parties and
their successors in interest, no evidence of such
terms other than the contents of the written
agreement.
Exceptions: A party may present evidence to
modify, explain or add to the terms of the
written agreement if he puts in issue in his
pleading:
1) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2) Failure of the written agreement to express
the true intent and agreement of the
parties;
3) Validity of the written agreement; or
4) The existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written
agreement.
General Rule: Parol evidence is admissible if
there are mistakes or imperfections.
Exception: If the party fails to allege such in
the pleadings. (Philippine National Railways vs. CIR
of Albay, 83 SCRA 569)
Requisites for the Applicability of Parol
Evidence Rule
1) There must be a valid contract;
2) The terms of the agreement must be
reduced to writing; and
3) The dispute is between parties and their
successors in interest.
 The rule, however, is not applicable in the
case at bar, Section 7, Rule 130 is
predicated on the existence of a document
embodying the terms of an agreement, but
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Exhibit D does not contain such an
agreement. It is only a receipt attesting to
the fact that on May 4, 1982, the petitioner
received from the private respondent the
amount of P35,000. It is not and could have
not been intended by the parties to be the
sole memorial of their agreement. As a
matter of fact, Exhibit D does not even
mention the transaction that gave rise to its
issuance. At most, Exhibit D can only be
considered a casual memorandum of a
transaction between the parties and an
acknowledgment of the receipt of money
executed by the petitioner for the private
respondent's satisfaction. A writing of this
nature, as Wigmore observed is not covered
by the parol evidence rule. (Cruz vs. Court of
Appeals, G.R. No. 79962, December 10, 1990)
 The parol evidence rule forbids any addition
to the terms of a written instrument by
testimony purporting to show that, at or
before the signing of the document, other or
different terms were orally agreed upon by
the parties. (Ortañez vs. Court of Appeals, G.R.
No. 107372, January 23, 1997)
 Although parol evidence is admissible to
explain the meaning of a contract, ―it cannot
serve the purpose of incorporating into the
contract additional contemporaneous
conditions which are not mentioned at all in
the writing unless there has been fraud or
mistake.‖ (Ortañez vs. Court of Appeals, G.R.
No. 107372, January 23, 1997)
 Evidence of a prior or contemporaneous
verbal agreement is generally not admissible
to vary, contradict or defeat the operation of
a valid contract. While parol evidence is
admissible to explain the meaning of written
contracts, it cannot serve the purpose of
incorporating into the contract additional
contemporaneous conditions which are not
mentioned at all in writing, unless there has
been fraud or mistake. (Lapu-lapu Foundation
vs. Court of Appeals, G.R. No. 126006, January
29, 2004)
 Before parol evidence may be admitted in
order to identify, explain or define the
subject matter of a writing, it must first be
shown that the writing itself already
contains a description sufficient to serve as
394 CENTER FOR LEGAL EDUCATION AND RESEARCH
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a foundation for the admission of such parol
evidence; the evidence should also be
consistent with the writing. Otherwise
stated, in order to admit parol evidence to
aid in the description of the subject matter
of a deed or other writing, there must be a
description that will serve as a foundation
for such evidence; the writing must at least
give some data from which the description
may be found and made certain. Parol
evidence is not admissible to identify the
property where the description thereof is so
vague as to amount to no description at all.
In other words, parol evidence is not
permitted to supply a description, but only
to apply it. (Borillo vs. Court of Appeals, G.R.
No. 55691, May 21, 1992)
Purpose of the rule:
1) To give stability to written agreement and
remove the temptation and possibility of
perjury, which would be afforded if parol
evidence was admissible.
2) The rule applies only to integrated
agreements; thus, unless the written
instrument was intended by both parties as
the final and exclusive memorial of their
dealings, the rule does not apply.
 The reason for the rule is the presumption
that when the parties have reduced their
agreement to writing they have made such
writing the only repository and memorial of
the truth, and whatever is not found in the
writing must be understood to have been
waived or abandoned. (Cruz vs. Court of
Appeals, G.R. No. 79962, December 10, 1990)
Theory of Integration of Jural Acts
Previous acts and contemporaneous transaction
of the parties are deemed integrated and
merged in the written instrument which they
have executed.
When the parties have reduced their agreement
to writing, it is presumed that they have made
the writing the only repository and memorial of
the truth, and whatever is not found in the
writing must be understood to have been
waived and abandoned.
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Exception: the parol evidence rule. (Lechugas v Court of

Appeals, 143 SCRA 355)
Collateral Oral Agreement - a contract made
prior to or contemporaneous with another 8.I.4.C. DISTINCTIONS BETWEEN PAROL
agreement and if oral and not inconsistent with EVIDENCE RULE AND BEST EVIDENCE
written contract is admissible within the RULE
exception to parol evidence rule.
Parol Evidence Rule Best Evidence Rule
An Agreement is ―collateral‖ if it meets the As to availability of the original
following requirements: Presupposes that the Contemplates a situation
1) It is not a part of the integrated written original is available in when the original is not
court. available in court and/or
agreement in any way;
there is a dispute as to
2) It is not inconsistent with the written whether said writing is the
agreement in any way, including both the original.
express and implied provisions of the written
agreement; and
3) It is not closely connected with the principal As to what is prohibited by the rule
transaction as to form part and parcel Prohibits the varying Prohibits the introduction
thereof. of the terms of a of substitutionary evidence
written agreement. in lieu of the original
document regardless of
Kinds of ambiguity: whether or not it varies
the contents of the original
1. Intrinsic or Latent Ambiguity –when the
writing on its face appears clear and
unambiguous, but there are collateral
matters or circumstances which makes the As to who may invoke the rule
meaning uncertain. Can be invoked only Can be invoked by any
when the controversy party to an action
is between the parties regardless of whether such
2. Extrinsic or Patent Ambiguity –
to the written party participated or not in
ambiguity is patent on the face of the agreement, their the writing involved.
writing itself and requires something to be privies, or any party
added in order to ascertain the meaning of directly affected
the words used. thereby.
As to documents to which it may be applicable
3. Intermediate Ambiguity – where the With the exception of Applies to all kinds of
ambiguity consists in the use of equivocal wills, applies only to writing.
words designating the person or subject documents which are
matter, parol evidence of collateral or contractual in nature.
extrinsic matter may be introduced for the
purpose of aiding the court in arriving at the Intrinsic and Intermediate Ambiguities are
meaning of the language used. curable by evidence aliunde or extraneous
evidence and will be admissible as long as such
8.I.4.B. When parole evidence can be ambiguity is put in issue.
introduced
Patent ambiguity cannot be cured by
 The parol evidence rule applies only to the evidence aliunde, and are therefore
parties to the contract and their successors- inadmissible.
in-interest. Here, the one offering the parol The evidence aliunde is either testimonial
evidence (the defendant in the action for evidence or documentary evidence.
recovery filed by Victoria) was a stranger to
the deed of sale. Hence, he is not bound by Principle of “falsademonstratio non nocet
cum de corporeconstat":

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False description does not injure or vitiate a
document, provided that the thing or person
intended has once been sufficiently described.
Rule on conditional agreements:
1. Conditions Precedent – may be
established by parol evidence because there
is no varying of the terms of the written
contract by extrinsic agreement for the
reason that there is no contract in existence;
there is nothing upon which to apply the
excluding rule.
2. Conditions Subsequent – may not be
established by parol evidence.
Rule on subsequent agreements:
Parol Evidence Allowed. The rule forbidding
the admission of parol evidence to alter or
contradict a written instrument does not apply
so as to prohibit the establishment by parol
evidence of an agreement between the parties
in writing, entered into subsequent to the time
when the written instrument was executed,
notwithstanding that such agreement may have
the effect of changing the contract of the parties
as evidenced by the writing; for parol evidence
merely goes to show that the parties have
exercised their right to change the same, or to
make a new and independent contract, provided
such contract is not invalid under the statute of
frauds or otherwise.
Express Trusts on Immovables (Art. 1443,
NCC)
Cannot be proved by parol evidence.
Statute of frauds (Art. 1403 and 1405 NCC):
If the following agreements are not in writing
and subscribed, it is unenforceable and evidence
thereof is inadmissible:
1) Special promise to answer for the debt,
default, or miscarriage of another;
2) Obligations not to be performed within a
year from the making thereof;
3) Agreement made in consideration of
marriage, other than a mutual promise to
marry;
4) Agreement for the sale of goods, chattels or
things in action, at a price not less than
396 CENTER FOR LEGAL EDUCATION AND RESEARCH
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P500, unless the buyer accept and receive
part of such goods and chattels, or the
evidences, or some of them, of such things
in action or pay at the time some part of the
purchase money;
5) Lease for more than 1 year, or sale of real
property or of an interest therein;
6) Representation as to the credit of a 3rd
person.
Exceptions:
1) Failure to object to the presentation of oral
evidence, or
2) Acceptance of benefit under the agreement
 Parol Evidence Rule does not apply to
receipts because it is not an agreement. It is
proof only of delivery of money.
Furthermore, the parole evidence bars only
evidence as to the terms, it does not bar
evidence as to statement of facts. The
receipt of money is merely a statement of
fact. Lastly, failure of the adverse party to
object renders parole evidence admissible.
(Cruz v CA, 192 SCRA 209).
 Since the answer alleged that the contract
did not express the true intention of the
parties, it has therefore been put in issue in
the pleadings. The same may therefore be
subject of parole evidence. (Enriquez vs.
Ramos, 6 SCRA 219 (1962)
 Parol evidence is inadmissible to incorporate
additional contemporaneous conditions
which are not mentioned at all in the
writing, unless there is fraud or mistake. (Yu
Tek & Co. vs. Gonzales, 29 Phil. 384)
 Exception to Parol Evidence Rule may be put
in issue in answer to counterclaim; when
operation of contract made to depend upon
occurrence of an event, which for that
reason is a condition precedent, such may
be established by parol evidence, since if it
is proven, there will be no contract. (Land
Settlement & Development Corp. v. Garcia
Plantation, 7 SCRA 750)
 Parol Evidence Rule does not apply where
the purpose of parol evidence is to show
that no written contract ever existed.
(Maulini vs. Serrano, 28 Phil. 640)

 Assurances made by an indorser that the
drawer has funds, which assurances induced
bank to cash the check, are admissible in
evidence. (PNB vs. Seeto, 91 Phil. 756)
 Inducement by fraud may be proved by
parol because it goes into the validity of the
agreement. (Woodhouse vs. Halili, 93 Phil. 526)
 Parol evidence may be received to
determine whether the written agreement
contains any reference to the collateral
agreement and whether the action is at law
or in equity even if it deals with related
matters. (Robles vs. Lizarraga, 50 Phil. 387)
 Parol Evidence Rule is not applicable where
suit is between one of the parties to the
document and 3rd persons.
Parol Evidence Rule does not apply and may
not be invoked by either party to the
litigation against the other, where at least
one of the parties to the suit is not party or
privy to the written agreement and does not
base a claim on the instrument; both parties
to the agreement must be parties to the
suit. (Lechugas vs. CA, 143 SCRA 335)
 Parol Evidence Rule does not specify that
the agreement be a public document; need
not be in any particular form or signed by
the parties; fraud must be corroborated.
(Inciong vs. CA, 257 SCRA 578)
 Contemporaneous conditions not referred to
in the contract cannot be proven by parol;
merely alleging that the contract is subject
to conditions does not ―put‖ the exception
―in issue in the pleadings.‖ (Ortañez vs. CA,
G.R. No. 107372. January 23, 1997)
 Contrary to the claim of respondents, it is
not error for the trial court to rely on parol
evidence, i.e., the oral testimonies of
witnesses Simeon Juan Tong and Jose Juan
Tong, to arrive at the conclusion that an
implied resulting trusts exists. This is
because an implied trust is neither
dependent upon an express agreement nor
required to be evidenced by writing. Article
1457 of our Civil Code authorizes the
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admission of parol evidence to prove their
existence. Parol evidence that is required to
establish the existence of an implied trust
necessarily has to be trustworthy and it
cannot rest on loose, equivocal or indefinite
declarations. (Tong vs. Tiat Kun, G.R. No.
196023, April 21, 2014)
8.I.5. Authentication and proof of
documents
8.I.5.A. Meaning of Authentication
 Authentication is the process of proving the
due execution and genuineness of the
document.
Furthermore, the pertinent provision of the
RP-Hong Kong Extradition Agreement
enumerates the documents that must
accompany the request, as follows: (1) an
indication of the intention to request the
surrender of the person sought; (2) the text
of a warrant of arrest or judgment of
conviction against that person; (3) a
statement of penalty for that offense; and
(4) such further information as would justify
the issue of a warrant of arrest had the
offense been committed, or the person
convicted, within the jurisdiction of the
requested party. That the enumeration does
not specify that these documents must be
authenticated copies, is not a mere omission
of law. This may be gleaned from the fact
that while Article 11(1) does not require the
accompanying documents of a request for
provisional arrest to be authenticated,
Article 9 of the same Extradition Agreement
makes authentication a requisite for
admission in evidence of any document
accompanying a request for surrender or
extradition. In other words, authentication is
required for the request for surrender or
extradition but not for the request for
provisional arrest. (Cuevas vs. Muñoz, G.R. No.
140520, December 18, 2000)
8.I.5.B. Public and Private Documents
Classes of documents (Rule 132, Sec. 19)
Public documents are:
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1) The written official acts, or records of the

official acts of the sovereign authority, Distinctions of public and private
official bodies and tribunals, and public documents:
officers, whether of the Philippines, or of a
foreign country; Public Documents Private Documents
2) Documents acknowledged before a notary Genuineness and Must prove genuineness
public except last wills and testaments; and authenticity presumed. and due execution.
3) Last will and testaments are excluded as Binding against the Binds only parties to the
public documents because they have their parties and 3rd persons. document.
own requirements over and above Certain transactions are
acknowledgment. required to be in a
4) Affidavits are not public documents because public document (e.g.
they only require a jurat. donation of real
5) Public records, kept in the Philippines, of property).
private documents required by law to be
entered therein. 8.I.5.C. When a private writing requires
authentication (Sec. 20, Rule 132)
All other writings are private.
Before any private document offered as
 If a document is intended by law to be a authentic is received in evidence, its due
part of public or official record, then such execution and authenticity must be proved.
private document becomes a public
document. E.g. filing of document with BIR Proof of private writing
turns it into a public document. (Monteverde a) By anyone who saw the document executed
vs. People, 387 SCRA 196) or written; or
b) By evidence of the genuineness of the
 The books making up the civil register and signature or handwriting of the maker.
all documents relating thereto shall be
considered public documents and shall be Any other private document need only be
prima facie evidence of the facts therein identified as that which it is claimed to be. (Rule
contained. (Article 410, Civil Code of the 132, Sec. 20)
Philippines)
A private document or writing is one which is
 As public documents, they are admissible in executed by the parties without the intervention
evidence even without further proof of their of a public notary or a duly authorized public
due execution and genuineness. Thus, the official, by which some disposition or agreement
RTC erred when it disregarded said is proved, evidenced or set forth. Being a private
documents on the sole ground that the document, its due execution and authenticity
petitioner did not present the records must first be established, by one of the parties
custodian of the NSO who issued them to thereto, by the testimony of any one who saw
testify on their authenticity and due the writing executed, by evidence of the
execution since proof of authenticity and genuineness of the handwriting of the maker
due execution was not anymore necessary. thereof. (Ong vs. People of the Philippines, 342
Moreover, not only are said documents SCRA 372)
admissible, they deserve to be given
evidentiary weight because they constitute 8.I.5.D. When evidence of authenticity of a
prima facie evidence of the facts stated private writing is not required
therein. And in the instant case, the facts
stated therein remain unrebutted since 1. When writing is an ancient document (Rule
132, Sec. 21)
neither the private respondent nor the
public prosecutor presented evidence to the
Requisites to be considered an ancient
contrary (Isawasa vs. Gangan, G.R. No. 204169,
September 11, 2013) document:

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a) More than 30 years old.
b) produced from the custody in which it
would naturally be found if genuine; and
c) Unblemished by alterations or
circumstances of suspicion.
2. When writing is a public document or public
record (Rule 132, Sec. 30)
3. Notarial document acknowledged, proved or
certified (Rule 132, Sec. 30)
4. Express or implied admission of authenticity
and due execution of an actionable
document (Rule 8, Sec. 8)
8.I.5.E. How Genuineness of Handwriting
be Proved (RULE 132, SEC. 22)
1) By any witness who believes it to be the
handwriting of such person because:
a) he has seen the person write;
b) has seen the writing purporting to be his
upon which the witness has acted or
been charged;
c) has thus acquired knowledge of the
handwriting of such person.
2) 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.
3) By expert evidence. (Rule 130, Sec. 49)
The test of genuineness ought to be the
resemblance, not the formation of letters in
some other specimens but to the general
character of writing, which is impressed on it as
the involuntary and unconscious result of
constitution, habit or other permanent course,
and is, therefore, itself permanent. The
identification of handwriting should not rest,
therefore, on the apparent similarity or
dissimilarity of one feature but should be based
on the examination of all the basic
characteristics of the handwriting under study.
(People vs. Agresor, G.R. No. 119837-39,
December 9, 1999)
Requisites for admissibility of private
document:
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Offered as authentic – due execution and
authenticity must be proved;
1) Either by anyone who saw the document
executed or written.
2) Evidence of the genuineness of the
signature or handwriting of the maker.
3) Any witness who believes it to be the
handwriting of such person because.
4) He has seen the person write, or has seen
writing purporting to be his.
5) Upon which the witness has acted or been
charged.
6) Has thus acquired knowledge of the
handwriting of such person.
7) A comparison, made by the witness or the
court, with writings.
8) 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.
8.I.5.F. Public Documents as Evidence;
Proof of Official Records (Rule 132, Sec. 23)
 Documents consisting of entries in public
records made in the performance of a duty
by a public officer are prima facie evidence
of the facts therein stated.
 All other public documents are evidence,
even against a 3rd person, of the fact which
gave rise to their execution and of the date
of the latter.
Proof of Official Records (Rule 132, Sec. 24)
The record of public documents of official acts
may be evidenced by:
1) An official publication thereof.
2) A copy attested by the officer having the
legal custody of the record, or his deputy,
and if the record is not kept in the
Philippines accompanied by a certificate that
such officer has the custody made by:
Secretary of the embassy or legation consul
general, consul vice consul, or consular
agent; or any officer in the foreign service of
the Philippines stationed in the foreign
country in which the record is kept
authenticated by the seal of his office.
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While a public document does not require the
authentication imposed upon a private
document, there is a necessity for showing to
the court that indeed a record of the official
exists.
Importance of knowing whether a document is
public or private is to determine how they may
be presented as evidence in court.
Procedure in obtaining copy of foreign
official acts:
1) Get a copy from the legal custodian;
2) Have the legal custodian attest that the
copy is correct; and
3) Have the Philippine consul certify that the
person in #2 is the legal custodian of a copy
of official act.
8.I.5.G. Attestation of a Copy (Rule 132, Sec.
25)
Whenever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance:
1) That the copy is a correct copy of the
original, or a specific part thereof, as the
case may be;
2) 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.
Irremovability of public record
General Rule: Any public record, an official
copy of which is admissible in evidence, must
not be removed from the office in which it is
kept.
Exception: Upon order of a court where the
inspection of the record is essential to the just
determination of a pending case. (Rule 132, Sec.
26)
8.I.5.H. Public Record of a Private
Document
Public record of a private document may be
proved by:
1) The original record; or
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2) A copy thereof attested by the legal
custodian of the record with an appropriate
certificate that such officer has the custody
thereof. (Rule 132, Sec. 27)
8.I.5.I. Proof of Lack of Record (Rule 132,
Sec. 28)
1. 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;
2. Accompanied by a certificate that such
officer is supposed to have custody.
3. If a notarized document is lost, get
certifications of loss from:
a) Notary public;
b) Bureau of archives; and
c) Clerk of court who commissioned the
notary public.
8.I.5.J. How Judicial Record Impeached
Any judicial record may be impeached by
evidence of:
1) Want of jurisdiction in the court or judicial
officer.
2) Collusion between the parties; or
3) Fraud in the party offering the record, in
respect to the proceedings. (Rule 132, Sec.
29)
8.I.5.K. Proof of Notarial Documents (Rule
132, Sec. 30)
 Every instrument duly acknowledged or
proved and certified as provided by law may
be presented in evidence without further
proof.
 The certificate of acknowledgment is prima
facie evidence of the execution of the
instrument or document involved.
8.I.5.L. How to Explain Alterations in
Document (Rule 132, Sec. 31)
A 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 upon showing that:
1) The alteration was made by another,
without his concurrence;
2) Made with the consent of the parties
affected by it;
3) It is otherwise properly or innocently made;
or
4) The alteration did not change the meaning
or language of the instrument.
5) Failure to do otherwise will render the same
inadmissible in evidence.
Reminder: There shall be no difference
between sealed and unsealed private documents
insofar as their admissibility as evidence is
concerned. (Rule 132, Sec. 32)
8.I.5.M. Documentary Evidence in an
Unofficial Language (Rule 132, Sec. 33)
 Shall not be admitted as evidence, unless
accompanied with a translation into English
or Filipino.
 Parties or their attorneys are directed to
have such translation prepared before trial.
8.J. TESTIMONIAL EVIDENCE
8.J.1. Qualification Of Witnesses (Sec. 20,
Rule 130)
Witness is a person who testifies in a case or
gives evidence before a judicial tribunal.
Qualification Of Witnesses
1) Can perceive; and perceiving, can make
known their perception to others.
2) Must take either oath or affirmation; and
3) Must not possess the disqualifications
imposed by law or the rules.
 With exceptions provided in the Rules of
Court, all persons who can perceive, and
perceiving, can make known their
perception to others, may be witnesses.
That is even buttressed by the Rule on
Examination of a Child Witness which
specifies that every child is presumed
qualified to be a witness. To rebut this
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presumption, the burden of proof lies on the
party challenging the child's competence.
Only when substantial doubt exists
regarding the ability of the child to perceive,
remember, communicate, distinguish truth
from falsehood, or appreciate the duty to
tell the truth in court will the court,
motuproprio or on motion of a party,
conduct a competency examination of a
child. Thus, petitioners‘ flimsy objections on
Rachel‘s lack of education and inability to
read and tell time carry no weight and
cannot overcome the clear and convincing
testimony of Rachel as to who killed her
father. (People of the Philippines vs. Ibañez,
G.R. No. 197813, September 25, 2013)
8.J.2. Competency Versus Credibility Of A
Witness
Competency of a witness refers to the basic
qualification of a witness as his capacity to
perceive and to communicate the same to
others. It also includes the absence of any of
the qualifications imposed upon a witness.
Credibility of the witness refers to the
believability of the witness and has nothing to
do with the law or the rules. It refers to the
weight and the trustworthiness or reliability of
the testimony.
8.J.3. Disqualifications of Witnesses
Persons disqualified to be a witness:
1) Persons disqualified by reason of mental
incapacity or immaturity (Rule 130, Sec 21)
2) Persons disqualified by reason of marriage
(Rule 130, Sec 22)
3) Persons disqualified by reason of death or
insanity of adverse party (Rule 130, Sec 23)
4) Persons disqualified on ground of privileged
communication (Rule 130, Sec 24)
Note: With regard to the subject matter of the
testimony, we must make a distinction between
absolute disqualifications and relative
disqualifications. Objections based on absolute
disqualifications may be raised upon the calling
of the disqualified witness. Objections based on
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relative disqualifications may be raised when it
becomes apparent that the subject matter of the
testimony covers inadmissible matters.
 The acceptance of an incompetent witness
to testify in a civil suit, as well as the
allowance of improper questions that may
be put to him while on the stand is a matter
resting in the discretion of the litigant. He
may assert his right by timely objection or
he may waive it, expressly or by silence. In
any case the option rests with him. Once
admitted, the testimony is in the case for
what it is worth and the judge has no power
to disregard it for the sole reason that it
could have been excluded, if it had been
objected to, nor to strike it out on its own
motion. (Razon vs. Intermediate Appellate
Court, G.R. No. 74306, March 16, 1992 quoting
Cruz vs. Court of Appeals, 192 SCRA 209, 1990)
Absolute disqualifications:
1) Cannot perceive (Rule 130, Sec 20);
2) Cannot make known their perception to
others (Rule 130, Sec 20);
3) Those disqualified by reason of insanity or
immaturity;
4) Marital disqualification (Rule 130. Sec 22);
and
5) Parental and filial privilege (Rule 130, Sec 25).
Relative disqualifications:
1) Dead man‘s statute (Rule 130, Sec 23);
2) Marital communication privilege (Rule 130,
Sec 24(a)];
3) Attorney-client privilege (Rule 130, Sec 24[b]);
4) An attorney's secretary, stenographer, or
clerk concerning any fact the knowledge of
which has been acquired in such capacity
(Rule 130, Sec 24[b]);
5) Physician-Patient Privilege (Rule 130, Sec
24[c]);
6) Priest-Penitent Privilege (Rule 130, Sec 24[d]);
and
7) State Secrets (Rule 130, Sec 24[e]).
Not grounds for disqualification:
1) Religious belief
2) Political belief
3) Interest in the outcome of the case; or
4) Conviction of a crime, unless otherwise
provided by law, except:
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5) A state witness must not have been
convicted of any crime involving moral
turpitude (Rule 119, Sec. 17 [e])
Competency of witness refers to the legal
fitness or ability of a witness to be heard on the
trial of a case.
When to raise objection to competency:
At any time during the examination or cross-
examination; but it should be made as soon as
the facts tending to show incompetency are
discovered.
Test of competency:
Whether the individual has sufficient
understanding to appreciate the nature and
obligation of an oath, and sufficient capacity to
observe and describe the facts in regard to
which he is called to testify.
Voir dire examination is a preliminary
examination conducted by the trial judge where
the witness is duly sworn to answer as to his
competency. This is conducted by asking leading
questions.
Discharge of accused to be a state witness
Requisites:
1) Absolute necessity of testimony;
2) No other direct evidence available;
3) Testimony can be substantially corroborated
in its material points;
4) Accused does not appear to be the most
guilty;
5) He should not, at any time, been convicted
of a crime involving moral turpitude.
8.J.3.A. Disqualification by Reason of
Mental incapacity or immaturity
The following persons cannot be witnesses:
1) 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;
2) 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 (Sec. 21).
3) Regardless of the nature or cause of mental
disability, the test of competency to testify is
as to whether the individual has sufficient
understanding to appreciate the nature and
obligation of an oath and sufficient capacity
to observe and describe correctly the facts
in regard to which he is called to testify.
Basic requirements of a child„s
competency as a witness:
1) Capacity of observation;
2) Capacity of recollection;
3) Capacity of communication.
 In ascertaining whether a child is of
sufficient intelligence according to the
foregoing requirements, it is settled rule that
the trial court is called upon to make such
determination (People vs. Mendoza, 68 SCAD
552, February 22, 1996).
 To be sure, modern rules on evidence have
downgraded mental incapacity as a ground
to disqualify a witness. As observed by
McCormick, the remedy of excluding such a
witness who may be the only person
available who knows the facts, seems inept
and primitive. Our rules follow the modern
trend of evidence. (People of the Philippines vs.
Golimlim, G.R. No. 145225, April 2, 2004)
 That Evelyn is a mental retardate does not
disqualify her as a witness nor render her
testimony bereft of truth. (People of the
Philippines vs. Golimlim, G.R. No. 145225, April
2, 2004)
 A mental retardate or a feebleminded
person is not, per se, disqualified from being
a witness, her mental condition not being a
vitiation of her credibility. It is now
universally accepted that intellectual
weakness, no matter what form it assumes,
is not a valid objection to the competency of
a witness so long as the latter can still give
a fairly intelligent and reasonable narrative
of the matter testified to. (People of the
Philippines vs. Golimlim, G.R. No. 145225, April
2, 2004 quoting People of the Philippines vs.
Trelles, 340 SCRA 652, 2000)
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8.J.3.B. Disqualification by Reason of
Marriage (SEC. 22, RULE 130)
Requisites:
1) Marriage subsists;
2) A spouse is a litigant;
3) No consent from the spouse-litigant; and
4) Not a civil case by one against the other, or
a criminal case for a crime committed by
one against the other or the latter's direct
descendants or ascendants.
 The law insures absolute freedom of
communication between the spouses by
making it privileged. Neither husband nor
wife may testify for or against the other
without the consent of the affected spouse
while the marriage subsists. Neither may be
examined without the consent of the other
as to any communication received in
confidence by one from the other during the
marriage, save for specified exceptions. But
one thing is freedom of communication;
quite another is a compulsion for each one
to share what one knows with the other.
And this has nothing to do with the duty of
fidelity that each owes to the other. (Zulueta
vs. Court of Appeals, G.R. No. 107383, February
20, 1996)
 But like all other general rules, the marital
disqualification rule has its own exceptions,
both in civil actions between the spouses
and in criminal cases for offenses committed
by one against the other. Like the rule itself,
the exceptions are backed by sound reasons
which, in the excepted cases, outweigh
those in support of the general rule. For
instance, where the marital and domestic
relations are so strained that there is no
more harmony to be preserved nor peace
and tranquility which may be disturbed, the
reason based upon such harmony and
tranquility fails. In such a case, identity of
interests disappears and the consequent
danger of perjury based on that identity is
non-existent. Likewise, in such a situation,
the security and confidences of private life,
which the law aims at protecting, will be
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nothing but ideals, which through their
absence, merely leave a void in the unhappy
home. (Alvarez vs. Ramirez, G.R. No. 143439,
October 14, 2005 citing People of the Philippines
vs. Francisco, G.R. No. L-568, 78 Phil. 694, July
16, 1947)
 The rule that the injury must amount to a
physical wrong upon the person is too
narrow; and the rule that any offense
remotely or indirectly affecting domestic
harmony comes within the exception is too
broad. The better rule is that, when an
offense directly attacks, or directly and
vitally impairs, the conjugal relation, it
comes within the exception to the statute
that one shall not be a witness against the
other except in a criminal prosecution for a
crime committee (by) one against the other.
(People of the Philippines vs. Castañeda, Jr., G.R.
No.L-46306, February 27, 1979 quoting Ordoño
vs. Daquigan, G.R. No. L-39012,62 SCRA 270,
January 31, 1975 quoting Cargill vs. State, 35
ALR, 133, 220, Pac 64, 26 OkL 314)
 It should be stressed that as shown by the
records, prior to the commission of the
offense, the relationship between petitioner
and his wife was already strained. In fact,
they were separated de facto almost six
months before the incident. Indeed, the
evidence and facts presented reveal that the
preservation of the marriage between
petitioner and Esperanza is no longer an
interest the State aims to protect. (Alvarez
vs. Ramirez, G.R. No. 143439, October 14, 2005)
Reasons given for the rule are: (Alvarez vs.
Ramirez, G.R. No. 143439, October 14, 2005 citing
People of the Philippines vs. Francisco, G.R. No. L-
568, 78 Phil. 694, July 16, 1947)
1. There is identity of interests between
husband and wife;
2. If one were to testify for or against the
other, there is consequent danger of
perjury;
3. The policy of the law is to guard the security
and confidences of private life, even at the
risk of an occasional failure of justice, and to
prevent domestic disunion and unhappiness;
and
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4. Where there is want of domestic tranquility
there is danger of punishing one spouse
through the hostile testimony of the other.
Example of offenses which impair conjugal
relation:
1. Falsification of public document forging
wife‘s signature
2. Rape of their common daughter
3. Committing arson of the house of the sister
of the wife knowing that the wife was in the
house
 The act complained of as constituting the
crime of Falsification of Public Document is
the forgery by the accused of his wife's
signature in a deed of sale, thereby making
it appear therein that said wife consented to
the sale of a house and lot belonging to
their conjugal partnership when in fact and
in truth she did not. It must be noted that
had the sale of the said house and lot, and
the signing of the wife's name by her
husband in the deed of sale, been made
with the consent of the wife, no crime could
have been charged against said husband
Clearly, therefore, it is the husband's breach
of his wife's confidence which gave rise to
the offense charged. And it is this same
breach of trust which prompted the wife to
make the necessary complaint with the
Office of the Provincial Fiscal which,
accordingly, filed the aforesaid criminal case
with the Court of First Instance of
Pampanga. To rule, therefore, that such
criminal case is not one for a crime
committed by one spouse against the other
is to advance a conclusion which completely
disregards the factual antecedents of the
instant case. (People of the Philippines vs.
Castañeda, Jr., G.R. No. L-46306, February 27,
1979)
 Applying the foregoing criterion in said case
of Ordoño v. Daquigan this Court held that
the rape committed by the husband of the
witness-wife against their daughter was a
crime committed by the husband against his
wife. Although the victim of the crime
committed by the accused in that can was
not his wife but their daughter, this Court,
nevertheless, applied the exception for the
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reason that said criminal act "Positively Who may object:

undermine (d) the connubial relationship.
(People of the Philippines vs. Castañeda, Jr., G.R.
No. L-46306, February 27, 1979)
 Obviously, the offense of arson attributed to
petitioner, directly impairs the conjugal
relation between him and his wife
Esperanza. His act, as embodied in the
Information for arson filed against him,
eradicates all the major aspects of marital
life such as trust, confidence, respect and
love by which virtues the conjugal
relationship survives and flourishes. (Alvarez
vs. Ramirez, G.R. No. 143439, October 14, 2005)
Distinction between Marital
Disqualification and Marital Privilege
Only the spouse-party may object on the
testimony and not the spouse who is offered as
a witness.
 A wife who is a co-defendant of her
husband in a case of collusive fraud, where
their interests are not separate, cannot be
examined as a hostile witness by the
adverse party. (Lezama vs. Rodriguez, 23 SCRA
1166)
 Another exception to the Marital
Disqualification Rule: when the relations
(harmonious relationship/domestic peace)
the State seeks to protect is already
strained. (Alvarez vs. Ramirez, 473 SCRA 72)

Marital 8.J.3.C. Disqualification by Reason of

Marital Privilege
Disqualification (Sec. 24) Death or Insanity of Adverse Party (Dead
(Sec. 22)
Covers all matters Covers only those
Man‟s Statute or Survivorship Rule) (SEC.
regardless of source communicated by one
23, RULE 130)
spouse to another
Applies during the Applies during and after Applies only to a civil or special proceeding.
marriage the marriage
A spouse must be a A spouse need not be a Requisites:
litigant litigant
Invoked when a spouse Invoked when the 1) The witness is a party or assignor of a party
is called to testify testimony appears to to a case or persons in whose behalf a case
cover privileged matters is prosecuted;
Absolute Relative disqualification 2) That the action is against an executor or
disqualification
administrator or other representative of a
deceased person or a person of unsound
Note: The exceptions under the marital
mind;
disqualification and marital communications rule 3) That the subject matter of the action is a
are the same. claim or demand against the estate of the
deceased person or against person of
Marrying the witness: unsound mind; and
4) That his testimony refers to any matter of
An accused can effectively ―seal the lips‖ of a fact which occurred ante lite motam (before
witness by marrying the witness. As long as the death of such deceased person or
marriage is in existence at the time of the trial, before such person became of unsound
the witness-spouse cannot be compelled to mind).
testify even when the crime charged is against
the witness, and even though the marriage was Assignor herein refers to an assignor of a
entered into for the express purpose of cause of action which has already arisen and not
suppressing the testimony. the assignor of a right before any cause of
action accrued. (Sunga-Chan vs. Chua, G.R. No.
143340, August 15, 2001)

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Purpose of the Rule: Inasmuch as the statutes are designed to

 To guard against the temptation to give
false testimony on the part of the surviving
party, and to put the parties to the suit in
equal footing with regard to the opportunity
to produce evidence (since adverse party
can no longer rebut testimony).
protect the interest of a deceased or insane
person, they do not exclude testimonies which
are favorable to the representative of such
person.
When the “dead man‟s statute” or
“survivorship rule” does not apply:

The reason for the rule is that if persons 1) Testimony of mere witnesses who are
having a claim against the estate of the neither party plaintiffs, nor their assignors,
deceased or his properties were allowed to nor persons in whose behalf a case is
testify as to the supposed statements made prosecuted;
by him (deceased person), many would be 2) If the plaintiff is the executor or
tempted to falsely impute statements to administrator or other representative of a
deceased persons as the latter can no deceased person, of the person of unsound
longer deny or refute them, thus unjustly mind;
subjecting their properties or rights to false 3) In an action against a partnership;
or unscrupulous claims or demands. The 4) If the person/s mentioned under the rule
purpose of the law is to "guard against the files a counterclaim;
temptation to give false testimony in regard 5) When the testimony refers to fraudulent
to the transaction in question on the part of transactions committed by the persons
the surviving party." (Razon vs. Intermediate mentioned in the rule;
Appellate Court, G.R. No. 74306, March 16, 1992 6) When there is a waiver;
quoting Tongco vs. Vianzon, 50 Phil. 698, 1927; 7) When the testimony of a plaintiff refers to
Go Chi Gun . vs. Co Cho,1955) the non-occurrence of a fact because in that
case, the plaintiff does not testify on the
Distinctions between Dead Man‟s Statute occurrence of a fact but on its non-
and Marital Disqualification Rule occurrence;
8) In cadastral cases.
Marital Disqualification
Dead Man‟s Statute
Rule
 The rule, however, delimits the prohibition it
Only partial It is a complete and
disqualification as the absolute disqualification.
contemplates in that it is applicable to a
witness is only case against the administrator or its
prohibited from representative of an estate upon a claim
testifying on the against the estate of the deceased person.
matters therein (Razon vs. Intermediate Appellate Court, G.R.
specified. No. 74306, March 16, 1992 citing Tongco vs.
Applies only to a civil Applies to a civil or Vianzon, 50 Phil. 698, 1927)
case or special criminal case, subject only
proceeding over the to the 2 exceptions  If the witness sought to be disqualified is
estate of a deceased provided therein: not the plaintiff (e.g. disinterested 3rd
or insane. in a civil case by one party), the dead man‘s statute is not
against the other; or applicable. (Reyes vs. Wells, 54 Phil 102)
in a criminal case for a
crime committed by one
against the other or the  Mere witnesses not parties to the case are
latter‘s direct descendants not disqualified by the dead man‘s statute.
or ascendant. Furthermore, the rule requires that the
defendant must be the estate. It does not
Facts favorable to the deceased are not apply where the heirs are being sued in
prohibited: their individual capacities. ―Representatives‖
are only those who, like the executor, are
sued in their representative, not personal,

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capacity. (Guerrero vs. St. Clare‘s Realty 124
SCRA 553)
 First, petitioners filed a compulsory
counterclaim11 against respondents in their
answer before the trial court, and with the
filing of their counterclaim, petitioners
themselves effectively removed this case
from the ambit of the "Dead Man's Statute".
Well entrenched is the rule that when it is
the executor or administrator or
representatives of the estates that sets up
the counterclaim, the plaintiff, herein
respondent, may testify to occurrences
before the death of the deceased to defeat
the counterclaim. Moreover, as defendant in
the counterclaim, respondent is not
disqualified from testifying as to matters of
facts occurring before the death of the
deceased, said action not having been
brought against but by the estate or
representatives of the deceased. (Sunga-
Chan vs. Chua, G.R. No. 143340, August 15,
2001)
 Second, the testimony of Josephine is not
covered by the "Dead Man's Statute" for the
simple reason that she is not "a party or
assignor of a party to a case or persons in
whose behalf a case is prosecuted." Records
show that respondent offered the testimony
of Josephine to establish the existence of
the partnership between respondent and
Jacinto. Petitioners' insistence that
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Josephine is the alter ego of respondent
does not make her an assignor because the
term "assignor" of a party means "assignor
of a cause of action which has arisen, and
not the assignor of a right assigned before
any cause of action has arisen." Plainly then,
Josephine is merely a witness of
respondent, the latter being the party
plaintiff. (Sunga-Chan vs. Chua, G.R. No.
143340, August 15, 2001)
 The dead man‘s statute does not operate to
close the mouth of a witness as to any
matter of fact coming to his knowledge in
any other way than through personal
dealings with the deceased person, or
communication made by the deceased to
the witness. (Bordalba vs. Court of Appeals,
G.R. No. 112443, January 25, 2002)
 Since the claim of private respondents and
the testimony of their witnesses in the
present case is based, inter alia, on the
1947 Deed of Extra-judicial Partition and
other documents, and not on dealings and
communications with the deceased, the
questioned testimonies were properly
admitted by the trial court. (Bordalba vs.
Court of Appeals, G.R. No. 112443, January 25,
2002)
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8.J.3.D Disqualification by Reason of
Privileged Communication(SEC. 24, RULE 130)
Privileged communications:
1) Marital Privilege [Rule 130, Sec 24 (a)];
2) Attorney-Client [Rule 130, Sec 24(b)];
3) Physician-Patient [Rule 130, Sec 24) (c)];
4) Priest-Penitent [Rule 130, Sec 24) (d)];
5) State Secrets [Rule 130, Sec 24(e)];
6) The guardian ad litem shall not testify in any
proceeding concerning any information,
statement, of 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
[Sec. 5(e) of the Rule on Examination of a Child
Witness]
Nota Bene:
 Editors may not be compelled to disclose the
source of published news. (RA 53, as
amended by RA 1477, Sec 1);
 Voters may not be compelled to disclose for
whom they voted;
 Trade secrets (Cocoland Development vs. NLRC
GRN 98458 July 17, 1996);
 Bank Deposits (RA 1405).
General Rule: Disqualification by reason of
privileged communication applies to both civil
and criminal case except as to the doctor-patient
privilege, which is applicable only in civil cases.
Exception: Unless waived, the disqualification
under Section 24 remains even after the various
relationships therein have ceased to exist.
8.J.3.D.A Marital privilege, Husband and
Wife (Par. (A), Sec. 24).
Requisites:
1) There must be a valid marriage between
husband and wife;
2) There is communication received in
confidence by one from the other;
3) The confidential communication was
received during the marriage;
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4) The spouse against whome such eveidence
is being offered has not give his or her
consent to such testimony.
Communications overheard by third persons
without knowledge of spouses are still
confidential but the third party is not disqualified
to testify.
Where there is collusion and voluntary
disclosure to third party, the latter become an
agent and cannot testify.
Communication in furtherance of fraud and
crime is not privileged.
There is a presumption of confidentiality on all
communications between husband and wife.
Exceptions:
1) In a civil case by one against the other.
2) In a criminal case for a crime committed by
one against the other or the latter's direct
descendants or ascendants.
3) When the communication was not intended
to be kept in confidence, like the husband‘s
dying declaration for instance. (U.S. vs.
Antipolo, 37 Phil 726)
Marital Disqualification Rule (Rule 130, Sec.
22)
 The marital disqualification rule refers to all
matters, whether or not communicated by
one spouse to the other. It applies only
during the existence of the marriage. It can
be invoked only if one spouse is a party to
the action. It is an absolute disqualification
and can be invoked the moment that one
spouse is called to testify.
Marital Privilege Rule, being a rule of
evidence, can be waived for failure of the
claimant to object timely to its presentation
or by any conduct that may be construed as
an implied consent. (Lacurom vs. Jacoba, 484
SCRA 206)
 Where the privilege communication from
one spouse to the other comes into the
hands of a 3rd party, without collusion or
voluntary disclosure on the part of either
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spouse, it is not privileged; illegality of 2) Communication must have been made in

seizure must be raised by motion before trial confidence;
for return of letter; unanswered letter is 3) The communication or advice must have
inadmissible (People vs. Carlos, 47 Phil. 626) been given either in the course of the
professional employment or with a view to
 The law insures absolute freedom of professional employment.
communication between the spouses by
making it privileged. Neither husband nor The phrase ―with a view to‖ includes those
wife may testify for or against the other communication made during consultation
without the consent of the affected spouse preparatory to professional employment.
while the marriage subsists. Neither may be
examined without the consent of the other Preliminary communication made for the
as to any communication received in purpose of creating attorney-client relationship
confidence by one from the other during the is within the privilege.
marriage, save for specified exceptions. But
one thing is freedom of communication; The relationship between the attorney and the
quite another is a compulsion for each one client is said to exist where a person employs
to share what one knows with the other. the professional services of an attorney or seeks
And this has nothing to do with the duty of professional guidance, even though the attorney
fidelity that each owes to the other . (Zulueta declines to handles the case.
vs. Court of Appeals, G.R. No. 107383, February
20, 1996) However, if the communications were not made
for the purpose of creating that relationship,
Spousal Immunity (Sec 22) vs Marital they will not be covered by the privilege.
Privilege (Sec 24(a))
Not applicable:
Spousal Immunity (Sec Marital Privilege (Sec
22) 24(a)) 1) When intended to be made public;
Can be Invoked only if Can be claimed 2) When intended to be communicated to
one of the spouses is a whether or not the others;
party to the action spouse is a party to 3) When received from third persons not acting
the action in behalf of or as agents of the client;
Marriage is existing at Can be claimed even 4) When intended for an unlawful purpose;
the time the testimony after the marriage has and
is offered been dissolved. 5) When made in the presence of third parties
Constitute a total Applies only to who are strangers to the attorney-client
prohibition against any confidential relationship.
testimony for or communications
against the spouse of between the spouses. Note: The lawyer-client privilege extends to
the witness the attorney‘s secretary, stenographer, or
clerk. Hence, in this case, the rule that ―if
made in the presence of 3rd persons, it is
8.J.3.D.B. Attorney-client privilege: (Par. not considered confidential‖ is not
(B), Sec. 24, Rule 130) applicable.

Requisites: General Rule: A lawyer may not invoke the

privilege and refuse to divulge the name or
1) There must be a communication made by identify of his client.
the client to the attorney or an advice given
by the attorney to his client;

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Exceptions:
1) Where a strong possibility exists that
revealing client‘s name would implicate
the client in the very activity for which
he sought the lawyer‘s advice.
2) Where disclosure would open the client
to civil liability.
3) Where the prosecutor have no case
against the client unless by revealing
the client‘s name, the said name would
form the chain of testimony necessary
to convict an individual for a crime.
4) The privilege against disclosure of
confidential communications or
information is limited only to
communications which are legitimately
and properly within the scope of a
lawful employment of a lawyer. It does
not extend to those made in
contemplation of a crime or perpetration
of fraud.
 If the unlawful purpose is avowed, as in this
case, the complainant‘s alleged intention to
bribe government officials in relation to his
case, the communication is not covered by
the privilege as the client does not consult
the lawyer professionally. It is not within the
profession of a lawyer to advise a client as
to how he may commit a crime as a lawyer
is not a gun for hire. Thus, the attorney-
client privilege does not attach, there being
no professional employment in the strict
sense (Genato vs. Silapan, Adm. Case. No. 4078,
July 14, 2003).
 The proscription against representation of
conflicting interests applies to a situation
where the opposing parties are present
clients in the same action or in an unrelated
action. It is of no moment that the lawyer
would not be called upon to contend for one
client that which the lawyer has to oppose
for the other client, or that there would be
no occasion to use the confidential
information acquired from one to the
disadvantage of the other as the two actions
are wholly unrelated. It is enough that the
opposing parties in one case, one of whom
would lose the suit, are present clients and
410 CENTER FOR LEGAL EDUCATION AND RESEARCH
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the nature or conditions of the lawyer's
respective retainers with each of them
would affect the performance of the duty of
undivided fidelity to both clients. (Samala vs.
Valencia, A.C. No. 5439, January 22, 2007
quoting Gonzales vs. Cabucana, Jr. , A.C. No.
6836, 479 SCRA 320, January 23, 2006, citing
Quiambao vs. Bamba, A.C. No. 6708, 468 SCRA
1, August 25, 2005)
 The reason for the prohibition is found in
the relation of attorney and client, which is
one of trust and confidence of the highest
degree. A lawyer becomes familiar with all
the facts connected with his client's case. He
learns from his client the weak points of the
action as well as the strong ones. Such
knowledge must be considered sacred and
guarded with care. (Samala vs. Valencia, A.C.
No. 5439, January 22, 2007)
 A lawyer may not, without being guilty of
professional misconduct, act as counsel for a
person whose interest conflicts with that of
his present or former client. He may not also
undertake to discharge conflicting duties any
more than he may represent antagonistic
interests. This stern rule is founded on the
principles of public policy and good taste. It
springs from the relation of attorney and
client which is one of trust and confidence.
Lawyers are expected not only to keep
inviolate the client's confidence, but also to
avoid the appearance of treachery and
double-dealing for only then can litigants be
encouraged to entrust their secrets to their
lawyers, which is of paramount importance
in the administration of justice. (Samala vs.
Valencia, A.C. No. 5439, January 22, 2007)
 An attorney owes loyalty to his client not
only in the case in which he has represented
him but also after the relation of attorney
and client has terminated. The bare
attorney-client relationship with a client
precludes an attorney from accepting
professional employment from the client's
adversary either in the same case or in a
different but related action. A lawyer is
forbidden from representing a subsequent
client against a former client when the
subject matter of the present controversy is

related, directly or indirectly, to the subject
matter of the previous litigation in which he
appeared for the former client. (Samala vs.
Valencia, A.C. No. 5439, January 22, 2007)
 We held in Nombrado v. Hernandez that the
termination of the relation of attorney and
client provides no justification for a lawyer
to represent an interest adverse to or in
conflict with that of the former client. The
reason for the rule is that the client's
confidence once reposed cannot be divested
by the expiration of the professional
employment. Consequently, a lawyer should
not, even after the severance of the relation
with his client, do anything which will
injuriously affect his former client in any
matter in which he previously represented
him nor should he disclose or use any of the
client's confidences acquired in the previous
relation. (Samala vs. Valencia, A.C. No. 5439,
January 22, 2007)
 A lawyer may reveal secrets when necessary
to collect fees or to defend himself, his
associates or employees. (Rule 21.01[c], Code
of Professional Responsibility)
8.J.3.D.C. Physician-patient privilege (Par.
(C), Sec. 24, Rule 130)
Requisites:
1) The physician is authorized to practice
medicine, surgery or obstetrics;
2) The information was acquired or the advice
or treatment was given by him in his
professional capacity for the purpose of
treating or curing the patient;
3) The information, advice or treatment, if
revealed, would blacken the reputation of
the patient;
4) The privilege is invoked in a civil case,
whether the patient is a party thereto or
not.
Note: The privilege survives the death of the
patient.
Not applicable:
1) When the communication was not given in
confidence.
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2) When the communication is irrelevant to the
professional employment.
3) Then the communication was made for an
unlawful purpose.
4) When the information was intended to be
made public.
5) When there was a waiver of the privilege
either by provisions of contract or law.
6) When the doctor is a medico-legal. The
physician may be said to be acting in a
professional capacity when he attends to the
patient for either curative or preventive
treatment.
7) The physician-patient privilege is not
violated by permitting physician to give
expert testimony regarding hypothetical
facts. (Lim vs. CA, 214 SCRA 273)
8) Non-physician testimony on a medical
psychologist‘s report is not covered by the
physician-patient privilege. (Krohn vs. CA, 233
SCRA 146)
 The physician-patient privileged
communication rule essentially means that a
physician who gets information while
professionally attending a patient cannot in
a civil case be examined without the
patient‘s consent as to any facts which
would blacken the latter‘s reputation. This
rule is intended to encourage the patient to
open up to the physician, relate to him the
history of his ailment, and give him access
to his body, enabling the physician to make
a correct diagnosis of that ailment and
provide the appropriate cure. Any fear that a
physician could be compelled in the future
to come to court and narrate all that had
transpired between him and the patient
might prompt the latter to clam up, thus
putting his own health at great risk. (Chan
vs. Chan, G.R. No. 179786, July 24, 2013)
 To allow, however, the disclosure during
discovery procedure of the hospital
records—the results of tests that the
physician ordered, the diagnosis of the
patient‘s illness, and the advice or treatment
he gave him—would be to allow access to
evidence that is inadmissible without the
patient‘s consent. Physician memorializes all
these information in the patient‘s records.
Disclosing them would be the equivalent of
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compelling the physician to testify on
privileged matters he gained while dealing
with the patient, without the latter‘s prior
consent. (Chan vs. Chan, G.R. No. 179786, July
24, 2013)
8.J.3.D.D. Priest-penitent privilege: (Par.
(D), Sec. 24, Rule 130)
Requisites:
1. The confession must be made to the
minister or priest in his professional
character and in the course of discipline
enjoined by the rules of practice of the
denomination to which the priest of minister
belongs; and
2. The confession must be of a penitential
character, that is confession of sins with a
view to obtaining pardon and spiritual
advice or assistance
3. Communication made not in the course of
religious discipline but in contemplation of a
crime is NOT privileged.
―Priest‖ does not mean that he is an ordained
priest. Mike Velarde and Ely Soriano fall under
this category; even the Mormons roaming
around.A spiritual adviser does not necessarily
mean ―Priest‖ as used here.
8.J.3.D.E.State secrets, Public Officers:
(Par. (E), Sec. 24, Rule 130)
Requisites:
1) The communication must have been made
to a public officer;
2) The communication was made in official
confidence; and
3) Public interest would suffer by the disclosure
of the communication.
Note: The holder of the privilege is the
government which acts through the public
officer.
 Absent a claim of need to protect military,
diplomatic or sensitive national security
secrets, executive privilege cannot prevail
over due process. (US vs. Nixon, 418 U.S. 683)
 At common law a governmental privilege
against disclosure is recognized with respect
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to state secrets bearing on military,
diplomatic and similar matters. This privilege
is based upon public interest of such
paramount importance as in and of itself
transcending the individual interests of a
private citizen, even though, as a
consequence thereof, the plaintiff cannot
enforce his legal rights. (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995)
 The expectation of a President to the
confidentiality of his conversations and
correspondence, like the claim of
confidentiality of judicial deliberations, for
example, has all the values to which we
accord deference for the privacy of all
citizens and, added to those values, is the
necessity for protection of the public interest
in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A
President and those who assist him must be
free to explore alternatives in the process of
shaping policies and making decisions and
to do so in a way many would be unwilling
to express except privately. These are the
considerations justifying a presumptive
privilege for Presidential communications.
The privilege is fundamental to the
operation of the government and
inextricably rooted in the separation of
powers under the Constitution. (Almonte vs.
Vasquez, G.R. No. 95367, May 23, 1995 quoting
United States vs. Nixon, 418 U.S. 683, 1973)
 Judicial control over the evidence in a case
cannot be abdicated to the caprice of
executive officers. Yet we will not go so far
as to say that the court may automatically
require a complete disclosure to the judge
before the claim of privilege will be accepted
in any case. It may be possible to satisfy the
court, from all the circumstances of the
case, that there is a reasonable danger that
compulsion of the evidence will expose
military matters which, in the interest of
national security, should not be divulged.
When this is the case, the occasion for the
privilege is appropriate, and the court
should not jeopardize the security which the
privilege is meant to protect by insisting
upon an examination of the evidence, even
by the judge alone, in chambers.

In each case, the showing of necessity
which is made will determine how far the
court should probe in satisfying itself that
the occasion for invoking the privilege is
appropriate. Where there is a strong
showing of necessity, the claim of privilege
should not be lightly accepted, but even the
most compelling necessity cannot overcome
the claim of privilege if the court is
ultimately satisfied that military secrets are
at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made
under the circumstances of this case, will
have to prevail. (Almonte vs. Vasquez, G.R. No.
95367, May 23, 1995 quoting United States vs.
Reynolds, 345 U.S. 1, 1953)
 The confidentiality of judicial deliberations"
mentioned in the opinion of the Court
referred to the fact that Justices of the U.S.
Supreme Court and judges of lower federal
courts have traditionally treated their
working papers and judicial notes as private
property. A 1977 proposal in the U.S.
Congress that Justices and judges of lower
federal courts "should be encouraged to
make such arrangements as will assure the
preservation and eventual availability of
their personal papers, especially the deposit
of their papers in the same depository they
select for [their] Public Papers" was rebuffed
by the Justices who, in a letter to the
Chairman of the Subcommittee on
Regulation and Government Information of
the U.S. Senate, referred to "difficult
concerns respecting the appropriate
separation that must be maintained
between the legislative branch and this
Court." (Almonte vs. Vasquez, G.R. No. 95367,
May 23, 1995 citing Letter of Chief Justice
William H. Rehnquist dated June 7, 1993 to Sen.
Joseph I. Lieberman, Chairman, Subcommittee
on Regulation and Government Information, U.S.
Senate)
 There are, in addition to such privileges,
statutorily-created ones such as the
Government's privilege to withhold the
identity of persons who furnish information
of violations of laws. (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995)
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Not applicable:
1) When the information is useful evidence to
vindicate the innocence of an accused
person;
2) When such information would lessen the risk
of a false testimony;
3) When it is essential to the proper disposition
of the case; and
4) When the benefit to be gained is greater
than any injury that could inure to the
relation by a disclosure of the information,
then disclosure will be compelled.
 On the other hand, where the claim of
confidentiality does not rest on the need to
protect military, diplomatic or other national
security secrets but on a general public
interest in the confidentiality of his
conversations, courts have declined to find
in the Constitution an absolute privilege of
the President against a subpoena considered
essential to the enforcement of criminal
laws. (Almonte vs. Vasquez, G.R. No. 95367,
May 23, 1995)
 Nor has our attention been called to any law
or regulation which considers personnel
records of the EIIB as classified information.
To the contrary, COA Circular No. 88-293,
which petitioners invoke to support their
contention that there is adequate safeguard
against misuse of public funds, provides that
the "only item of expenditure which should
be treated strictly confidential" is that which
refers to the "purchase of information and
payment of rewards." (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995)
 His need for the documents thus outweighs
the claim of confidentiality of petitioners.
What is more, while there might have been
compelling reasons for the claim of privilege
in 1988 when it was asserted by petitioners,
now, seven years later, these reasons may
have been attenuated, if they have not in
fact ceased. The agents whose identities
could not then be revealed may have ceased
from the service of the EIIB, while the
covert missions to which they might have
been deployed might either have been
accomplished or abandoned. On the other
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hand, the Ombudsman's duty to investigate
the complaint that there were in 1988
unfilled positions in the EIIB for which
continued funding was received by its
officials and put to illegal use, remains.
(Almonte vs. Vasquez, G.R. No. 95367, May 23,
1995)
 With these safeguards outlined, it is
believed that a satisfactory resolution of the
conflicting claims of the parties is achieved.
It is not amiss to state that even matters of
national security have been inquired into in
appropriate in camera proceedings by the
courts. In Lansang v. Garcia this Court held
closed door sessions, with only the
immediate parties and their counsel present,
to determine claims that because of
subversion there was imminent danger to
public safety warranting the suspension of
the writ of habeas corpus in 1971. Again in
Marcos v. Manglapus the Court met behind
closed doors to receive military briefings on
the threat posed to national security by the
return to the country of the former
President and his family. In the United
States, a similar inquiry into the danger to
national security as a result of the
publication of classified documents on the
Vietnam war was upheld by the U.S.
Supreme Court. We see no reason why
similar safeguards cannot be made to
enable an agency of the Government, like
the Office of the Ombudsman, to carry out
its constitutional duty to protect public
interests while insuring the confidentiality of
classified documents. (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995)
Special Laws with Regard to State Secrets:
RA 7653 (New Central Bank Act), Sec.16
General Rule: Non-disclosure of any
information of a confidential nature or any
information on the discussions or resolutions of
the Monetary Board.
Exception: when such data or information is
required to be submitted to the President and/or
Congress, or required to be published.
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RA 6981 (Witness Protection Act), Sec.7
All proceedings involving application for
admission into the program and the action taken
thereon shall be confidential in nature.
SC Circular (AM No. 01-10-5-SC-PHILJA)
The mediation proceedings and all incidents
thereto shall be kept strictly confidential, unless
otherwise specifically provided by law, and all
admissions or statements made therein shall be
inadmissible for any purpose in any proceeding.
8.J.3.D.F. Parental and filial privilege (Sec.
25)
There is no distinction between legitimate or
illegitimate relations.
Note: This is a testimonial privilege, not a
testimonial disqualification, found in Secs.22-24
of Rule 130 [careful not to be confused in the
multiple use of the word ―privilege‖]. Here, the
witness is the holder of the privilege and has the
power to invoke or waive the privilege. The
relative against whom he is testifying cannot
invoke nor waive the privilege. However, this
must be construed in the light of Art. 215 of the
Family Code
Art. 215. No descendant shall be compelled, in
a criminal case, to testify against his parents
and grandparents, except when such testimony
is indispensable in a crime against the
descendant or by one parent against the other.
Hence, a descendant may be compelled to
testify in a criminal case where:
a) The descendant-witness himself is the
victim; or
b) The descendant-witness‘s parent commits a
crime against the descendant-witness‘s
other parent.
Note: An ascendant may not be compelled to
testify even if it is a crime by the descendant
against the ascendant-witness. The ascendant-
witness may testify voluntarily though.
Information given by a child to 3rd person is
protected. (People vs. Publico, 7 CAR (2s) 703)

Other privileged matters:
1. Newsman‟s privilege [RA 53 as amended by
RA 1477(Sec 1)]
Requisites:
1) Publisher, editor, columnist or duly
accredited reporter.
2) Of any newspaper, magazine or periodical of
general circulation
3) Cannot be compelled to reveal.
4) As to the source of any news report or
information appearing in said publication;
and
5) Related in confidence
Exception: Court, a House or Senate
committee of Congress finds that such
revelation is demanded by the security of the
State.
2. Secrecy of bank deposits (RA 1405)
Sec. 2. All deposits of whatever nature with
banks or banking institutions in the Philippines
including investments in bonds issued by the
Government of the Philippines, its political
subdivisions and its instrumentalities, are hereby
considered as of an absolutely confidential
nature and may not be examined, inquired or
looked into by any person, government official,
bureau or office, except upon written permission
of the depositor, or in cases of impeachment, or
upon order of a competent court in cases of
bribery or dereliction of duty of public officials,
or in cases where the money deposited or
invested is the subject matter of the litigation.
Note: The privilege applies only to bank
deposits. As to other property being held by a
bank, bank personnel may be examined upon
order of a court. (Sec. 55.1 [d], RA 8791, General
Banking Act of 2000)
Subject to the provisions of RA 9160 or the Anti-
Money Laundering Law
Article 223, Labor Code
Information and statements made at conciliation
proceedings shall be treated as privileged
communication and shall not be used as
evidence in the Commission.
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Privileged communications Under the
Rules on Electronic Evidence
The confidential character of a privileged
communication is not lost solely on the ground
that it is in the form of an electronic document.
Testimonial privilege
Public officers
1) The holder of the privilege is the
government, acting through a public
officers;
2) The communication was given to the public
officer in confidence;
3) The communication was given during the
term of office of the public officer out the
privilege, may be invoked not only during
the term of office of the public officer but
also after,
4) The public interest would suffer by the
disclosure of the communication.
 Moreover, the petitioner wrote the Provincial
Auditor and offered to refund the missing
funds as follows: P200,000.00 on September
15, 1995, P200,000.00 on or before October
31, 1995, and P884,139.66 on November
30, 1995. He was able to pay only
P200,000.00 on September 15, 1995, and
failed to remit the balance of his shortage.
Such partial restitution of the petitioners of
the cash shortage is an implied admission of
misappropriation of the missing funds.
(Doldol vs. People of the Philippines, G.R. No.
164481, September 20, 2005)
 The Constitution bars the admission in
evidence of any statement extracted by the
police from the accused without the
assistance of competent and independent
counsel during a custodial investigation.
However, a counter-affidavit voluntarily
presented by the accused during the
preliminary investigation, even if made
without the assistance of counsel, may be
used as evidence against the affiant.
(Ladiana vs. People of the Philippines, G.R. No.
144293, December 4, 2002)
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8.J.4. Examination of a witness
Examination of witness presented in a trial
or hearing:
1) Done in open court;
2) Under oath or affirmation;
3) Answers of the witness shall be given orally,
unless:
a) the witness is incapacitated to speak; or
b) the question calls for a different mode
of answer.
Purpose: enable the court to judge the
credibility of the witness by the witness‘ manner
of testifying, their intelligence and their
demeanor.
General Rule: Testimonies of witnesses must
be given orally in open court and cannot be
presented in affidavits.
Exception: Cases covered by the Rule on
Summary Procedure where affidavits are given
in lieu of oral testimony.
Requisites for transcript to be deemed
prima facie a correct statement of the
proceedings:
1) Made by the official stenographer,
stenotypist or recorder; and
2) Certified as correct by him.
3) The rules now require even the statements
of the judge be recorded.
8.J.4.A Judicial Affidavit Rule
AM No. 12-8-8-SC, September 4, 2012
Promulgated by the Supreme Court with the
intention to address case congestion and delays,
the high percentage of criminal cases dismissed
annually due to complainants‘ failure to
prosecute, and enhance foreign investment, the
Judicial Affidavit Rule took effect January 1, 2013.
8.J.4.A.1. Scope and Where Applicable
Applicable to all civil and criminal actions
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Note: Refer to item 3 for further explanation on
criminal actions
Where applicable:
1) The Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial
Courts, the Municipal Circuit Trial Courts, and
the Shari' a Circuit Courts
2) The Regional Trial Courts and the Shari'a
District Courts;
3) The Sandiganbayan, the Court of Tax
Appeals, the Court of Appeals, and the Shari'a
Appellate Courts;
4) The investigating officers and bodies
authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the
Philippine (IBP); and
5) The special courts and quasi-judicial bodies
whose rules of procedure are subject to
disapproval of the Supreme Court
8.J.4.A.2 Contents and Procedure
Contents (Section 3):
A judicial affidavit shall be prepared in a language
known to the witness and, if not in English or
Fililpino, accompanied by a translation in English
or Filipino, and shall contain the following:
1) name, age, residence or business address,
and occupation of the witness
2) name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination
is being held
3) statement that the witness is answering the
questions asked of him, fully conscious that
he does so under oath, and that he may face
criminal liability for false testimony or perjury
4) Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies;
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and

c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules
of Court;
5) The signature of the witness over his printed
name; and
6) Jurat
Procedure – Civil (Section 2):
1) Parties shall file with the court and serve on
adverse party, by personal or licensed
courier, judicial affidavits not later than five
days before pre-trial or preliminary
conference or the scheduled hearing with
respect to motions and incidents, the
following:
a. The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
b. The parties' documentary or object
evidence, if any, which shall be attached
to the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of
the complainant or the plaintiff, and as
Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant.
2) Should a party or a witness desire to keep the
original document or object evidence in his
possession, he may, after the same has been
identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit
that the copy or reproduction attached to
such affidavit is a faithful copy or
reproduction of that original. In addition, the
party or witness shall bring the original
document or object evidence for comparison
during the preliminary conference with the
attached copy, reproduction, or pictures,
failing which the latter shall not be admitted.
3) This is without prejudice to the introduction
of secondary evidence in place of the original
when allowed by existing rules.
Procedure – Criminal (Section 9.b and c)
1) Prosecution - to submit the judicial affidavits
of its witnesses not later than five days
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before the pre-trial, serving copies of the
same upon the accused. The complainant or
public prosecutor shall attach to the affidavits
such documentary or object evidence as he
may have, marking them as Exhibits A, B, C,
and so on.
Note: No further judicial affidavit,
documentary, or object evidence shall be
admitted at the trial.
2) Defense - If the accused desires to be heard
on his defense after receipt of the judicial
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit as
well as those of his witnesses to the court
within ten days from receipt of such affidavits
and serve a copy of each on the public and
private prosecutor, including his documentary
and object evidence previously marked as
Exhibits 1, 2, 3, and so on. These affidavits
shall serve as direct testimonies of the
accused and his witnesses when they appear
before the court to testify.
Offer and Objections (Section 6 and 7)
1) Party who presents the judicial affidavit of his
witness in place of direct testimony shall state
the purpose of the testimony at the start of
the presentation of the witness.
2) The adverse party may move to:
a) disqualify the witness;
b) strike out his affidavit or any answers if
inadmissible under the Rules.
3) Court shall promptly rule on the motion and if
granted, cause the marking of any excluded
answer by placing it in brackets under the
initials of an authorized court personnel,
without prejudice to tender of excluded
evidence.
4) Adverse party may cross examine witness.
5) The party who presents the witness may also
examine him as on re-direct.
6) In every case, the court shall take active part
in examining the witness to determine his
credibility as well as the truth of his testimony
and to elicit the answers that it needs for
resolving the issues.
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Oral Offer and Objections to Exhibits (Section
8)
1) Upon the termination of the testimony of his
last witness, a party shall immediately make
an oral offer of evidence of his documentary
or object exhibits, piece by piece, in
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit.
2) After each exhibit is offered, the adverse
party shall state the legal ground for his
objection, if any, to its admission, and the
court shall immediately make its ruling
respecting that exhibit.
3) Since the documentary or object exhibits
form part of the judicial affidavits that
describe and authenticate them, it is
sufficient that such exhibits are simply cited
by their markings during the offers, the
objections, and the rulings, dispensing with
the description of each exhibit.
8.J.4.A.3 Application of Rule to Criminal
Actions (SECTION 9)
Applicable to Criminal Actions:
a. Maximum Penalty does not exceed six years
b. Where accused agrees to Judicial affidavits
c. With respect to civil aspect, whatever the
penalties involved are
Note: Suspended application for 2013; Court
intends to make this effective 2014.
8.J.4.A.4 Effect of Non-Compliance (SECTION
10)
a. A party who fails to submit the required
judicial affidavits and exhibits on time shall be
deemed to have waived their submission.
Exceptions:
1) Valid reasons
2) Would not unduly prejudice the opposing
party, and
3) Defaulting party pays a fine of not less
than P 1,000 nor more than 5,000 at the
discretion of the Court.
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b) The court shall not consider the affidavit of
any witness who fails to appear at the
scheduled hearing of the case as required.
c) Counsel who fails to appear without valid
cause despite notice shall be deemed to have
waived his client's right to confront by cross-
examination the witnesses there present.
d) The court shall not admit as evidence judicial
affidavits that do not conform to the content
requirements of Section 3 and the attestation
requirement of Section 4 above.
Exceptions:
The court may allow only once the late
submission of the same provided:
1) The delay is for a valid reason;
2) Would not unduly prejudice the opposing
party; and
3) Defauliting party pays a fine of not less than
P1,000 nor more than P5,000 at the
discretion of the Court.
8.J.4.A.5 Effect on Other Rules (SECTION 11)
The provisions of the Rules of Court and the rules
of procedure governing investigating officers and
bodies authorized by the Supreme Court to
receive evidence are repealed or modified insofar
as these are inconsistent with the provisions of
this Rule.
The rules of procedure governing quasi-judicial
bodies inconsistent herewith are hereby
disapproved.
8.J.5. Rights and Obligations of Witnesses
Obligations of a witness
To answer questions, although his answer may
tend to establish a claim against him. (Sec. 3,
Rule 132)
Rights of a witness (Sec. 3, Rule 132)
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
fact at issue or from which the fact in issue
would be presumed of his previous final
conviction for an offense.
Note: The exception in number (4) above refers
to immunity statutes wherein the witness is
granted immunity from criminal prosecution for
offenses admitted in his testimony.
Kinds of Immunity Statutes:
1) Republic Act 1379, Section 8 – the law
providing for the forfeiture of unlawfully
acquired property.
2) Presidential Decree 749 – in prosecutions for
bribery and graft.
8.J.6. Order in the Examination of An
Individual Witness
1) Direct examination by the proponent.
2) Cross-examination by the opponent.
3) Re-direct examination by the proponent.
4) Re-cross-examination by the opponent.
8.J.6.A. Direct examination is the
examination-in-chief of a witness by the party
presenting him on the facts relevant to the
issue. (Rule 132, Sec. 5)
8.J.6.B. Cross-examination
Purpose:
1) To discredit the witness;
2) To discredit the testimony of the witness;
3) To elicit admissions from a witness; and
4) To clarify certain matters.
 The defense argues, rather desperately, that
the testimony of appellant should acquire
added strength for the failure of the
prosecution to conduct cross-examination on
him and to present any rebuttal evidence.
The cross-examination of a witness is a
prerogative of the party against whom the
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witness is called. The purpose of cross-
examination is to test the truth or accuracy
of the statements of a witness made on
direct examination. The party against whom
the witness testifies may deem any further
examination unnecessary and instead rely
on any other evidence theretofore adduced
or thereafter to be adduced or on what
would be believed is the perception of the
court thereon. Certainly, the trial court is not
bound to give full weight to the testimony of
a witness on direct examination merely
because he is not cross-examined by the
other party. (People of the Philippines vs. Fabre,
G.R. No. 146697, 385 SCRA 185, July 23, 2002)
 The trial court is not bound to give full
weight to the testimony of a witness on
direct examination merely because he is not
cross-examined by the other party. (People
vs. Fabre, 385 SCRA 185)
 Counsel for appellant seeks to make much
of the fact that Michelle Dolorical did not
answer some of the questions of defense
counsel on cross-examination. We do not
find, however, that this failure detracts from
the admissibility or credibility of Michelle's
testimony. Firstly, this appears to the Court
to be a case of failure of Michelle to answer
some questions rather than an obstinate
refusal to do so. In formulating those
questions on cross-examination, defense
counsel obviously did not take into account
that he was cross-examining a child of
tender age (Michelle was approximately nine
[9] years of age at the time she gave her
testimony in open court) susceptible to
confusion and probably easily intimidated.
The questions posed by defense counsel to
Michelle appear to us to have been long,
elaborate and circumlocutious difficult to
comprehend even for adults. Thus, at one
point, the trial court directed the defense
counsel to simplify his questions. Defense
counsel, after that directive from the trial
court, tried once more but did not succeed
in simplifying his questions. Promptly
thereafter, defense counsel ceased cross-
examination after stating for the record that
Michelle was "unable to answer the question
propounded by [him]" and that such as
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counsel would "just leave it to the sound
discretion of the honorable court. No further
questions." It is clear to this Court that
defense counsel exercised no substantial
effort to present intelligible questions to
complaining witness Michelle Dolorical
designed to elicit straightforward answers.
We consider that she, in all probability,
simply failed to grasp some of the questions
put to her on cross-examinations. The
defense had made it very difficult if not
practically impossible for her to answer
those questions intelligently and truthfully.
(People of the Philippines vs. Guamos, G.R. No.
109662, February 21, 1995)
Scope or Limits of Cross-Examination:
Under the English Rule where a witness is called
to testify to a particular fact, he becomes a
witness for all purposes and may be fully cross-
examined upon all matters material to the issue,
the examination not being confined to the
matters inquired about in the direct
examination.
Witness may be cross-examined by the
adverse party
1) As to any matters stated in the direct
examination, or connected therewith; and
2) With sufficient fullness and freedom, to test
his accuracy and truthfulness and freedom
from interest or bias, or the reverse; and
3) To elicit all important facts bearing upon the
issue.
8.J.6.C. Re-direct examination (Rule 132, Sec.
7)
1) To explain or supplement his answers given
during the cross-examination.
2) Court may allow questions on matters not
dealt with during the cross-examination.
8.J.6.D. Re-cross-examination (Rule 132, Sec.
8)
On matters stated in his re-direct examination.
Court may allow questions on other matters.
8.J.6.E. Recalling Witness (Rule 132, Sec. 9)
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1) After the examination of a witness by both
sides has been concluded
2) 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.
Note: A witness can be recalled only with
leave of the court.
8.J.7. Leading and Misleading Questions
(RULE 132, SEC. 10)
Leading questions – a question which
suggests to the witness the answer which the
examining party desires.
General Rule: Leading questions are not
allowed.
Exceptions:
1) Cross examination
2) Preliminary matters
3) Difficulty in getting direct and intelligible
answers from a witness who is:
a) Ignorant, or
b) A child of tender years, or
c) Feeble mind, or
d) A deaf-mute;
4) Unwilling or hostile witness
5) Witness 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.
Misleading questions – one which assumes
as true a fact not yet testified to by the witness,
or contrary to that which he has previously
stated.
Misleading questions are not allowed; no
exceptions.
8.J.8. Methods of Impeaching the Adverse
Party‟s Witnesses (Rule 132, Sec. 11)
 Before a witness can be impeached by
evidence that he has made at other times
statements inconsistent with his present

testimony, the statements must be related
to him, with the circumstances of the times
and places and the persons present, and he
must be asked whether he made such
statements, and if so, allowed to explain
them. If the statements be in writing they
must be shown to the witness before any
question is put to him concerning them.
(Section 13, Rule 132, 1989 Revised Rules on
Evidence)
 Before the credibility of a witness and the
truthfulness of his testimony can be
impeached by evidence consisting of his
prior statements which are inconsistent with
his present testimony, the cross-examiner
must lay the predicate or the foundation for
impeachment and thereby prevent an
injustice to the witness being cross-
examined. The witness must be given a
chance to recollect and to explain the
apparent inconsistency between his two
statements and state the circumstances
under which they were made. This Court
held in People v. Escosura that the
statements of a witness prior to her present
testimony cannot serve as basis for
impeaching her credibility unless her
attention was directed to the inconsistencies
or discrepancies and she was given an
opportunity to explain said inconsistencies.
(People of the Philippines vs. Castellano, G.R. No.
139412, 400 SCRA 401, April 2, 2003)
 For instance, if the attorney for the accused
had information that a certain witness, say
Pedro Gonzales, had made and signed a
sworn statement before the fiscal materially
different from that given in his testimony
before the court, it was incumbent upon the
attorney when cross-examining said witness
to direct his attention to the discrepancy
and to ask him if he did not make such and
such statement before the fiscal or if he did
not there make a statement different from
that delivered in court. If the witness admits
the making of such contradictory statement,
the accused has the benefit of the
admission, while the witness has the
opportunity to explain the discrepancy, if he
can. On the other hand, if the witness
denies making any such contradictory
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statement, the accused has the right to
prove that the witness did make such
statement; and if the fiscal should refuse
upon due notice to produce the document,
secondary evidence of the contents thereof
would be admissible. This process of cross-
examining a witness upon the point of prior
contradictory statements is called in the
practice of the American courts "laying a
predicate" for the introduction of
contradictory statements. It is almost
universally accepted that unless a ground is
thus laid upon cross-examination, evidence
of contradictory statements are not
admissible to impeach a witness; though
undoubtedly the matter is to a large extent
in the discretion of the court. (People of the
Philippines vs. Castellano, G.R. No. 139412, 400
SCRA 401, April 2, 2003 quoting United States vs.
Baluyot, 40 Phil. 385, 1919)
A witness may be impeached by the party
against whom he was called, by (methods):
1) Contradictory evidence;
2) By evidence that his general reputation for
truth, honesty, or integrity is bad; or
3) By evidence that he has made at other
times statements inconsistent with his
present testimony
4) 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.
Impeachment of own witness (Rule 132, Sec.
11)
General Rule: The party producing a witness is
not allowed to impeach his credibility.
Exceptions: When party may impeach his own
witness (except evidence of bad character)
1) An unwilling; or
2) hostile witness; or
3) 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.
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Grounds for declaring a witness unwilling
or hostile:
1) Adverse interest;
2) Unjustified reluctance to testify; or
3) Misled the party into calling him to the
witness stand.
Consequences of being an unwilling,
hostile, or adverse witness:
1) May be impeached by the proponent, except
by evidence of bad character;
2) May also be impeached by the opponent;
3) May be cross-examined by the opponent,
only on the subject matter of his direct
examination; and
4) Proponent may ask leading questions.
Evidence of the good character of a
witness
Evidence of the good character of a witness is
not admissible until such character has been
impeached.
Note: In both civil and criminal cases, the bad
moral character of a witness may always be
proved by either party (Rule 132, Sec. 11)
Good Moral Character - a character that
measures up as good among the people in the
community in which the person lives, or one
that is up to the standard of the average citizen.
8.J.9. How Witness may be Impeached by
Evidence of Prior Inconsistent Statements
(RULE 132, SEC. 13)
Before a witness can be impeached by evidence
that he has made at other times statements
inconsistent with his present testimony:
1) The statements must be related to him, with
the circumstances of the times and places
and the persons present, and
2) He must be asked whether he made such
statements, and if so, allowed to explain
them.
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3) If the statements be in writing they must be
shown to the witness before any question is
put to him concerning them.
 A witness cannot be impeached by
evidence of contradictory or prior
inconsistent statements until the
proper foundation or predicate has
been laid by the party against who
said witness was called. (People of
the Philippines vs. De Guzman, 288
SCRA 346)
 Laying the predicate means that it is
the duty of a party trying to impugn
the testimony of a witness by
means of prior or subsequent
inconsistent statements, whether
oral or in writing, to give the
witness a change to reconcile his
conflicting declaration. (People of
the Philippines vs Relucio, 85 SCRA
227)
When witness may refer to memorandum
(Rule 132, Sec. 16)
A witness may be allowed to refresh his memory
respecting a fact, by anything written or
recorded by himself or under his direction at the
time when the fact occurred, or immediately
thereafter, or at any other time when the fact
was fresh in his memory and he knew that the
same was correctly written or recorded; but in
such case the writing or record must be
produced and may be inspected by the adverse
party, who may, if he chooses, cross-examine
the witness upon it and may read it in evidence.
So, also, a witness may testify from such a
writing or record, though he retain no
recollection of the particular facts, if he is able
to swear that the writing or record correctly
stated the transaction when made; but such
evidence must be received with caution. (Section
16, Rule 132, 1989 Revised Rules on Evidence)
 It is asserted that the testimony of Francisca
Espina should not be given worth since,
while testifying, she would at times be seen
reading some notes written on her left palm.
XXX Allowing a witness to refer to her notes
rests on the sound discretion of the trial
court. In this case, the exercise of that

discretion has not been abused; the witness
herself has explained that she merely
wanted to be accurate on dates and like
details. (People of the Philippines vs. Plasencia,
G.R. No. 90198, 249 SCRA 674, November 7,
1995)
Requisites:
1) The memorandum must have been written
or recorded by himself or under his
direction;
2) Either at the time when the fact occurred
immediately thereafter; or
3) At any other time when the fact was fresh in
his memory;
4) He knew that the same was correctly written
or recorded;
5) The memorandum must be produced and
may be inspected by the adverse party, who
may, if he chooses, cross-examine the
witness upon it, and may read it in
evidence; and
6) If the witness retains no recollection of the
particular facts, he must swear that the
writing or record correctly stated the
transaction when made.
 It is asserted that the testimony of Francisca
Espina should not be given worth since,
while testifying, she would at times be seen
reading some notes written on her left palm.
XXX Allowing a witness to refer to her notes
rests on the sound discretion of the trial
court. In this case, the exercise of that
discretion has not been abused; the witness
herself has explained that she merely
wanted to be accurate on dates and like
details. (People of the Philippines vs. Plasencia,
G.R. No. 90198, 249 SCRA 674, November 7,
1995)
Two Parts of Rule 132, Sec. 16
1) Rule on ―revival of present memory‖ –
applies if the witness remembers the acts
regarding his entries and entitled to greater
weight.
2) Rule on ―revival of past recollection‖ –
applies where the witness does not recall
the acts involved and is entitled to lesser
weight.
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When part of transaction, writing or
record given in evidence, the remainder
admissible (Rule 132, Sec. 17)
1) That part of an act, declaration,
conversation, writing or record is given in
evidence by one party;
2) That the whole of the same subject may be
inquired into by the other; and
3) That when a detached act, declaration,
conversation, writing or record is given in
evidence any other act, declaration,
conversation, writing or record necessary to
its understanding may also be given in
evidence.
4) Whenever a writing is shown to a witness, it
may be inspected by the adverse party.
(Rule 132, Sec. 18)
8.J.10. Evidence of the Good Character of
a Witness
The evidence of the good character of a witness
is not admissible until such character has been
impeached. This arises from the presumption
that the witness us truthful and of good
character, hence the necessity of initially
showing such traits is unnecessary.
8.J.11. Admissions and Confessions
Admission is an act, declaration or omission of
a party as to a relevant fact.
Confession is a categorical acknowledgement
of guilt made by an accused of the offense
charged or any offense necessarily included
therein.
Classifications of Admissions:
1) Judicial Admissions:
a) Formal judicial admissions
b) Informal judicial admissions
2) Extrajudicial Admissions:
a) Express extrajudicial admissions
b) Implied extrajudicial admissions
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Admissions that are admissible against a
party:
1. Admissions against interest
2. Compromises
3. Exceptions to Res Inter AliosActa:
a) Co-partner‘s admissions (Sec 29)
b) Agent‘s admissions
c) Admissions by a joint owner, joint
debtor, or other person jointly
interested with the party
d) Co-conspirator‘s statements
e) Admission by Privies.
4. Admission by silence
Rule on admissions of a party:
1) The act, declaration or omission of a party
as to a relevant fact may be given in
evidence against him.
2) An act, declaration or omission in his favor is
NOT an admission.
Elements for an Admission to be
Admissible:
1) Must involve matters of fact, not of law;
2) Must be categorical and definite;
3) Must be knowingly and voluntarily made;
and
4) Must be adverse to the admitter‘s interest.
Otherwise it would be self-serving and
generally inadmissible.
 Moreover, the petitioner wrote the Provincial
Auditor and offered to refund the missing
funds as follows:P200,000.00 on September
15, 1995, P200,000.00 on or before October
31, 1995, and P884,139.66 on November
30, 1995. He was able to pay only
P200,000.00 on September 15, 1995, and
failed to remit the balance of his shortage.
Such partial restitution of the petitioners of
the cash shortage is an implied admission of
misappropriation of the missing funds.
(Doldol vs. People of the Philippines, G.R. No.
164481, September 20, 2005)
 The Constitution bars the admission in
evidence of any statement extracted by the
police from the accused without the
assistance of competent and independent
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counsel during a custodial investigation.
However, a counter-affidavit voluntarily
presented by the accused during the
preliminary investigation, even if made
without the assistance of counsel, may be
used as evidence against the affiant.
(Ladiana vs. People of the Philippines, G.R. No.
144293, December 4, 2002)
 The admission having been made in a
stipulation of facts at pre-trial by the parties,
it must be treated as a judicial admission.
Under Section, 411 Rule 129 of the Rules of
Court, a judicial admission requires no
proof. (SCC Chemicals Corporation vs. Court of
Appeals, G.R. No. 128538, February 28, 2001)
 Judicial admissions are legally binding on
the party making the admissions. Pre-trial
admission in civil cases is one of the
instances of judicial admissions explicitly
provided for under Section 7, Rule 18 of the
Rules of Court, which mandates that the
contents of the pre-trial order shall control
the subsequent course of the action,
thereby, defining and limiting the issues to
be tried. (Constantino vs. Heirs of Costantino,
Jr., G.R. No. 181508, October 2, 2013)
 Once the stipulations are reduced into
writing and signed by the parties and their
counsels, they become binding on the
parties who made them. They become
judicial admissions of the fact or facts
stipulated. Even if placed at a
disadvantageous position, a party may not
be allowed to rescind them unilaterally, it
must assume the consequences of the
disadvantage. (Constantino vs. Heirs of
Costantino, Jr., G.R. No. 181508, October 2,
2013 quoting Bayas vs. Sandiganbayan, 440
Phil. 54, 2002)
 A party who judicially admits a fact cannot
later challenge the fact as judicial
admissions are a waiver of proof;
production of evidence is dispensed with. A
judicial admission also removes an
admitted fact from the field of controversy.
Consequently, an admission made in the
pleadings cannot be controverted by the
party making such admission and are
conclusive as to such party, and all proofs
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to the contrary or inconsistent therewith Philippines vs. Flores, G.R. No. 71980, March 18,
should be ignored, whether objection is 1991)
interposed by the party or not. The
allegations, statements or admissions Distinctions
contained in a pleading are conclusive as
against the pleader. A party cannot Admission Confession
subsequently take a position contrary of or Statement of fact which Statement of fact which
does not involve an involves an
inconsistent with what was pleaded.
acknowledgment of acknowledgment of guilt
(Constantino vs. Heirs of Costantino, Jr., G.R.
guilt or liability or liability without any
No. 181508, October 2, 2013 quoting Alfelor vs.
exculpatory statement
Halasan, 520 Phil. 982, 2006)
Express or tacit Always express
 Nor will petitioner's reliance on the "best May be made by third Made only by the party
evidence rule" advance its cause. persons and, in certain himself, and, in some
Respondent SIHI had no need to present cases, are admissible instances, are admissible
the original of the documents as there was against a party against his co-accused
already a judicial admission by petitioner at
pre-trial of the execution of the promissory
note and receipt of the demand letter. It is Note: Every confession is an admission, but not
now too late for petitioner to be all admissions are confessions.
questioning their authenticity. Its admission
of the existence of these documents was Self–serving declarations are unsworn
sufficient to establish its obligation. (SCC statements made by the declarant out of court
Chemicals Corporation vs. Court of Appeals, and which are favorable to his interest. It is not
G.R. No. 128538, February 28, 2001) admissible in evidence because of the lack of
opportunity to cross-examine.
 It should be remembered that the rule that Distinctions
the statement of a conspirator relating to
the conspiracy is not admissible in evidence Declarations Against
Admissions
unless the conspiracy is first shown by other Interest
independent evidence, applies only to an Made against the Need not be made
admission in an extrajudicial confession or proprietary or pecuniary against pecuniary or
declaration. It does not apply to a testimony interest of the parties. proprietary interest.
given directly in court where the defendants
have the opportunity to cross-examine the Made by a person who is Made by a party himself,
either deceased or and is primary evidence
declarant. Provided it is sincere in itself,
unable to testify. and competent though
given unhesitatingly and in a straightforward he be present in court
manner, and full of details which by their and ready to testify.
nature could not have been the result of
deliberate afterthought, the testimony of a
co-conspirator, even if uncorroborated, is Must be made ante litem May be made any time.
sufficient. (People of the Philippines vs. Flores, motam.
G.R. No. 71980, March 18, 1991)
 The unexplained flight of an accused may
 The extrajudicial admission or confession of be taken as evidence having tendency to
a co-conspirator out of court is different establish his guilt. (Adame vs. CA, GR No.
from the testimony given by a co-accused 139830, Nov. 21, 2002)
during trial. The first is admissible against
the declarant alone, but the second is  In an administrative complaint against a
perfectly admissible against his co-accused‘ lawyer for his negligence in the performance
who had the right and opportunity to cross- of his duties as counsel, ―Respondent‘s
examine the declarant. (People of the failure to file an answer to the complaint

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despite notice from the IBP amounts to an Distinctions

admission of the allegations therein…‖
(Pilapil vs. Carillo, AC No. 5843, Jan. 14, 2003) Offer of Compromise Ordinary Admission
The proposal is The intention is
 President‘s admission binds the corporation. tentative and any apparently to admit
(Keller & Co. vs. COB, January 16, 1986) statement made in liability and to seek to
connection with it is buy or secure relief
COMPROMISES hypothetical to buy against a liability
peace and in recognized as such.
contemplation of mutual
Offer of Compromise concessions.

Civil Cases Criminal Cases

An offer of compromise An offer of compromise by
is not an admission of the accused may be
any liability and is not received in evidence as an
admissible in evidence implied admission of guilt.
against the offeror.
Exception:
Exception: Those involving quasi-
When such offer is offenses;
clearly not only to buy
peace but amounts to Those allowed by law to
an admission of liability be compromised (i.e. Tax
the offered Cases);
compromise being
directed only to the Plea of guilty later
amount paid. withdrawn;
As unaccepted offer of a
plea of guilty to a lesser
offense;
An offer or payment of
medical, hospital or other
expenses occasioned by
an injury; and
Under the
KatarungangPambarangay
Law.
Reason compromise is allowed in civil
cases: It is the policy of the law to favor the
settlement of disputes, to foster compromises
and to promote peace. (Genato vs. Silapan, Adm.
Case. No. 4078, July 14, 2003)
Note: An offer of compromise that may be
considered an implied admission need NOT be
made by the accused himself, it may be made
by his lawyer or relatives, provided it is made
with the consent of the accused or with his
knowledge and he does not stop it.
8.J.11.A. Res inter alios acta
“Res inter alios acta altere nocere non
debet”
1) Things done between two persons ought not
to injure or prejudice those who are not
parties to it.
2) The rights of a party cannot be prejudiced
by the act, declaration or omission of
another.
 The res inter alios rule ordains that the
rights of a party cannot be prejudiced by an
act, declaration, or omission of another. An
extra-judicial confession is binding only
upon the confessant and is not admissible
against his co-accused. The reason for the
rule is that, on a principle of good faith and
mutual convenience, a man‘s own acts are
binding upon himself, and are evidence
against him. So are his conduct and
declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust,
that a man should be bound by the acts of
mere unauthorized strangers; and if a party
ought not to be bound by the acts of
strangers, neither ought their acts or
conduct be used as evidence against him.
(People of the Philippines vs. Raquel, 265 SCRA
248, 1996, as cited in People of the Philippines
vs. Cui, G.R. No. 121982, September 10, 1999)
A. FIRST BRANCH
Admission by third party. (Rule 130, Sec. 28)
Exceptions to First Branch of Res Inter
Alios Acta Rule:

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1) Admission by a co-partner or agent (Rule
130, sec. 29)
2) Admission by a co-conspirator (Rule 130, Sec.
30)
3) Admission by privies (Rule 130, Sec. 31)
B. SECOND BRANCH
Similar acts as evidence (Rule 130, Sec. 34)
 The res inter aliosacta rule refers only to the
extrajudicial declarations or admissions and
not to testimony given on the witness stand
where the party adversely affected has the
opportunity to cross-examine the declarant.
(People vs. Camiling, 424 SCRA 698)
8.J.11.B. Admission by a Party
The act, declaration or omission of a party as to
a relevent fact may be given in evidence against
him. Him admission is, however, not admissible
in his favor because it would be self-serving
evidence.
8.J.11.C. Admission by Third Party (SEC. 28)
General Rule: extrajudicial acts of a person
other than a party are inadmissible against such
party.
Exceptions:
1) Partner‘s/Agent‘s Admissions
2) Co-Conspirator‘s Statements
3) Admission by Privies
4) Admission by Silence
8.J.11.D. Admission by co-partner or agent
Requisites:
1) The acts or declaration were made during
the existence of partnership.
2) That the partnership be previously proven
by evidence other than the admission itself;
3) The acts or declaration refers to matters
within the scope of his authority
8.J.11.E. Admission by Conspirator
Requisites:
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1) Act or declaration of a conspirator;
2) Relating to the conspiracy;
3) Made during its existence; and
4) The conspiracy is shown by evidence other
than such act of declaration;
 The general rule is that extra-judicial
declarations of a co-conspirator made before
the formation of the conspiracy or after the
accomplishment of its object are
inadmissible in evidence as against the other
co-conspirators, on the ground that the
accused in a criminal case has the
constitutional right to be confronted with the
witnesses against him and to cross-examine
them. (People of the Philippines vs. Cui, G.R. No.
121982, September 10, 1999)
 In the case at bar, the alleged conspiracy
among the accused was not priorly
established by independent evidence. Nor
was it was shown that the extra-judicial
statements of Basingan were made while
they were engaged in carrying out the
conspiracy. In truth, the statements were
made after the conspiracy has ended and
after the consummation of the crime. They
were not acts or declarations made during
the conspiracy's existence. Since the extra-
judicial admissions were made after the
supposed conspiracy, they are binding only
upon the confessant and are not admissible
against his co-accused; as against the latter,
the confession is hearsay. In fine, the extra-
judicial statements of Basingan cannot be
used against the Cuis, Obese and Sarte
without doing violence against their
constitutional right to confront Basingan and
to cross-examine him. (People of the
Philippines vs. Cui, G.R. No. 121982, September
10, 1999)
 It is clear that the only piece of evidence
that would link appellants directly to the
kidnapping of Stephanie Lim is the Sworn
Statement executed by Eduardo Basingan
implicating appellants and describing their
participation in detail. Basingan‘s extra-
judicial confession, however, is inadmissible
for being hearsay as he was not presented
by the prosecution as its witness, he having
escaped after arraignment. (People of the
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Philippines vs. Cui, G.R. No. 121982, September 2) ADO is made while holding the title in
10, 1999) relation to the property.
3) ADO must be in relation to the property.
 The extra-judicial statements of an accused
implicating a co-accused may not be utilized Exceptions:
against the latter, unless these are repeated 1) Where the declarations are made in the
in open court. If the accused never had the presence of the transferee and he acquiesce
opportunity to cross-examine his co-accused in the statement or asserts no right where
on the extra-judicial statements, it is he ought to speak;
elementary that the same are hearsay as 2) Where there has been prima facie case of
against said accused. That is exactly the fraud established, as where the possession
situation, and the disadvantaged plight of of the thing after the transfer remains with
appellants, in the case at bar. (People of the the seller or transferor; or
Philippines vs. Raquel, 265 SCRA 248, 1996, as 3) Where the evidence establishes a continuing
cited in People of the Philippines vs. Cui, G.R. No. conspiracy to defraud.
121982, September 10, 1999)
8.J.11.G. Admission by Silence
8.J.11.F. Admission by Privies
Requisites:
 Privies are those who have mutual or
1) The act or declaration is made in the
successive relationship to the same right of
presence and within the hearing or
property or subject matter.
observation of party;
By the term "privies" is meant those
2) The party does or says nothing;
between whom an action is deemed binding
3) The act or declaration naturally calls for
although they are not literally parties to the
action of comment if not true; and
said action. This Court, in Correa v. Pascual,
4) Such action or comment is proper and
had occasion to explain that "privity in
possible on the part of the party.
estate denotes the privity between assignor
and assignee, donor and donee, grantor and
a. He must have heard or observed the act or
grantee, joint tenant for life and
declaration of the other person;
remainderman or reversioner and their
b. He must have had the opportunity to deny
respective assignees, vendor by deed of
it;
warranty and a remote vendee or assignee.
c. He mush have had understood the
A privy in estate is one, it has been said,
statement;
who derives his title to the property in
d. He must have an interest to object, such
question by purchase; one who takes by
that he would naturally have done so if the
conveyance." In fine, respondents, as
statement was not ture.
successors-in-interest, derive their right
e. The facts were within his knowledge; and
from and are in the same position as their
f. The fact admitted or the inference to be
predecessor in whose shoes they now stand.
drawn from his silence is material to the
(Constantino vs. Heirs of Costantino, Jr., G.R. No.
181508, October 2, 2013) issue.

Kinds of Privies: Note: When silence not considered an

Those arising from admission (exception to the exception):
1) Contract
2) Law – e.g. Succession 1) If made on the advise of the counsel; and
3) Blood – e.g. father and son 2) If done due to lack of full appreciation or
understanding.
Requisites:
1) Act, declaration, or omission (ADO) is made Doctrine of adoptive admission:
by a predecessor-in-interest;

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An adoptive admission is a party‘s reaction to a
statement or action by another person when it is
reasonable to treat the party‘s reaction as an
admission of something stated or implied by the
other person.
8.J.11.H. Confessions
 A categorical acknowledgment of guilt made
by an accused in a criminal case without any
exculpatory statement or explanation.
A confession is an acknowledgment in
express terms, by a party in a criminal case,
of his guilt of the crime charged, while an
admission is a statement by the accused,
direct or implied, of facts pertinent to the
issue, and tending, in connection with proof
of other facts, to prove his guilt. In other
words, an admission is something less than
a confession, and is but an acknowledgment
of some fact or circumstance which in itself
is insufficient to authorize a conviction, and
which tends only to establish the ultimate
fact of guilt. (People of the Philippines vs.
Lorenzo, G.R. No. 110107, January 26, 1995
citing Wharton)
 A confession is defined as an
acknowledgment of guilt of the crime
charged or of the facts which constitute the
crime; but it is an admission and not a
confession if the facts acknowledged raise
an inference of guilt only when considered
with other facts. (People of the Philippines vs.
Lorenzo, G.R. No. 110107, January 26, 1995
citing Underhill)
 In a confession, there is an acknowledgment
of guilt. Admission is usually applied in
criminal cases to statements of fact by the
accused which do not directly involve an
acknowledgment of guilt of the accused or
of the criminal intent to commit the offense
with which he is charged. (People of the
Philippines vs. Lorenzo, G.R. No. 110107, January
26, 1995)
Note: Confessions are presumed to be
voluntary and the onus is on the defense to
prove that it was involuntary for having
been obtained by violence, intimidation,
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threat, promise of reward or leniency. (PP v.
Garcia, 101 Phil 615)
Reminders:
 This rule is generally applicable in
criminal cases.
 There can also be a confession of
judgment in a civil case where the party
expressly admits his liability.
 A confession need not be in writing in
order to be admissible in evidence.
Note: If it is in writing, it is not required to
be under oath.
Requisites for Admissibility of
Confessions:
1) Express and categorical acknowledgment of
guilt;
2) Facts admitted are constitutive of the
criminal offense;
3) Voluntarily given;
4) Intelligently made; and
5) There is no violation of Art. III, Sec. 3 of the
Constitution (Rights of the Accused). (People
vs. Racquel, 256 SCRA 248)
Classification of confessions:
Judicial confession is one made before a
court in which the case is pending and in the
course of legal proceedings therein, and by
itself, can sustain a conviction even in capital
offenses.
Extrajudicial confession is one made in any
other place or occasion and cannot sustain a
conviction UNLESS its voluntariness is proven
and corroborated by evidence of the corpus
delicti.
 Note that what must be corroborated is the
extrajudicial confession and not the
testimony of the person to whom the
confession is made, and the corroborative
evidence required is not the testimony of
another person who heard the confession
but the evidence of corpus delicti. Except
when expressly required by law, the
testimony of a single person, if credible and
positive and if it satisfies the court as to the
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guilt of the accused beyond reasonable 7) Where the co-conspirator‘s extrajudicial

doubt, is sufficient to convict. In
determining the value and credibility of
evidence, witnesses are to be weighed, not
numbered. (People of the Philippines vs.
Lorenzo, G.R. No. 110107, January 26, 1995)
Requisites for admissibility of extrajudicial
confessions:
1) Express;
2) Voluntary;
3) With the assistance of a competent and
independent counsel; and
4) In writing
confession is corroborated by other evidence
of record.
Note: Article III, Sec 12 and Sec 17
Illegal confessions and admissions are
inadmissible against the confessant or the
admitter but are admissible against the persons
who violated the constitutional prohibition in
obtaining such illegal confessions on admissions.
Note: Rule 115, Sec 1 (e)
Sec. 1.Rights of accused at trial. – xxx (e) To be
exempt from being compelled to be a witness
against himself.

Corpus delicti – refers to a particular crime

and signifies that the specific offense had been Previous Conduct as Evidence
actually committed by someone.
General Rule: Evidence that one did or did not
General Rule: An extrajudicial confession is do a certain thing at one time is not admissible
admissible against the confessor only. It is to prove that he did or did not do the same or
incompetent evidence against his co-accused for similar thing at another time.
being hearsay and because of the res inter
aliosacta rule. Exceptions: It may be received to prove a
specific:
Exceptions: (When admissible against the co-
defendants) 1) Intent;
2) Knowledge;
1) If the co-defendants impliedly acquiesced in 3) Identity;
or adopted said confession; 4) Plan;
2) Interlocking confessions – if the accused 5) System;
persons voluntarily and independently 6) Scheme;
executed identical confession without 7) Habit
collusion and corroborated by other 8) Custom; or
evidence; 9) Usage, and the like.
3) Where the accused admitted the facts
stated by the confessant after being Unaccepted offer - An offer in writing to pay a
apprised of such confession; particular sum of money or to deliver a written
4) If they are charged as co-conspirators of the instrument or specific personal property, if
crime which was confessed by one of the rejected without valid cause is equivalent to the
accused and said confession is used only as actual production and tender of the money,
corroborating evidence; instrument, or property.
5) Where the confession is used as
circumstantial evidence to show the Testimonial knowledge
probability of participation by the
conspirator; Rule: A witness can testify only to those facts
6) When the confessant testified for his co- which he knows of his personal knowledge, that
defendant; and is which are derived from his own perception,
except as otherwise provided in the rules. (Sec.
36, Rule 130)

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8.J.11.I. Similar Acts as Evidence
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; but it may be received to prove a
specific intent or knowledge; identity, plan,
system, scheme, habit, custom or usage, and
the like. (Section 34, Rule 130, 1989 Revised Rules
on Evidence)
 Appellant Santos now complains that the
affidavit of Ronaldo Guerrero was hearsay
evidence, considering that the prosecution
did not present Ronaldo Guerrero as a
witness during the trial. We consider that
the trial court did not commit reversible
error in admitting the Guerrero affidavit for
the limited purpose for proving knowledge
or plan or scheme, and more specifically,
that appellant knew that the particular
corner of two (2) particular streets in Manila
was a good place to ambush a vehicle and
its passengers. Appellant also had waived
the hearsay character of this evidence by
failure seasonably to object to the admission
of the affidavit; it is too late in that day to
raise the hearsay rule in the appellant's
memorandum after prosecution and defense
had presented their respective cases and
had made their respective offers of
evidence. (People of the Philippines vs. Santos,
G.R. Nos. 100225-26, May 11, 1993)
 Third, the report of Special Investigator
Isagani P. Cartagena has not been
successfully rebutted. In that report, Recio
supposedly admitted that he had not
actually conducted an investigation and
ocular inspection of the parcel of land.
Cartagena‘s statement on Recio‘s alleged
admission may be considered as
"independently relevant." A witness may
testify as to the state of mind of another
person -- the latter‘s knowledge, belief, or
good or bad faith -- and the former‘s
statements may then be regarded as
independently relevant without violating the
hearsay rule. (Republic of the Philippines vs.
Heirs of Alejaga, G.R. No. 146030, December 3,
2002)
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 While lying may constitute a habit, we
believe that the falsehoods committed by
Lorielyn, assuming them for the moment to
be true, are petty and inconsequential. They
are not as serious as charging one's own
father of the sordid crime of rape, with all of
its serious repercussions. (People of the
Philippines vs. Nardo, G.R. No. 133888, March 1,
2001)
8.J.12. Hearsay Rule
8.J.12.A. Meaning of Hearsay
 By hearsay evidence is meant that kind of
evidence which does not derive its value
solely from the credence to be attributed to
the witness herself but rests solely in part
on the veracity and competence of some
persons from whom the witness has
received the information. It signifies all
evidence which is not founded upon the
personal knowledge of the witness from
whom it is elicited, and which, consequently,
is not subject to cross-examination. The
basis for the exclusion appears to lie in the
fact that such testimony is not subject to the
test which can ordinarily be applied for the
ascertainment of truth of testimony, since
the declarant is not present and available for
cross-examination. In criminal cases, the
admission of hearsay evidence would be a
violation of the constitutional provision while
the accused shall enjoy the right to confront
and cross-examine the witness testifying
against him. (People of the Philippines vs. Ulit,
G.R. Nos. 131799-801, February 23, 2004)
 Undeniably, they are hearsay for any oral or
documentary evidence is hearsay by nature
if its probative value is not based on the
personal knowledge of the witnesses but on
the knowledge of some other person who
was never presented on the witness stand.
(People of the Philippines vs. Cui, G.R. No.
121982, September 10, 1999)
 Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of another person
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who is not on the witness stand. Hearsay
evidence, whether objected to or not, has
no probative value unless the proponent can
show that the evidence falls within the
exceptions to the hearsay evidence rule.
(Benguet Exploration, Inc. vs. Court of Appeals,
G.R. No. 117434, February 9, 2001)
 Generally, the affidavits of persons who are
not presented to testify on the truth of the
contents thereof are hearsay evidence. Such
affidavit must be formally offered in
evidence and accepted by the court;
otherwise, it shall not be considered by the
court for the simple reason that the court
shall consider such evidence formally
offered and accepted. (People of the
Philippines vs. Ulit, G.R. Nos. 131799-801,
February 23, 2004)
 As a rule, hearsay evidence is excluded and
carries no probative value. However, the
rule does admit of an exception. Where a
party failed to object to hearsay evidence,
then the same is admissible. The rationale
for this exception is to be found in the right
of a litigant to cross-examine. It is settled
that it is the opportunity to cross-examine
which negates the claim that the matters
testified to by a witness are hearsay.
However, the right to cross-examine may be
waived. The repeated failure of a party to
cross-examine the witness is an implied
waiver of such right. (SCC Chemicals
Corporation vs. Court of Appeals, G.R. No.
128538, February 28, 2001)
8.J.12.B. Reasons for Excluding Hearsay
Evidence
1) No opportunity to cross-examine the
purported source of such evidence and
therefore not subject to text of truth;
2) Violative of the Constitutional right to
confrontation; and
3) Absence of oath.
Hearsay twice removed:
1) Also called ―doubled hearsay‖.
2) Even the source of the hearsay introduced is
itself hearsay.
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Classification of Out-of-Court Statements:
Hearsay – those which are considered as
hearsay and therefore inadmissible; this occurs
when the purpose for introducing the out-of-
court statement is to prove the truth of the facts
asserted therein.
Non-Hearsay – independently relevant
statements when the purpose for introducing
the statements are not to prove the truth of the
facts asserted and are admissible in evidence
when the making of the statements are
relevant.
8.J.12.C. Exceptions to Hearsay Rule
1) Dying declaration (Rule 130, Sec. 37);
2) Declaration against interest (Rule 130, Sec.
38);
3) Act or declaration about pedigree (Rule 130,
Sec. 39);
4) Family reputation or tradition regarding
pedigree (Rule 130, Sec. 40);
5) Common reputation (Rule 130, Sec. 41);
6) Res gestae (Rule 130, Sec. 42);
7) Entries in the course of business (Rule 130,
Sec. 43);
8) Entries in official records (Rule 130, Sec. 44);
9) Commercial lists (Rule 130, Sec. 45);
10) Learned treatises (Rule 130, Sec. 46); and
11) Testimony or deposition at a former
proceeding (Rule 130, Sec. 47).
Reminders:
 They are hearsay per se, but are
admissible by reason of necessity and
trustworthiness.
 Hearsay evidence not objected to may
be admissible, but whether objected to
or not has no probative value (except
the exceptions) and as opposed to
direct and primary evidence, the latter
always prevails.
8.J.12.C.1. Dying declaration (Sec. 37):
Requisites:
1) Declaration of a dying person;
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2) Made under the consciousness of an superseded shortly afterwards may be

impending death;
3) His death is the subject of inquiry;
4) As evidence of the cause and surrounding
circumstances of such death; and
5) That the statement is complete in itself
(People vs. De Joya, 203 SCRA 343).
6) Declaration relates to facts which the victim
is competent to testify.
considered as substantial evidence that the
declaration was made by the victim with full
realization that he was in a dying condition.
(People of the Philippines vs. Montañez, G.R. No.
148257, March 17, 2004)
8.J.12.C.2. Declaration against interest
(Sec. 38)

Reminders: Requisites:
1) Declarant is dead or unable to testify;
 To be complete in itself does not mean that 2) Against the interest of the declarant;
the declaration must recite everything that 3) That at the time he made said declaration,
constituted the res gestae of the subject of the declarant was aware that the same was
his statement, but that his statement of any contrary to his interest.
given fact should be a full expression of all
that he intended to say as conveying his  With the deletion of the phrase "pecuniary
meaning in respect of such fact. or moral interest" from the present
 A dying declaration may be oral or written provision, it is safe to assume that
or made by signs which could be interpreted "declaration against interest" has been
and testified to by a witness thereto. expanded to include all kinds of interest,
 A dying declaration may be attacked on the that is, pecuniary, proprietary, moral or
ground that any of the requisites for its even penal. (People of the Philippines vs.
admissibility are not present and the same Bernal, G.R. No. 113685, June 19, 1997)
may be impeached in the same manner as
the testimony of any other witness on the  Openda, Jr., having been missing since his
stand. abduction, cannot be called upon to testify.
 If the declarant does not die, the declaration His confession to Enriquez, definitely a
would not be admissible under this rule but declaration against his own interest, since
considered as part of the res gestae. his affair with Naty Bernal was a crime, is
 Best evidence rule not applicable to dying admissible in evidence because no sane
declaration. person will be presumed to tell a falsehood
 Dying declaration favorable to the accused to his own detriment. (People of the
Philippines vs. Bernal, G.R. No. 113685, June 19,
is admissible.
1997)
 Dying declaration is not considered a
confidential communication between Distinctions:
spouses.
Admission By Privies Declaration Against
 Perlito‘s statement that it was the appellant Interest
who shot him was a dying declaration. The One of three exceptions Exception to hearsay
statement is highly reliable, having been to res inter aliosacta
made in extremity when the declarant is at
the point of death and when any hope of Evidence against the Evidence against even
survival is gone, when every motive to successor in interest of the declarant, his
falsehood is silenced, and when the mind is the admitter successor in interest, or
induced by the most powerful considerations 3rd persons
Admitter need not be Declarant is dead or
to speak the truth. Even if the declarant did
dead or unable to testify unable to testify
not make a statement that he was at the
brink of death, the degree and seriousness Relates to title to Relates to any interest
of the words and the fact that death property

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Admission By Privies Declaration Against
Interest
Admission need not be Declaration must be
against the admitter‘s against the interest of
interest the declarant
8.J.12.C.3. Act or declaration about
pedigree (Sec. 39):
The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of
another person related to him by birth or
marriage, may be received in evidence where it
occurred before the controversy, and the
relationship between the two persons is shown
by evidence other than such act or declaration.
The word "pedigree" includes relationship,
family genealogy, birth, marriage, death, the
dates when and the places where these fast
occurred, and the names of the relatives. It
embraces also facts of family history intimately
connected with pedigree. (Section 39, Rule 130,
1989 Revised Rules on Evidence)
Requisites:
1) The actor or declarant is dead or unable to
testify;
2) The act or declaration is made by a person
related to the subject by birth or marriage;
3) The relationship between the
declarant/actor and the subject is shown by
evidence other than such act/declaration;
and
4) The act/declaration was made ante litem
motam or prior to the controversy.
 Pedigree includes relationship, family
genealogy, birth, marriage, death, the dates
when and the places where these facts
occurred, the names of the relatives, and
facts of family history intimately connected
with pedigree.
The general rule, therefore, is that where
the party claiming seeks recovery against a
relative common to both claimant and
declarant, but not from the declarant
himself or the declarant's estate, the
relationship of the declarant to the common
relative may not be proved by the
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declaration itself. There must be some
independent proof of this fact. As an
exception, the requirement that there be
other proof than the declarations of the
declarant as to the relationship, does not
apply where it is sought to reach the estate
of the declarant himself and not merely to
establish a right through his declarations to
the property of some other member of the
family. (Tison vs. Court of Appeals, G.R. No.
121027, July 31, 1997)
 We are sufficiently convinced, and so hold,
that the present case is one instance where
the general requirement on evidence aliunde
may be relaxed. Petitioners are claiming a
right to part of the estate of the declarant
herself. Conformably, the declaration made
by TeodoraDezoller Guerrero that petitioner
Corazon is her niece, is admissible and
constitutes sufficient proof of such
relationship, notwithstanding the fact that
there was no other preliminary evidence
thereof, the reason being such declaration is
rendered competent by virtue of the
necessity of receiving such evidence to
avoid a failure of justice. More importantly,
there is in the present case an absolute
failure by all and sundry to refute that
declaration made by the decedent. (Tison vs.
Court of Appeals, G.R. No. 121027, July 31,
1997)
Family traditions (Sec. 40)
 It is evident that this provision may be
divided into two (2) parts: the portion
containing the first underscored clause
which pertains to testimonial evidence,
under which the documents in question may
not be admitted as the authors thereof did
not take the witness stand; and the section
containing the second underscored phrase.
What must then be ascertained is whether
Exhibits S to V, as private documents, fall
within the scope of the clause "and the like"
as qualified by the preceding phrase
"[e]ntries in family bibles or other family
books or charts, engravings on rights [and]
family portraits," (Jison vs. Court of Appeals,
G.R. No. 124853, February 24, 1998)

 We hold that the scope of the enumeration
contained in the second portion of this
provision, in light of the rule of ejusdem
generis, is limited to objects which are
commonly known as "family possessions," or
those articles which represent, in effect, a
family's joint statement of its belief as to the
pedigree of a person. These have been
described as objects "openly exhibited and
well known to the family," or those "which,
if preserved in a family, may be regarded as
giving a family tradition." Other examples of
these objects which are regarded as
reflective of a family's reputation or tradition
regarding pedigree are inscriptions on
tombstones, monuments or coffin plates.
(Jison vs. Court of Appeals, G.R. No. 124853,
February 24, 1998)
Requisites for Admissibility of Hearsay
Evidence as to Family Reputation or
Tradition Regarding Pedigree:
It is necessary that:
1) The witness testifying thereto must be a
member, by consanguinity or affinity, of the
same family as the subject; and
2) Such reputation or tradition must have
existed in that family ante litem motam.
Distinctions:
Act Or Declaration Family Reputation or
About Pedigree Tradition Regarding
Pedigree
Witness need not be a Witness is a member of the
member of the family family
Testimony is about Testimony is about family
what declarant, dead or reputation or tradition covering
unable to testify, has matters of pedigree
said concerning the
pedigree of the
declarant‘s family
 As to Exhibits "S," "T," "U" and "V," the
various notes and letters written by
FRANCISCO's relatives, namely Mike Alano,
Emilio Jison, Mariquit Lopez and Fernando
Lopez, respectively, allegedly attesting to
MONINA's filiation, while their due execution
and authenticity are not in issue, as
MONINA witnessed the authors signing the
documents, nevertheless, under Rule 130,
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Section 39, the contents of these documents
may not be admitted, there being no
showing that the declarants-authors were
dead or unable to testify, neither was the
relationship between the declarants and
MONINA shown by evidence other than the
documents in question. (Jison vs. Court of
Appeals, G.R. No. 124853, February 24, 1998)
8.J.12.C.5. Common reputation (Sec. 41)
Common reputation existing previous to the
controversy, respecting facts of public or general
interest more than thirty years old, or respecting
marriage or moral character, may be given in
evidence. Monuments and inscriptions in public
places may be received as evidence of common
reputation. (Section 41, Rule 130, 1989 Revised
Rules on Evidence)
Requisites:
1) The facts must be of public or general
interest;
2) That the common reputation must have
been ancient or for more than 30 years (no
such requirement in cases of proving
marriages and moral character);
3) That the reputation must have been existing
previous to the controversy; and
4) The common reputation must be among
people who had an adequate opportunity of
observing the person‘s conduct.
5) The definite opinion held about a person in
the community in which he lives.
6) The general or substantially undivided
reputation.
7) Need not be unanimous.
What Common Reputation may be
Admitted to Prove:
1) Matters of public interest more than 30
years old (considered ancient);
2) Matters of general interest more than 30
years old;
3) Matters respecting marriage or moral
character and related facts; and
4) Individual moral character.
The 30-year period does not apply to matters
respecting marriage and moral character.
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Evidence of Negative Good Repute
Where the foundation proof shows that the
witness was in such position that he would have
heard reports derogatory to one‘s character, the
reputation testimony may be predicated on the
absence of reports of bad reputation or on the
fact that the witness had heard nothing against
the person.
8.J.12.C.6. Res gestae (Sec. 42)
Literally means ―Things Done‖
It Includes the circumstances, facts and
declarations incidental to the main fact or
transaction necessary to illustrate its character
and also includes acts, words or declarations
which are closely connected therewith as to
constitute part of the transaction.
The hearsay rule will not apply in this case as
statements, acts or conduct accompanying or so
nearly connected with the main transaction as to
form a part of it, and which illustrate, elucidate,
qualify or characterize the act, are admissible as
a part of the res gestae.
Types of Res Gestae:
Spontaneous statements (first sentence, sec.
42) – statements made by a person while a
startling occurrence is taking place or
immediately prior or subsequent thereto with
respect to the circumstances thereof.
Requisites for a declaration to be deemed
part of res gestae: (People of the Philippines vs.
Lobrigas, G.R. No. 147649, December 17, 2002)
a) the principal act, the res gestae, is a
startling occurrence;
b) the statements were made before the
declarant had time to contrive or devise;
and
c) the statements must concern the occurrence
in question and its immediately attending
circumstances
Verbal Acts (Second Sentence, Rule 42)
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Statements accompanying an equivocal act
material to the issue and giving it a legal
significance.
Requisites:
1) Act or occurrence characterized must be
equivocal;
2) Such act must be material to the issue;
3) Statements must accompany the equivocal
act; and
4) Statements give legal significance to the
equivocal act.
 The test of admissibility of evidence as a
part of the res gestae is, therefore,
whether the act, declaration, or
exclamation, is so interwoven or
connected with the principal fact or
event that it characterizes as to be
regarded as a part of the transaction
itself, and also whether it clearly
negates any premeditation or purpose
to manufacture testimony. When
Januario gave the identity of the
assailants to SPO3 Mendoza, he was
referring to a startling occurrence which
is the stabbing by appellant and his co-
accused. At that time, Januario and the
witness were in the vehicle that would
bring him to the hospital, and thus, had
no time to contrive his identification of
the assailant. His utterance about
appellant and his co-accused having
stabbed him, in answer to the question
of SPO3 Mendoza, was made in
spontaneity and only in reaction to the
startling occurrence. Definitely, the
statement is relevant because it
identified the accused as the authors of
the crime. Verily, the killing of Januario,
perpetrated by appellant, is adequately
proven by the prosecution. (People of
the Philippines v. Gatarin, GR No.
198022, April 07, 2014)
 There is no doubt that a sudden attack
on a group peacefully eating lunch on a
school campus is a startling occurrence.
Considering that the statements of the
bystanders were made immediately
after the startling occurrence, they are,
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in fact, admissible as evidence given in Requisites:

res gestae. (People of the Philippines v.
Feliciano, GR No. 196735, May 05, 1) Entrant must be deceased or unable to
2014) testify;
2) Entries were made at or near the time of the
Distinctions transaction to which they refer;
3) Entrant was in a position to know the facts
Spontaneous stated in the entries;
Verbal Acts
Statement 4) Entries were made by entrant in his
The res gestae is the The res gestae is the professional capacity or in the performance
equivocal act startling occurrence of a duty, whether legal, contractual, moral
Verbal act must be Statements may be made or religious; and
contemporaneous with prior, while or
5) Entries were made in the ordinary or regular
or must accompany the immediately after the
equivocal act startling occurrence course of business or duties.
6) Both official and business records are only
Statements must Statements need not prima facie evidence.
explain the equivocal explain the principal fact
act and give it a legal Note: If the person making the entry is still
significance alive, use the record to refresh his memory.
(Rule 132, Sec. 16)
Distinctions
 Entries in police records made by a police
Res Gestae In officer in the performance of the duty
Connection With A Dying Declarations especially enjoined by law are prima facie
Homicidal Act evidence of the fact therein stated, and their
May be made by: Can be made only by the probative value may be either substantiated
(1) the accused himself victim
or nullified by other competent evidence.
after or during the
killing; or
Although police blotters are of little
(2) that of a 3rd person probative value, they are nevertheless
May precede Made only after the admitted and considered in the absence of
,accompany or be homicidal attacks has competent evidence to refute the facts
made after the been committed stated therein. (Lao vs. Standard Insurance Co.
homicidal attacks was Inc., G.R. No. 140023, August 14, 2003)
committed
Justification in the Trustworthiness based  In the absence of any controverting
spontaneity of the upon its being given an evidence, the documentary evidence
statement awareness of impending presented to corroborate the testimonies of
death
PAL's witnesses are prima facie evidence of
the truth of their allegations. The plane
8.J.12.C.7. Entries in the course of business tickets of the private respondents, exhs. "1,"
(Sec. 43)
"2," "3," "4," (with emphasis on the printed
condition of the contract of carriage
Entries made at, or near the time of transactions
regarding check-in time as well as on the
to which they refer, by a person deceased, or
notation "late 4:02" stamped on the flight
unable to testify, who was in a position to know
coupon by the check-in clerk immediately
the facts therein stated, may be received as
upon the check-in of private respondents)
prima facie evidence, if such person made the
and the passenger Manifest of Flight PR
entries in his professional capacity or in the
264, exh. "5," (which showed the non-
performance of duty and in the ordinary or
accommodation of Capati and Go and the
regular course of business or duty. (Section 43,
private respondents) are entries made in the
Rule 130, 1989 Revised Rule on Evidence)
regular course of business which the private
respondents failed to overcome with

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substantial and convincing evidence other
than their testimonies. Consequently, they
carry more weight and credence. A writing
or document made contemporaneously with
a transaction in which are evidenced facts
pertinent to an issue, when admitted as
proof of those facts, is ordinarily regarded
as more reliable proof and of greater
probative force than the oral testimony of a
witness as to such facts based upon
memory and recollection. (Philippine Airlines
Inc. vs. Ramos, G.R. No. 92740, March 23, 1992)
8.J.12.C.8. Entries in official records (Sec.
44)
Requisites:
1) The entries were made by:
a) A public officer in the performance of his
duties; or
b) A person in the performance of a duty
specially enjoined by law.
2) Entrant has personal knowledge of the facts
stated by him or such facts were acquired
by him from reports made by persons under
a legal duty to submit the same; and
3) Such entries were duly entered in a regular
manner in the official records.
4) Entries in police records made by a police
officer in the performance of the duty
especially enjoined by law are prima facie
evidence of the fact therein stated, and their
probative value may be either substantiated
or nullified by other competent evidence.
 As to the hearsay rule, Section 44 of Rule
130 of the Rules of Court similarly provides
that entries in official records are an
exception to the rule. The rule provides that
entries in official records made in the
performance of the duty of 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. The necessity of this rule
consists in the inconvenience and difficulty
of requiring the official's attendance as a
witness to testify to the innumerable
transactions in the course of his duty. The
document's trustworthiness consists in the
presumption of regularity of performance of
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official duty. (Dimaguila vs. Monteiro, G.R. No.
201011, January 27, 2014)
 We agree with the trial and appellate courts
in finding that the police blotter was
properly admitted as they form part of
official records. Entries in police records
made by a police officer in the performance
of the duty especially enjoined by law are
prima facie evidence of the fact therein
stated, and their probative value may be
either substantiated or nullified by other
competent evidence. Although police
blotters are of little probative value, they are
nevertheless admitted and considered in the
absence of competent evidence to refute
the facts stated therein. (Lao vs. Standard
Insurance Co. Inc., G.R. No. 140023, August 14,
2003)
 Cadastral maps are the output of cadastral
surveys. The DENR is the department tasked
to execute, supervise and manage the
conduct of cadastral surveys. It is,
therefore, clear that the cadastral map and
the corresponding list of claimants qualify as
entries in official records as they were
prepared by the DENR, as mandated by law.
As such, they are exceptions to the hearsay
rule and are primafacie evidence of the facts
stated therein. (Dimaguila vs. Monteiro, G.R.
No. 201011, January 27, 2014)
Note: In official records, the person making
the entry need not be deceased or unable to
testify, but he must be a public officer or a
person in the performance of a duty
specially enjoined by law. In business
records, the person making the entry must
be deceased or unable to testify. Both
official and business records are only prima
facie evidence.
8.J.12.C.9. Commercial lists and the like
(Sec. 45)
Requisites:
1) Statements of matters of interest;
2) To persons engaged in an occupation;
3) Contained in a list, register, periodical, or
other published compilation;

4) As tending to prove the truth of any relevant
matter so stated;
5) The compilation is published for use by
persons engaged in that occupation; and
6) Generally used and relied upon by them
therein.
 Under the afore-quoted rule, statement of
matters contained in a periodical, may be
admitted only "if that compilation is
published for use by persons engaged in
that occupation and is generally used and
relied upon by them therein." As correctly
held in our Decision dated January 27, 1999,
the cited report is a mere newspaper
account and not even a commercial list. At
most, it is but an analysis or opinion which
carries no persuasive weight for purposes of
this case as no sufficient figures to support
it were presented. Neither did anybody
testify to its accuracy. It cannot be said that
businessmen generally rely on news items
such as this in their occupation. Besides, no
evidence was presented that the publication
was regularly prepared by a person in touch
with the market and that it is generally
regarded as trustworthy and reliable. Absent
extrinsic proof of their accuracy, these
reports are not admissible. In the same
manner, newspapers containing stock
quotations are not admissible in evidence
when the source of the reports is available.
With more reason, mere analyses or
projections of such reports cannot be
admitted. In particular, the source of the
report in this case can be easily made
available considering that the same is
necessary for compliance with certain
governmental requirements. (Manila Electric
Company vs. Quisumbing, G.R. No. 127598,
February 22, 2000)
8.J.12.C.10. Learned treatises (Sec. 46)
Requisites for Admissibility of Hearsay
Evidence as to Learned Treatises (used to
prove unwritten foreign law):
1) If the court takes judicial notice that the
writer of the statement in the treatises,
periodical or pamphlet is recognized in his
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profession of calling as expert in the
subject; or
2) A witness, expert in the subject, testifies
that the writer of the statement in the
treaties, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject.
8.J.12.C.11. Testimony or deposition at a
former proceeding (Sec. 47)
Requisites for Admissibility of Hearsay
Evidence as to Prior Testimony:
1) That the witness whose testimony is offered
in evidence is deceased or unable to testify;
2) That it involves the same parties and
subject matter; and
3) That adverse party had an opportunity of
cross-examining the witness.
 The adoption by the Makati trial court of the
facts stated in the decision of the Parañaque
trial court does not fall under the exception
to the right of confrontation as the
exception contemplated by law covers only
the utilization of testimonies of absent
witnesses made in previous proceedings,
and does not include utilization of previous
decisions or judgments. (People vs. Ortiz-
Miyake, 279 SCRA 145)
 A conviction may not be based merely on
the findings of fact of another court,
especially where what is presented is only
its decision sans the transcript of the
testimony of the witnesses who testified
therein and upon which the decision is
based. (People vs. Ortiz-Miyake, 279 SCRA 145)
The hearsay rule does not apply to
independently relevant statements
Independently Relevant Statements are:
1) non-hearsay, out of court statements;
2) operative acts which give rise to legal
consequences.
 The doctrine on independently relevant
statements holds that conversations
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communicated to a witness by a third
person may be admitted as proof that,
regardless of their truth or falsity, they were
actually made. Evidence as to the making of
such statements is not secondary but
primary, for in itself it (a) constitutes a fact
in issue or (b) is circumstantially relevant to
the existence of such fact. (Republic of the
Philippines vs. Heirs of Alejaga, G.R. No. 146030,
December 3, 2002)
 Third, the report of Special Investigator
Isagani P. Cartagena has not been
successfully rebutted. In that report, Recio
supposedly admitted that he had not
actually conducted an investigation and
ocular inspection of the parcel of land.
Cartagena‘s statement on Recio‘s alleged
admission may be considered as
"independently relevant." A witness may
testify as to the state of mind of another
person -- the latter‘s knowledge, belief, or
good or bad faith -- and the former‘s
statements may then be regarded as
independently relevant without violating the
hearsay rule. (Republic of the Philippines vs.
Heirs of Alejaga, G.R. No. 146030, December 3,
2002)
8.J.13. Opinion rule
General Rule: The opinion of a witness is not
admissible.
Exceptions: Admissible opinion evidence
1) On a matter requiring special knowledge,
skill, experience or training, which he is
shown to possess (Rule 130, Sec. 49);
2) The identity of a person about whom he has
adequate knowledge (Rule 130, Sec. 50[a]);
3) A handwriting with which he has sufficient
familiarity (Rule 130, Sec. 50[b]);
4) The mental sanity of a person with whom he
is sufficient acquainted (Rule 130, Sec. 50[c]);
or
5) The witness‘ impression of the emotion,
behavior, condition or appearance of a
person. (Rule 130, Sec. 50[d])
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8.J.13.A. Opinion of Expert Witness
An expert witness is one who belongs to the
profession/calling to which the subject matter of
the inquiry relates and who possess special
knowledge on questions on which he proposes
to express an opinion.
There is no definite standard of determining the
degree of skill/knowledge that a witness must
possess in order to testify as an expert. It is
sufficient that the following factors are present:
1) Training and education;
2) Particular, first-hand familiarity with the
facts of the case; or
3) Presentation of authorities or standards
upon which his opinion is based.
 The question whether a witness is properly
qualified to give an expert opinion on
ballistics rests with the discretion of the
court. (People vs. Abriol, 267 SCRA 327)
8.J.13.B. Opinion of Ordinary Witness
The opinion of a witness for which proper basis
is given, may be received in evidence regarding
(a) the identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
(c) The mental sanity of a person with whom he
is sufficiently acquainted.
The witness may also testify on his impressions
of the emotion, behavior, condition or
appearance of a person.
8.J.14. Character Evidence (Sec. 51)
General Rule: Character evidence is NOT
admissible.
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community in which the person lives, or one

Exceptions: that is up to the standard of the average citizen.
Distinction between the rule on character
8.J.14.A. In Criminal Cases: in criminal and civil cases

1) Accused may prove his good moral Criminal Cases Civil Cases
character which is pertinent to the moral It is evidence of the Such evidence is with
trait involved in the offense charged. good character of the equal good reason not
2) In rebuttal, the prosecution may prove the accused is most admitted, because no
properly and with presumption would fairly
bad moral character of the accused which is
good reason arise, in the very great
pertinent if moral trait is involved in the admissible in evidence proportion of such cases,
offense charged. because there is a fair from the good character of
3) Hence, prosecution may not initially attack and just presumption the defendant, that he did
the character of the accused. that a person of good not commit the breach of
4) Moral character of the offended party may character would not contract or civil duty
be proved if it tends to establish in any commit a crime. alleged against him.
reasonable degree the probability or That which a person It is what a person is
improbability of the offense charged. or thing really is estimated, said, supposed,
or thought to be by others
Internal External
However: (exception to the exception)
Substance Shadow
Signifies the reality Signifies what is reputed or
Proof of the bad character of the victim in a understood from, or
murder case is not admissible if the crime reported to be the reality
was committed through treachery and about a person or thing
premeditation (People vs. Soliman, 101 Phil. It is what a man is Refers to the qualities one
767) morally, and consists is supposed to possess;
of the qualities which may be one‘s estimated or
In prosecution for rape, evidence of constitute the reputed character, in
complainant‘s past sexual conduct, opinion individual contradistinction to his real
thereof or of his/her reputation shall not be character
admitted unless, and only to the extent that
the court finds that such evidence is The Rule on Examination of a Child
material and relevant to the case (Rape Witness (A.M. No. 00-4-07-SC) December 15,
Shield, RA 8505 Sec. 6) 2000

8.J.14.B. In Civil Cases ((b), Sec. 51)
Only when pertinent to the issue of character
involved in the case.
Evidence of good character of witness (Rule
132, Sec. 14) – Evidence of the good character of
a witness is not admissible until such character
has been impeached.
Unless otherwise provided, this Rule shall
govern the examination of child witnesses who
are victims of crime, accused of a crime, and
witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings
involving child witnesses.
The requirements of a child‟s competence
as a witness are;

In both civil and criminal cases, the bad moral 1) Capacity of observation;
character of a witness may always be proved by 2) Capacity of recollection; and
either party (Rule 132, Sec. 11) 3) Capacity of communication. (Recto vs.
Republic, 440 SCRA 79)
Good moral character - a character that
measures up as good among the people in the

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Applicability of Rule
Section 1 of this Rule provides that unless
otherwise provided, this Rule shall govern the
examination of child witnesses who are victims
of crime, accused of a crime, and witnesses to
crime it shall apply in all criminal proceedings
and non-criminal proceedings involving child
witnesses.
Meaning of Child Witness
Child witness is any person who at the time of
giving testimony is below eighteen (18) years.
In child abuse cases, a child includes
Competency Under This Rule
Every hild is presumed qualified to be a witness.
However, the court shall conduct a competency
examination of a child, motupropioor on motion
of a party, when it finds that substantial doubt
exists regarding the ability of the child to
perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to
tell the truth in court.
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.
Child Witness - any person who at the time of
giving testimony is below the age of 18 years. In
child abuse cases a child includes one over 18
years of age 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.
Facilitator – means a person appointed by the
court to pose questions to a child. The facilitator
may be a child psychologist, psychiatrist, social
worker, guidance counselor, teacher, religious
leader, parent or relative.
Support Person - a person chosen by the child
to accompany him to testify at or attend a
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judicial proceeding or deposition to provide
emotional support for him.
Best Interest of the Child Rule
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 of the child.
The public may be excluded from the courtroom
when they do not have a direct interest in the
case.
The court may:
1) Allow the child witness to testify in a
narrative form.
2) Allow leading questions in all stages of the
examination of a child if the same will
further the interests of justice.
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.
Examination of Child Witness
As a general rule, 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 answer 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.
Thus, the Rule states that the court may:
1) Allow the child witness to testify in a
narrative form;
2) Allow leading questions in all stages of the
examination of a child if the same will
further the interests of justice;

3) Permit the child to use dolls, anatomically-
correct dolls, puppets, drawings,
mannequins, or any other demonstrative
device to assist him in his testimony;
4) Allow the child to have an items of his own
choosing such as a blanket, toy or doll
(emotional security item);
5) Allow the child reasonable periods of relief
while undergoing direct, cross, re-direct and
re-cross examinations as often as necessary
depending on his developmental level.
6) Allow that the testimony of the child be
taken in a room outside the courtroom and
be televised to the courtroom by live-link
television.
7) Permit that a deposition be taken of the
testimony of the child and that it be
recorded and preserved on videotape.
Live-Link TV Testimony of a Child Witness
In criminal case where a child is a victim or
witness, the prosecutor, counsel or the guardian
ed litem may apply for an order that the
testimony of the child be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television.
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. The
child shall, therefore, testify in a separate room.
Videotaped Deposition of a Child Witness
The prosecutor, counsel, or guardian ad
litemmay 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 litemapplies for this order, he
shall consult with the prosecutor or counsel with
respect to the filing of application five (5) days
before the trial date.
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It must be noted that the right 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.
Exception to Hearsay Rule
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
criminal proceeding subject to the following
rules:
1) Before such hearsay statement may be
admitted, its proponent shall make known to
the adverse party the intention to offer such
statement and its particulars to provide him
a fair opportunity to object.
2) If the child is available, the court shall, upon
motion of the adverse party, require the
child to be present at the presentation of
the hearsay statement for cross-examination
by the adverse party.
3) When the child is unavailable, the fact of
such circumstance must be proved by the
proponent.
4) In ruling the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof, based
on various factors provided by the law,
which provide sufficient indicia of reliability.
A) Sexual Abuse Shield Rule
The following evidence is NOT admissible in any
criminal proceeding involving alleged child
sexual abuse:
1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person other than the accused was the
source of the semen, injury, or other physical
evidence shall be admissible.
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 It is likewise settled jurisprudence that
testimonies of child-victims are given full
weight and credit. When a woman or a child
says that she has been raped, she says in
effect all that is necessary to show that rape
was indeed committed. (People vs. Pulanco,
G.R. No. 141186, November 27, 2003)
 Being a mental retardate is not per se a
disqualification; although speech was
slurred, testimony was positive, clear, plain
and unambiguous. (People vs. Salomon, 229
SCRA 402)
 Any child, regardless of age, can be a
witness as long as he meets the
qualifications for competency: observation,
recollection, and communication. (People vs.
Mendoza, G.R. No. 113791, February 2, 1996)
Protective Orders
1) Any videotape or audiotape of a child that is
part of the court record shall be under a
protective order.
2) As additional protective orders, the court
may, motuproprioor on motion any party,
the child, his parents, legal guardian, or the
guardian ad litem, issue additional orders to
protect the privacy of the child
8.K. OFFER AND OBJECTION
8.K.1. Offer of evidence (Rule 132, Sec. 34)
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.
 The offer of evidence is necessary because
it is the duty of the court to rest its findings
of fact and its judgment only and strictly
upon the evidence offered by the parties.
Unless and until admitted by the court in
evidence for the purpose or purposes for
which such document is offered, the same is
merely a scrap of paper barren of probative
weight. (Aludos vs. Suerte, G.R. No. 165285,
June 18, 2012 citing Heirs of the Deceased
Carmen Cruz-Zamora vs. Multiwood
International, Inc., G.R. No. 146428, 576 SCRA
137, January 19, 2009)
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 Neither the rules of procedure nor
jurisprudence would sanction the admission
of evidence that has not been formally
offered during the trial. But this evidentiary
rule is applicable only to ordinary trials, not
to cases covered by the rule on summary
procedure -- cases in which no full-blown
trial is held. (Heirs of Sabanpan vs. Comorposa,
G.R. No. 152807, August 12, 2003)
 When a sworn statement has been formally
offered as evidence, it forms an integral part
of the prosecution evidence which should
not be ignored for it complements and
completes the testimony on the witness
stand. A sworn statement is a written
declaration of facts to which the declarant
has sworn before an officer authorized to
administer oaths. This oath vests credibility
and trustworthiness on the document. The
fact that a witness fails to reiterate, during
trial, the contents of his sworn statement
should not affect his credibility and render
the sworn statement useless and
insignificant, as long as it is presented as
evidence in open court. This is not to say,
however, that the sworn statement should
be given more probative value than the
actual testimony. Rather, the sworn
statement and the open court declarations
must be evaluated and examined together
in toto so that a full and thorough
determination of the merits of the case may
be achieved. Giving weight to a witness‘ oral
testimony during the trial should not mean
being oblivious to the other pieces of
available evidence such as the sworn
statement. In like manner, the court cannot
give probative value to the sworn statement
to the exclusion of the oral testimony. In
every case, the court should review, assess
and weigh the totality of the evidence
presented by the parties. (People of the
Philippines vs. Fetalino, G.R. No. 174472, June
19, 2007)
8.K.1.A. When to make offer (Rule 132, Sec.
35)
Testimony – the time the witness is called to
testify.

Documentary and Object – after the
presentation of a party's testimonial evidence
and before the party rests.
Offer of evidence shall be done orally unless
allowed by the court to be done in writing.
8.K.1.B. When objection to evidence
offered must be made (Rule 132, Sec. 36)
 It is elementary that an objection shall be
made at the time when an alleged
inadmissible document is offered in
evidence, otherwise, the objection shall be
treated as waived, since the right to object
is merely a privilege which the party may
waive. (Tison vs. Court of Appeals, G.R. No.
121027, July 31, 1997)
 As explained in Abrenica vs. Gonda, et al., it
has been repeatedly laid down as a rule of
evidence that a protest or objection against
the admission of any evidence must be
made at the proper time, otherwise it will be
deemed to have been waived. The proper
time is when from the question addressed to
the witness, or from the answer thereto, or
from the presentation of the proof, the
inadmissibility of the evidence is, or may be
inferred. (Tison vs. Court of Appeals, G.R. No.
121027, July 31, 1997)
1) Orally – immediately after the offer is
made.
2) In writing – within 3 days after notice of
the offer, unless a different period is allowed
by the court.
3) A question propounded in the course of
the oral examination – as soon as the
grounds therefor shall become reasonably
apparent.
 The grounds for the objections should
always be specified.
 In objecting, the word ―incompetent‖ is
used as a ground in relation to
witnesses and not as to evidence.
General kinds of objections (in the course
of the proceedings):
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1) Formal – goes into the formalities required
by law. e.g., leading; misleading; answer
not responsive and to have it stricken-off;
question has no basis; incompetent;
irrelevant.
2) Substantial – goes into the substance of
presentation of evidence. e.g., best
evidence rule; parol evidence rule; hearsay.
Requisites for a proper continuing
objection: (Rule 132, Sec. 37)
1) In the course of the examination of a
witness;
2) Objection has been made;
3) Reasonably apparent that the questions
being propounded are of the same class as
those to which objection has been made;
and
4) Adverse party records his continuing
objection to such class of questions.
8.K.1.C. Repetition of an objection
When it becomes reasonably apparent in the
course of the examination of a witness that the
questions being propounded are of the same
class as those to which objection has been
made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse
party to record his continuing objection to such
class of questions.
8.K.1.D. Ruling of the court after objection
(Rule 132, Sec. 38)
1) Must be given immediately, unless it desires
to take reasonable time to inform itself on
the question presented.
2) Shall always be made during trial, and at
such time as will give the party against
whom it is made an opportunity to meet the
situation presented by the ruling.
General Rule: The reason for sustaining or
overruling an objection need not be stated.
Exception: If the objection is based on two or
more grounds, a ruling sustaining the objection
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on one or some of them must specify the
ground or grounds relied upon.
The parties may ask for the ground for the
ruling, even if the rules does not require the
judge to so state.
8.K.1.E. Striking out of an Answer
Requisites for striking out an answer: (Rule
132, Sec. 39)
1) Witness answers the question before the
adverse party had the opportunity to voice
fully its objection
2) Objection is found to be meritorious; and
3) Court orders that the answer given be
stricken off the record.
4) On proper motion, the court may also order
the striking out of answers which are
incompetent, irrelevant, or otherwise
improper.
Note: Matters stricken off are still part of the
records. It only means that they won‘t be
considered for resolution.
8.K.1.F. Tender of excluded evidence
(Proffer of evidence a.k.a. Offer of proof)
(Rule 132, Sec. 40)
How Done:
1. Object or Documentary Evidence – have
the same attached or made part of the
record.
2. Testimonial – state for the record:
a) The name and other personal circumstances
of the witness; and
b) The substance of the proposed testimony.
When evidence considered offered:
 The court shall consider no evidence, even
an extra-judicial confession, which was not
formally offered the mere fact that evidence
has been identified and marked in the
course of the examination of a witness,
without the contents being recited in his
testimony, does not mean that it has been
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formally offered as evidence. Identification
of documentary evidence is done in the
course of the trial and is accompanied by
the marking of the evidence as an exhibit,
while the formal offer of documentary
evidence is done only when the party rests
its case (People vs. Franco, 269 SCRA 211).
 Where the genuineness and due execution
of documents of an instrument attached to a
complaint are deemed admitted by failure to
specifically deny it under oath, such
instruments are considered as evidence
although they were not formally offered.
(Philippine Bank of Commerce vs. CA, 195 SCRA
567)
 Even if there was no formal offer made,
evidence can be considered when the
following requisites are present: (1) duly
identified by testimony, and (2) incorporated
in the records of the case. (Ramos vs. Dizon,
498 SCRA 17)
How to contest such Documents (Rule 8, Sec.
8.)
 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.
Actionable documents are admissible in
evidence even if not formally offered.
Mere fact that a document is marked as an
exhibit does not mean it has been offered as
evidence. Marking at the pre-trial was only
for the purpose of identifying them at that
time. However, if an exhibit has been duly
identified by testimony, duly recorded and
has itself been incorporated into the records
(i.e., recital of the contents of the exhibit), it

may still be admitted as evidence against
the adverse party even if there be no formal
offer of exhibits. (Tabuena vs. CA, 196 SCRA
650).
9. REVISED RULES ON
SUMMARY PROCEDURE
9.A. CASES COVERED BY THE
RULES
The Rules shall govern the summary procedure
in the MeTC, MTCC, MTC and MCTC in the
following cases falling within their jurisdiction:
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 cases, except probate proceedings,
where the total amount of the plaintiff's
claim does not exceed one hundred
thousand pesos (P100,000.00) or two
hundred thousand pesos (P200,000.00) in
Metropolitan Manila, exclusive of interest
and costs. (as amended by 02-11-09-SC, 12
November 2002)
Criminal cases
Violations of:
1) TRAFFIC laws, rules and regulations;
2) RENTAL law;
3) municipal or city ORDINANCES;
4) BP 22
5) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment NOT exceeding6mos, or a
fine NOT exceeding P1,000, 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 P10,000
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 This Rule shall not apply to a civil case
where the plaintiff‘s 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 ordinary
procedure.‖ (as amended by A. M. No. 00-11-
01-SC, 25 March 2003)
KATARUNGANG PAMBARANGAY LAW (P.D.
No. 1508; R.A. 7610, as amended)
CASES COVERED
Except those enumerated as exceptions under
Sec. 408, RA 7160, the following cases are
cognizable with the Katarungang Pambarangay:
Disputes:
1) Between persons actually residing in the
same barangay.
2) Those involving actual residents of different
barangays within the same city or
municipality.
3) All disputes involving real property or any
interest therein where the real property or
the larger portion thereof is situated;
4) Those arising at the workplace where the
contending parties are employed or at the
institution where such parties are enrolled
for study, where such workplace or
institution is located.
SUBJECT MATTER FOR AMICABLE
SETTLEMENT
General Rule: The lupon of each barangay
shall have authority to bring together the parties
actually residing in the same municipality or city
for amicable settlement of all disputes except:
1) Government is a party: Where one (1) party
is the government or any subdivision or
instrumentality thereof (Sec. 408, RA 7160);
2) Public servant is a party: Where one (1)
party is a public officer or employee, and
the dispute relates to the performance of his
official functions; (Sec. 408, RA 7160).
3) Penalty - 1 year or 5 thousand: Offenses
punishable by imprisonment exceeding one
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(1) year or a fine exceeding P5,000; (Sec.
408, RA 7160);
4) No offended party: Offenses where there is
no private offended party; (Sec. 408, RA
7160);
5) Real Property - different location: 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; (Sec. 408, RA 7160);
6) Parties - different location: 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; (Sec. 408, RA 7160);
7) Interest of Justice: Such other classes of
disputes which the President may determine
in the interest of justice or upon the
recommendation of the Secretary of Justice;
(Sec. 408, RA 7160);
8) Juridical entities: Any complaint by or
against corporations, partnerships, or
juridical entities. The reason is that only
individuals shall be parties to barangay
conciliation proceedings either as
complainants or respondents;
9) Urgent: Disputes where urgent legal action
is necessary to prevent injustice from being
committed or further continued, specially
the following:
a) A criminal case where the accused is
under police custody or detention;
b) Apetition for habeas corpus by a person
illegally detained or deprived of his
liberty or one acting in his behalf;
c) Actions coupled with provisional
remedies, such as preliminary
injunction, attachment, replevin and
support pendente litem;
d) Where the action may be barred by the
statute of limitations;
 Labor disputes or controversies
arising from employer-employee
relationship (Montoya vs. Escayo, 17
SCRA 442);
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 CARL: Where the dispute arises
from the Comprehensive Agrarian
Reform Law (Secs. 46 and 47, RA
6657);
 Compromise - directly to court:
Actions to annul judgment upon a
compromise which can be filed
directly in court (Sanchez vs. Tupas,
158 SCRA 459).
The court in which non-criminal cases not falling
within the authority of the lupon under the Code
are filed may, at any time before trial, motu
propio refer the case to the lupon concerned for
amicable settlement.
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 or 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
4) Where the action may otherwise be barred
by the statute of limitations. (Sec. 411, RA
7160)
9.B. PROHIBITED PLEADINGS AND
MOTIONS(Sec.19)
 Motion to dimiss 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;
 Motion for a bill of particulars;
 Motion for new trial, or for
reconsideration of a judgment, or for
opening of trial;
 Motion for extension of time to file
pleadings, affidavits or any other paper;
Dilatory motions for postponement;
 Memoranda;
 Petition for relief from judgment;
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 Petition for certiorari, mandamus, or 9.D. PRELIMINARY CONFERENCE

prohibition against any interlocutory order AND APPEARANCES OF PARTIES
issued by the court;
 Motion to declare the defendant in default; Not later than 30 days after the last answer is
 Reply; filed, a preliminary conference shall be held. The
 3rd party complaints; rules on pre-trial in ordinary cases shall be
 Interventions. applicable to the preliminary conference unless
inconsistent with the provisions of the Rule.
The filing of a prohibited pleading will not
suspend the period to file an Answer and Appeal Effect of failure of the plaintiff to appear in
(Soriano vs. Hon. Guadiz G.R. 85923 Feb 26, 1992; the preliminary conference
Sps. Edillo vs. Sps. Dulpina GR 188360 Jan. 21, 2010)
 It shall be cause for the dismissal of his
APPEAL(Sec.21)
complaint.
The judgment or final order shall be appealable
 The defendant who appears in the absence
to the appropriate RTC which shall decide the
of the plaintiff shall be entitled to judgment
same in accordance with Sec.22 of BP. 129. The
on his counterclaim in accordance with
decision of the RTC in civil cases governed by
Section 6.
this Rule, including forcible entry and unlawful
 All cross-claims shall be dismissed.
detainer, shall be IMMEDIATELY
EXECUTORY, without prejudice to a further
Effect of failure of a defendant to appear
appeal that may be taken therefrom. Section 10
in the preliminary conference
of Rule 70 shall be deemed repealed.
a) If sole defendant: The plaintiff shall be
9.C. EFFECT OF DEFENDANT‟S FAILURE TO
entitled to judgment in accordance with Sec.
ANSWER COMPLAINT WITHIN 10 DAYS
6.
FROM SERVICE OF SUMMONS
b) If two or more defendants: The Rule shall
not apply where one of two or more
The court shall motu propio or on motion of the
defendants sued under a common cause of
plaintiff, shall render judgment as may be
action who had pleaded a common defense
warranted by the facts alleged in the complaint
shall appear at the preliminary conference
and limited to what is prayed for therein;
(Sec. 7).
Provided, that the court may in its discretion
reduce the amount of damages and attorney‗s
fees claimed for being excessive or otherwise
unconscionable (Sec. 6). This is without prejudice
to the applicability of Sec. 4, Rule 18: if there
are 2 or more defendants,

Sec. 4, Rule 18: 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.

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Summary Procedure in Civil Cases Summary Procedure in Criminal Cases

PLEADINGS ALLOWED: FILING of either

Complaints, compulsory counterclaims, cross- COMPLAINT or INFORMATION
calims pleaded in answer, and answers (Sec. 11)
theretoNote: ALL VERIFIED (Sec. 3)

DUTY OF COURT If by COMPLAINT If by INFORMATION

upon examination of pleading and The Court may The Court shall issue an
evidence attached (Sec. 4) DISMISS outright order which shall require
for being patently the ACCUSED to SUBMIT
w/o basis or merit counter-affid. and affid of
and order RELEASE witnesses, serving copies on
DISMISS OUTRIGHT Issue of accused if in complainant or prosecutor
on any grounds for SUMMONS custody. (Sec.12) within 10days from receipt
dismissal of a civil action of Order. The prosecution
may file a REPLY within
Within 10 days 10days. (Sec. 12)
Defendant shall file his
ANSWER. (Sec. 5)

BOTH COMPLAINT AND INFORMATION

If NO ANSWER:
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.
Within 5days after termination
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 Sec. 4,
Rule 15 of the Rules of
Court, if there are 2 or more
defendants. (Sec. 6)
PRELIMINARY CONFERENCE
Shall be accompanied by AFFIDAVITS of
Not later than thirty (30)
complainant and his witnesses in such
days after the last answer is
number as there are accused plus 2 copies
filed. (Sec. 7)See Table:
for the Court.
Effects of Non-Appearance
If NOT complied with within 5days from
filing the case may be DIMISSED (Sec. 11)
RECORD of Prel. Conference
of Prel. Conference. (Sec. 8)
DIMISSAL ARRAIGNMENT
If NO ground to if there is a ground to hold
hold accused accused for trial.
Submission of AFFIDAVITS of for trial
witnesses and If accused in CUSTODY, he shall
POSITION PAPERS (Sec.9) be arraigned immediately. If he
enters PLEA OF GUILTY he shall
forthwith be sentenced. (Sec.
RENDITION OF JUDGMENT: 13)
Within 30days after receipt
of last affidavits or within
15days after receipt of last
clarificatory affid.(Sec.10) PRELIMINARY CONFERENCE
ARREST OF ACCUSED
Only for FAILLURE TO
APPEAR whenever TRIAL(Sec. 15)
required. (Sec. 16)

JUDGMENT
Within 30days after termination
of trial
(Sec. 17)

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10. REVISED RULES OF
PROCEDURE FOR SMALL
CLAIMS CASES (A.M. NO.
08-8-7-SC)
Note: The SC en banc on December 8, 2015
promulgated the Revised Rules of Procedure for
Small Claims Cases (A.M. No. 08-8-7-SC) and was
made effective February 1, 2016. The
amendments are hereby reflected.
10.A. SCOPE AND APPLICABILITY OF THE
RULE
When Applicable (Section 5):
Applies in all actions that are purely civil in
nature where the claim or relief prayed for by
the plaintiff is solely for payment or
reimbursement of sum of money which does not
exceed the jurisdictional amount.
10.B. COMMENCEMENT OF SMALL CLAIMS
ACTION; RESPONSE
Jurisdiction (Section 1):
First Level Courts (MeTC, MTCC, MTC, MCTC).
Jurisdictional amount is not exceeding Two
Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs.
Venue (Section 7):
The regular rules on venue shall apply (refer to
Sec. 4 of the Rules of Court). In cases of plaintiffs
engaged in the business of lending, banking and
similar activities where a branch is located in the
place where the defendant resides, the case
shall be filed in such branch.
Procedure: (Sections 6-25)
1. Filing of VERIFIED Statement of Claim
Filing with the court an accomplished and
verified Statement of Claim in duplicate,
accompanied by a Certification Against
Forum Shopping, Splitting a Single Cause of
Action, and Multiplicity of Suits and two (2)
duly certified photocopies of the actionable
document/s subject of the claim, as well as
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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 Statement of
Claim, unless good cause is shown for the
admission of additional evidence.
The plaintiff must state in the Statement of
Claim if he/she/it is engaged in the business
of lending, banking and similar activities,
and the number of small claims cases filed
within the calendar year regardless of
judicial station.
Joinder of claims is allowed against a
defendant provided that the total amount
claimed, exclusive of interest and costs,
does not exceed P200,000.00.
The affidavits submitted under this Rule
shall state only facts of direct personal
knowledge of the affiants or based on
authentic records, 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
any, to appropriate disciplinary action.
The inadmissible affidavit(s) or portion(s)
thereof shall be expunged from the
record.
The non-submission of the required
affidavits will cause the immediate
dismissal of the claim or counterclaim.
2. Payment of docket fees
Timely payment of correct docket fees as
prescribed in Rule 141, unless allowed to
litigate as an indigent. But indigents are still
required to pay P1,000.00 fee for service of
summons and processes.
Progressive and cumulative payment
of docket fees is now adopted by the
Rules. Under such rule, when one party has
filed more than 5 small claims within one
calendar year, regardless of the judicial
station, an additional filing fee of 500.00
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shall be paid for every claim filed after the
fifth (5th) claim, and an additional 100.00 or
a total of 600.00 for every claim filed after
the tenth (10th) claim, and another 100.00
or a total of 700 for every claim filed after
the fifteenth (15th) claim, progressively and
cumulatively.
If a plaintiff is engaged in the business of
banking, lending and similar activities, the
amount of filing and other legal fees shall be
the same as those applicables cases filed
under the regular rules.
3. Dismissal or Issuance of Summons and
Notice of Hearing
After the court‘s examination of the
allegations of the Statement of Claim/s and
such evidence attached thereto, it may
either dismiss the claim or issue summons.
Order of dismissal; Finding of ground
for dismissal
The order of dismissal shall state if it is with
or without prejudice. The court may also
motu proprio dismiss the case even if any
ground for dismissal is not pleaded in the
defendant‘s Response.
Case falls under summary or
regular procedureIf the case falls under
summary or regular procedure, the case
shall not be dismissed. Instead, the case
shall be re-docketed under the appropriate
procedure, and returned to the court where
it was assigned, subject to payment of any
deficiency in the applicable regular rate of
filing fees. If a case is filed under the
regular or summary procedure, but actually
falls under the rules on small claims, the
case shall be referred to the Executive
Judge for appropriate assignment.
No ground of dismissal is found
If no ground for dismissal is found, the court
shall issue Summons on the day of receipt
of the Statement of Claim/s, directing the
defendant to submit a verified
Response and a Notice of Hearing to
both parties, directing them to appear
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before it on a specific date and time for
hearing, with a warning that no unjustified
postponement shall be allowed, as provided
in Section 21 of this Rule.
A Notice of Hearing shall accompany the
Summons and shall contain: (a) the date of
the hearing, which shall not be more than
thirty (30) days from the filing of the
Statement of Claim/s; and (b) the express
prohibition against the filing of a motion to
dismiss or any other motion under Section
16 of this Rule.
4. Defendant shall file a 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.
Compulsory counterclaim
Defendant must aver his compulsory
counterclaim in the Response otherwise, the
defendant shall be barred from suing on the
counterclaim.
Permissive counterclaim
Permissive counterclaim may be filed
provided that the amount and nature
thereof are within the coverage of this Rule
and the prescribed docket and other legal
fees are paid.
PROHIBITED PLEADINGS AND MOTIONS
(SEC. 16)

The following pleadings, motions,
or petitions shall not be allowed in
the cases covered by this Rule:
1) Motion to dismiss the Statement of Claim/s;
2) Motion for a bill of particulars;
3) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
4) Petition for relief from judgment;
5) Motion for extension of time to file
pleadings, affidavits, or any other paper;
6) Memoranda;
7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8) Motion to declare the defendant in default;
9) Dilatory motions for postponement;
10) Reply and rejoinder;
11) Third-party complaints; and
Interventions
10.D. APPEARANCES
The parties shall personally appear on the
designated date of hearing.
When is not personal appearance allowed
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-kin 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.
No attorney shall appear in behalf of or
represent a party at the hearing, unless the
attorney is the plaintiff or defendant.
Request for postponement
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.
10.E. HEARING; DUTY OF JUDGE
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At the hearing, amicable settlement must first
be resorted to and if such fail the hearing shall
immediately proceed in an informal and
expeditious manner and be terminated within
the same day.
10.F. FINALITY OF JUDGMENT
After the hearing, the court shall render its
Decision within twenty-four (24) hours
from termination of the hearing. 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, executory and
unappealable.
Execution shall issue upon motion of the
winning party.
Causes of Dismissal of the Statement of
Claim(s)
a. non-submission of the required affidavits
(Sec. 9)
b. motion to sue as indigent is denied and
plaintiff fails to pay the docket fees—without
prejudice (Sec. 10)
c. plaintiff misrepresents that he/she/ it is not
engaged in the business of banking, lending
or similar activities when in fact he/she/it is
so engaged- with prejudice (Sec. 11)
d. as to any defendant not served with
summons- without prejudice (Sec. 12)
e. failure of the plaintiff to appear at the
hearing- without prejudice (Sec. 20)
f. failure of both parties to appear at the
hearing- with prejudice (Sec. 20)
11. RULES OF PROCEDURE
FOR ENVIRONMENTAL
CASES
11.A. SCOPE AND APPLICABILITY
OF THE RULE
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These Rules shall govern the procedure in civil, Law Description

criminal and special civil actions before the RA 9147 Wildlife Conservation and Protection
Regional Trial Courts, Metropolitan Trial Courts, Act
Municipal Trial Courts in Cities, Municipal Trial RA 9175 Chainsaw Act
Courts and Municipal Circuit Trial Courts RA 9275 Clean Water Act
involving enforcement or violations of RA 9483 Oil Spill Compensation Act of 2007
environmental and other related laws, rules and
CA 141 The Public Land Act (some
regulations such as but not limited to the provisions)
following: R.A. 6657 Comprehensive Agrarian Reform Law
of 1988
Law Description RA 7160 Local Government Code of 1991
Act 3572 Prohibition Against Cutting of
RA 7161 Tax Laws Incorporated in the
Tindalo, Akli, and Molave Trees;
Revised Forestry Code and Other
PD 705 Revised Forestry Code;
Environmental Laws (Amending the
PD 856 Sanitation Code;
NIRC);
PD 979 Marine Pollution Decree;
RA 7308 Seed Industry Development Act of
PD 1067 Water Code; 1992;
PD1151 Philippine Environmental Policy of RA 7900 High-Value Crops Development Act
1977;
RA 8048 Coconut Preservation Act
PD 1433 Plant Quarantine Law of 1978;
RA 8435 Agriculture and Fisheries
PD 1586 Establishing an Environmental Modernization Act of 1997
Impact Statement System Including
RA 9522 The Philippine Archipelagic Baselines
Other Environmental Management
Law
Related Measures and for Other
RA 9593 Renewable Energy Act of 2008
Purposes;
RA 3571 Prohibition Against the Cutting, RA 9637 Philippine Biofuels Act; and Other
Destroying or Injuring of Planted or existing laws that relate to the
Growing Trees, Flowering Plants and conservation, development,
Shrubs or Plants of Scenic Value preservation, protection and
along Public Roads, in Plazas, Parks, utilization of the environment and
School Premises or in any Other natural resources.
Public Ground;
RA 4850 Laguna Lake Development Authority 11.B. CIVIL PROCEDURE
Act;
RA 6969 Toxic Substances and Hazardous 11.B.1. Prohibition against Temporary
Waste Act;
Restraining Order And Preliminary
RA 7076 People‗s Small-Scale Mining Act;
Injunction
RA 7586 National Integrated Protected Areas
System Act including all laws,
Except the Supreme Court, no court can issue a
decrees, orders, proclamations and
TRO or writ of preliminary injunction against
issuances establishing protected
areas; lawful actions of government agencies that
RA 7611 Strategic Environmental Plan for enforce environmental laws or prevent violations
Palawan Act; thereof (Sec. 10, Part 2, Rule 2).
RA 7942 Philippine Mining Act;
RA 8371 Indigenous Peoples Rights Act; 11.B.2. Pre-Trial Conference; Consent
Decree
RA 8550 Philippine Fisheries Code;
RA 8749 Clean Air Act; Pre-Trial Conference
RA 9003 Ecological Solid Waste Management The judge shall put the parties and their
Act; counsels under oath, and they shall remain
RA 9072 National Caves and Cave Resource under oath in all pre-trial conferences. The
Management Act judge shall exert best efforts to persuade the

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parties to arrive at a settlement of the dispute.
The judge may issue a consent decree
approving the agreement between the parties in
accordance with law, morals, public order and
public policy to protect the right of the people to
a balanced and healthful ecology. Evidence not
presented during the pre-trial, except newly
discovered evidence, shall be deemed waived.
Consent Decree - refers to a judicially-
approved settlement between concerned parties
based on public interest and public policy to
protect and preserve the environment. (Rule 1,
Part 1).
Sec. 5, Rule 3 encourages parties to reach an
agreement regarding settlement through a
consent decree, which gives emphasis to the
public interest aspect in the assertion of the
right to a balances and healthful ecology.
Purposes:
1. To assist the parties in reaching a
settlement;
2. To mark the documents or exhibits to be
presented by the parties and copies
thereof to be attached to the records after
comparison with the originals;
3. To ascertain from the parties the
undisputed facts and admissions on the
genuineness and due execution of the
documents marked as exhibits;
4. To require the parties to submit the
depositions taken under Rule 23 of the
Rules of Court, the answers to written
interrogatories under Rule 25, and the
answers to request for admissions by the
adverse party under Rule 26;
5. To require the production of documents or
things requested by a party under Rule 27
and the results of the physical and mental
examination of persons under Rule 28;
6. To consider such other matters as may aid
in its prompt disposition;
7. To record the proceedings in the "Minutes
of Preliminary Conference" to be signed by
both parties or their counsels;
8. To mark the affidavits of witnesses which
shall be in question and answer form and
shall constitute the direct examination of
the witnesses;
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To attach the minutes together with the marked
exhibits before the pre-trial proper.
11.B.3. Prohibited Pleadings and Motions
The following pleadings or motions shall not be
allowed:
1) Motion for a bill of particulars;
2) Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed fifteen (15) days;
3) Motion to dismiss the complaint;
4) Motion to declare the defendant in default;
5) Reply and rejoinder; and
6) 3rd party complaint.
While the enumeration have been adopted in
part from the Rule on Summary Procedure in
response to the question of delay which often
accompanies regular cases, summary procedure
is not adopted in its entirety given the complex
and wide range of environmental cases.
Procedural safeguards have been introduced for
truly complex cases which may necessitate
further evaluation from the court. Among these
the exclusion of the motions for postponement,
new trial and reconsideration, as well as the
petition for relief from the prohibition.
Motion for postponement, motion for new trial
and petition for relief from judgment shall only
be allowed in certain conditions of highly
meritorious cases or to prevent a manifest
miscarriage of justice. The satisfaction of these
conditions is required since these motions are
prone abuse during litigation.
Motion for intervention is permitted in order to
allow the public to participate in the filing and
prosecution of environmental cases, which are
imbued with public interest. Petitions for
certiorari are likewise permitted since these raise
fundamentally questions of jurisdiction. Under
the Constitution, the SC may not be deprived of
its certiorari jurisdiction.
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11.B.4. Temporary Environmental
Protection Order (Tepo)
Issuance of Temporary Environmental
Protection Order
If it appears from the verified complaint with a
prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury:
1) The executive judge of the multiple sala
court before raffle or the presiding judge of
a single-sala court as the case may be, may
issue ex parte a TEPO effective for only
seventy-two (72) hours from date of the
receipt of the TEPO by the party or person
enjoined.
2) Within said period, the court where the case
is assigned, shall conduct a summary
hearing to determine whether the TEPO
may be extended until the termination of
the case.
3) The court where the case is assigned shall
periodically monitor the existence of acts
that are the subject matter of the TEPO
even if issued by the executive judge, and
may lift the same at any time as
circumstances may warrant.
4) The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO
(Sec. 8, Rule 2).
The Rules provide that an applicant who files for
the issuance of a TEPO is exempt from the
posting of a bond, but the Rules also provide for
safeguards for the possible pernicious effects
upon the party or person sought to be enjoined
by the TEPO:
1) A TEPO may only be issued in matters of
extreme urgency and the applicant will
suffer grave injustice and irreparable injury,
2) the TEPO is effective for only 72 hours; and
3) The court should periodically monitor the
existence of acts which are the subject
matter of the
4) TEPO, the TEPO can be lifted anytime as the
circumstances may warrant.
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While the TEPO may be issued ex parte, this is
more of the exception. The general rule on the
conduct of a hearing pursuant to due process
remains.
11.B.5. Judgment and Execution; Reliefs in
a Citizen‟s Suit
1) Any judgment directing the performance of
acts for the protection, preservation or
rehabilitation of the environment shall be
executory pending appeal unless restrained
by the appellate court (Sec. 2, Rule 5)
2) A judgment rendered pursuant to these
Rules is immediately executory. It may not
be stayed by the posting of a bond under
Rule 39 of the Rules of Court and the sole
remedy lies with the appellate court. The
appellate court can issue a TRO to restrain
the execution of the judgment and should
the appellate court act with grave abuse of
discretion in refusing to act on the
application for a TRO, a petition for
certiorari under Rule 65 can be brought
before the Supreme Court. Reliefs in a
Citizen‗s Suit (Sec. 5, Rule 2; Sec. 1, Rule 5)
3) Any Filipino citizen in representation of
others, including minors or generations yet
unborn, may file an action to enforce rights
or obligations under environmental laws.
Upon the filing of a citizen suit, the court
shall issue an order which shall contain a
brief description of the cause of action and
the reliefs prayed for, requiring all interested
parties to manifest their interest to
intervene in the case within fifteen (15)
days from notice thereof. The plaintiff may
publish the order once in a newspaper of a
general circulation in the Philippines or
furnish all affected barangays copies of said
order. Citizen suits filed under R.A. No. 8749
and R.A. No. 9003 shall be governed by
their respective provisions (Sec. 5, Rule 2).
4) If warranted, the court may grant to the
plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of
the environment and the payment of
attorney‗s fees, costs of suit and other
litigation expenses. It may also require the
violator to submit a program of
rehabilitation or restoration of the

environment, the costs of which shall be
borne by the violator, or to contribute to a
special trust fund for that purpose subject to
the control of the court (Sec. 1, Rule 5).
11.B.6. Permanent Environmental
Protection Order; Writ of Continuing
Mandamus
1) In the judgment, the court may convert the
TEPO to a permanent EPO or issue a writ of
continuing mandamus directing the
performance of acts which shall be effective
until the judgment is fully satisfied. The
court may, by itself or through the
appropriate government agency, monitor
the execution of the judgment and require
the party concerned to submit written
reports on a quarterly basis or sooner as
may be necessary, detailing the progress of
the execution and satisfaction of the
judgment. The other party may, at its
option, submit its comments or observations
on the execution of the judgment (Sec. 3, Rule
5).
2) In this provision, continuing mandamus is
made available as a final relief. As a
remedy, continuing mandamus is decidedly
an attractive relief. Nevertheless, the
monitoring function attached to the writ is
decidedly taxing upon the court. Thus, it is
meant to be an exceptional remedy. Among
others, the nature of the case in which the
judgment is issued will be a decisive factor
in determining whether to issue a writ of
continuing mandamus. A TEPO may be
converted into a writ of continuing
mandamus should the circumstances
warrant.
Writ of continuing mandamus
1) Continuing mandamus is a writ issued by a
court in an environmental case directing any
agency or instrumentality of the government
or officer thereof to perform an act or series
of acts decreed by final judgment which
shall remain effective until judgment is fully
satisfied (Sec. 4[c], Rule 1, Part1).
2) The concept of continuing mandamus was
originally enunciated in the case of
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(Concerned Residents of Manila Bay vs. MMDA,
GR 171947-98, December 18, 2008). The Rules
now codify the Writ of Continuing
Mandamus as one of the principal remedies
which may be availed of in environmental
cases.
11.B.7. Strategic Lawsuit against Public
Participation (SLAPP)
Refers to an action whether civil, criminal or
administrative, brought against any person,
institution or any government agency or local
government unit or its officials and employees,
with the intent to harass, vex, exert undue
pressure or stifle any legal recourse that such
person, institution or government agency has
taken or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental rights
(Sec. 4[g], Rule 1).
Notes:
1) A legal action filed to harass, vex, exert
undue pressure or stifle any legal recourse
that any person, institution or the
government has taken or may take in the
enforcement of environmental laws,
protection of the environment or assertion
of environmental rights shall be treated as a
SLAPP and shall be governed by these Rules
(Sec. 1, Rule 6).
2) In a SLAPP filed against a person involved in
the enforcement of environmental laws,
protection of the environment, or assertion
of environmental rights, the defendant may
file an answer interposing as a defense that
the case is a SLAPP and shall be supported
by documents, affidavits, papers and other
evidence; and, by way of counterclaim, pray
for damages, attorney‗s fees and costs of
suit. The court shall direct the plaintiff or
adverse party to file an opposition showing
the suit is not a SLAPP, attaching evidence
in support thereof, within a non-extendible
period of five (5) days from receipt of notice
that an answer has been filed. The defense
of a SLAPP shall be set for hearing by the
court after issuance of the order to file an
opposition within fifteen (15) days from
filing of the comment or the lapse of the
period (Sec. 2, Rule 6).
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3) The hearing on the defense of a SLAPP shall
be summary in nature. The parties must
submit all available evidence in support of
their respective positions. The party seeking
the dismissal of the case must prove by
substantial evidence that his acts for the
enforcement of environmental law is a
legitimate action for the protection,
preservation and rehabilitation of the
environment. The party filing the action
assailed as a SLAPP shall prove by
preponderance of evidence that the action is
not a SLAPP and is a valid claim (Sec. 3, Rule
6).
4) The defense of a SLAPP shall be resolved
within thirty (30) days after the summary
hearing. If the court dismisses the action,
the court may award damages, attorney‗s
fees and costs of suit under a counterclaim
if such has been filed. The dismissal shall be
with prejudice. If the court rejects the
defense of a SLAPP, the evidence adduced
during the summary hearing shall be treated
as evidence of the parties on the merits of
the case. The action shall proceed in
accordance with the Rules of Court (Sec. 4,
Rule 6).
5) Since a motion to dismiss is a prohibited
pleading, SLAPP as an affirmative defense
should be raised in an answer along with
other defenses that may be raised in the
case alleged to be a SLAPP.
11.C. SPECIAL PROCEEDINGS
11.C.1. Writ of Kalikasan
Definition. (Sec. 1, Rule 7).
The writ is a remedy
1) to a natural or juridical person, entity
authorized available by law, people‗s
organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
2) whose constitutional right to a balanced and
healthful ecology is violated, or threatened
with violation
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3) by an unlawful act or omission of a public
official or employee, or private individual or
entity,
4) involving environmental damage of such
magnitude
5) as to prejudice the life, health or property of
inhabitants in two or more cities or
provinces
Extraordinary remedy. The underlying
emphasis in the Writ of Kalikasan is magnitude
as it deals with damage that transcends political
and territorial boundaries. Magnitude is thus
measured according to the qualification set forth
in this Rule—when there is environmental
damage that prejudices the life, health or
property of inhabitants in two or more cities or
provinces.
Who may avail of the writ. The petition for
the issuance of a WOK can be filed by any of the
following:
a. a natural or juridical person;
b. entity authorized by law;
c. people‗s organization, non-government
organization, or any public interest group
accredited by or registered with any
government agency on behalf of persons
d. Whose constitutional right to a balanced and
healthful ecology is violated…involving
environmental damage of such magnitude
as to prejudice life, health, or property of
inhabitants in two or more cities or
provinces.
Those who may file for this remedy must
represent the inhabitants prejudiced by the
environmental damage subject of the writ. The
requirement of accreditation of a group or
organization is for the purpose of verifying its
existence. The accreditation is a mechanism to
prevent fly by night groups from abusing the
writ.
 Acts covered by the writ. The WOK is a
special remedy available against an unlawful
act or omission of a public official or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to prejudice the life, health or

property of inhabitants in two or more cities
or provinces.
 Where to file: To the SC or CA.
Exemption from payment of docket fees.
The exemption from payment of docket fees is
consistent with the character of the reliefs
available under the writ, which excludes
damages for personal injuries. This exemption
also encourages public participation in availing
of the remedy.
11.C.2. Prohibited Pleadings And Motions
1) Motion to dismiss
2) Motion for extension of time to file return
3) Motion for postponement
4) Motion for a bill of particulars
5) Counterclaim or cross-claim
6) Third-party complaint
7) Reply; and
8) Motion to declare respondent in default.
11.C.3. Discovery Measures
Ocular Inspection; order
Ocular Inspection
1) The motion must show that an ocular
inspection order is necessary to establish
the magnitude of the violation or the threat
as to prejudice the life, health or property of
inhabitants in two or more cities or
provinces.
2) It shall state in detail the place or places to
be inspected.
3) It shall be supported by affidavits of
witnesses having personal knowledge of the
violation or threatened violation of
environmental law.
Order
1) After hearing, the court may order any
person in possession or control of a
designated land or other property to permit
entry for the purpose of inspecting or
photographing the property or any relevant
object or operation thereon.
2) The order shall specify the person or
persons authorized to make the inspection
and the date, time, place and manner of
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making the inspection and may prescribe
other conditions to protect the constitutional
rights of all parties.
Production or inspection of documents or
things; order.
1) The motion must show that a production
order is necessary to establish the
magnitude of the violation or the threat as
to prejudice the life, health or property of
inhabitants in two or more cities or
provinces.
2) After hearing, the court may order any
person in possession, custody or control of
any designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the
return, to produce and permit their
inspection, copying or photographing by or
on behalf of the movant.
3) The production order shall specify the
person or persons authorized to make the
production and the date, time, place and
manner of making the inspection or
production and may prescribe other
conditions to protect the constitutional rights
of all parties.
o Paje vs Casino – Group is claiming that the
ECC was issued in violation of rules. Court
ruled that allegation cannot come within the
coverage of the writ of kalikasan because no
causal link or reasonable connection was
shown between the defects in the issuances
of ECC and the actual violation of
constitutional right to balanced and healthful
ecology.
o Arigo vs Swift – Petitioners sought directive
from Court in connection with grounding of
the USS Guardian on Tubbataha Reefs.
Court ruled that since the US were sued in
their official capacity, the principle of state
immunity bars the exercise of jurisdiction by
Court. For recovery of damages, it should
not be raised in writ but through separate
civil suit.
o West Tower Condo vs FPIC – Court ordered
to cease and desist from operating the
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leaking pipeline until further orders of the
court. TEPO was based on a petition filed by
the residents who claimed to have suffered
health and environmental hazards
11.C.4. Writ of Continuing Mandamus
1) Petition
2) When any agency or instrumentality of the
government or officer thereof unlawfully
neglects the performance of an act which
the law specifically enjoins as a duty
resulting from an office, trust or station in
connection with the enforcement or violation
of an environmental law rule or regulation
or a right therein, or unlawfully excludes
another from the use or enjoyment of such
right and
3) there is no other plain, speedy and
adequate remedy in the ordinary course of
law,
4) the person aggrieved thereby may file a
verified petition in the proper court, alleging
the facts with certainty, attaching thereto
supporting evidence, specifying that the
petition concerns an environmental law, rule
or regulation, and praying that judgment be
rendered commanding the respondent to do
an act or series of acts until the judgment is
fully satisfied, and
5) to pay damages sustained by the petitioner
by reason of the malicious neglect to
perform the duties of the respondent, under
the law, rules or regulations.
6) The petition shall also contain a sworn
certification of non-forum shopping.
Where to file the petition. The petition shall
be filed with the Regional Trial Court exercising
jurisdiction over the territory where the
actionable neglect or omission occurred or with
the Court of Appeals or the Supreme Court.
No docket fees. The petitioner shall be exempt
from the payment of docket fees.
Order to comment. If the petition is sufficient
in form and substance, the court shall issue the
writ and require the respondent to comment on
the petition within ten (10) days from receipt of
a copy thereof.Such order shall be servedon the
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respondents in such manner as the court may
direct,together with a copy of the petition and
any annexes thereto.
Expediting proceedings; TEPO. The court in
which the petition is filed may issue such orders
to expedite the proceedings, and it may also
grant a TEPO for the preservation of the rights
of the parties pending such proceedings.
Proceedings after the comment is filed.
After the comment is filed or the time for the
filing thereof has expired, the court may hear
the case which shall be summary in nature or
require the parties to submit memoranda. The
petition shall be resolved without delay within
sixty (60) days from the date of the submission
of the petition for resolution.
Judgment. If warranted, the court shall grant
the privilege of the writ of continuing mandamus
requiring respondent to perform an act or series
of acts until the judgment is fully satisfied and to
grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of the
respondent. The court shall require the
respondent to submit periodic reports detailing
the progress and execution of the judgment,
and the court may, by itself or through a
commissioner or the appropriate government
agency, evaluate and monitor compliance.
The petitioner may submit its comments or
observations on the execution of the judgment.
Return of the writ. The periodic reports
submitted by the respondent detailing
compliance with the judgment shall be
contained in partial returns of the writ. Upon full
satisfaction of the judgment, a final return of the
writ shall be made to the court by the
respondent. If the court finds that the judgment
has been fully implemented, the satisfaction of
judgment shall be entered in the court docket.
Procedurally, its filing before the courts is similar
to the filing of an ordinary writ of mandamus.
However, the issuance of a TEPO is made
available as an auxiliary remedy prior to the
issuance of the writ itself.
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As a special civil action, the WoCMa may be 11.D.3. Arrest without warrant; when
availed of to compel the performance of an act lawful
specifically enjoined by law. It permits the court
to retain jurisdiction after judgment in order to o When, in his presence, the person to be
ensure the successful implementation of the arrested has committed, is actually
reliefs mandated under the court‗s decision. For committing or is attempting to commit an
this purpose, the court may compel the offense; or
submission of compliance reports from the o When an offense has just been committed,
respondent government agencies as well as and he has probable cause to believe based
avail of other means to monitor compliance with on personal knowledge of facts or
its decision. Its availability as a special civil circumstances that the person to be
action likewise complements its role as a final arrested has committed it.
relief in environmental civil cases and in the
WOK, where continuing mandamus may likewise Roldan vs Arca – CFI ordered the seizure of 2
be issued should the facts merit such relief. vessels in connection with illegal fishing. Valid,
because the vessel can be quickly moved out of
Writ of Kalikasan vs Writ of Continuing the locality or jurisdiction in which the search
Mandamus warrant must be sought before such warrant
could be secured.
Writ of Continuing Writ of Kalikasan
Mandamus 11.D.4. Strategic Lawsuit Against Public
Subject Directed against Directed against
Matter unlawful neglect in unlawful act Participation
performance of
ministerial act Strategic lawsuit against public participation
Who may Personally aggrieved Broad range (SLAPP) refers to an action whether civil, criminal
file
Respondent Government and its Even private
or administrative, brought against any person,
officers individual may be institution or any government agency or local
made respondent government unit or its officials and employees,
Venue RTC/CA/SC SC/CA with the intent to harass, vex, exert undue
Discovery No provision With specific pressure or stifle any legal recourse that such
measure provision
Payment of Allowed Not allowed person, institution or government agency has
damages taken or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental rights.
11.D. CRIMINAL PROCEDURE
o May file a motion to dismiss on the ground
11.D.1. Who May File that the criminal action is a SLAPP.
o Summary hearing
Any offended party o Resolution.

11.D.2. Institution of criminal and civil
actions
When a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action unless the
complainant waives the civil action, reserves the
right to institute it separately or institutes the
civil action prior to the criminal action.
 Grant the motion if the accused
establishes in the summary hearing that
the criminal case has been filed with
intent to harass, vex, exert undue
pressure or stifle any legal recourse that
any person, institution or the government
has taken or may take in the enforcement
of environmental laws, protection of the
environment or assertion of environmental
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 If the court denies the motion, the court
shall immediately proceed with the
arraignment of the accused.
11.D.5. Procedure in Custody and
disposition of seized items
1. The apprehending officer having initial
custody and control of the seized items,
equipment, paraphernalia, conveyances and
instruments shall physically inventory and
whenever practicable, photograph the same
in the presence of the person from whom
such items were seized.
2. Thereafter, the apprehending officer shall
submit to the issuing court the return of the
search warrant within five (5) days from
date of seizure or in case of warrantless
arrest, submit within five (5) days from date
of seizure, the inventory report, compliance
report, photographs, representative samples
and other pertinent documents to the public
prosecutor for appropriate action.
3. Upon motion by any interested party, the
court may direct the auction sale of seized
items, equipment, paraphernalia, tools or
instruments of the crime. The court shall,
after hearing, fix the minimum bid price
based on the recommendation of the
concerned government agency. The sheriff
shall conduct the auction.
4. The auction sale shall be with notice to the
accused, the person from whom the items
were seized, or the owner thereof and the
concerned government agency.
5. The notice of auction shall be posted in
three conspicuous places in the city or
municipality where the items, equipment,
paraphernalia, tools or instruments of the
crime were seized.
6. The proceeds shall be held in trust and
deposited with the government depository
bank for disposition according to the
judgment.
11.D.6. Bail
o Where 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
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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 available, with any
metropolitan trial judge, municipal trial
judge or municipal circuit trial judge therein.
If the court grants bail, the court may issue
a hold-departure order in appropriate cases.
o Duties of the court before granting the
application for bail
a. Judge must read the information in a
language known to and understood by the
accused
b. Require the accused to sign a written
undertaking, as follows:
1. To appear before the court that issued
the warrant of arrest for arraignment
purposes on the date scheduled, and if
the accused fails to appear without
justification on the date of arraignment,
accused waives the reading of the
information and authorizes the court to
enter a plea of not guilty on behalf of
the accused and to set the case for trial;
2. To appear whenever required by the
court where the case is pending; and
3. To waive the right of the accused to be
present at the trial, and upon failure of
the accused to appear without
justification and despite due notice, the
trial may proceed in absentia.
11.D.7. Arraignment and Plea
o Arraignment. - Set within fifteen (15) days
from the time it acquires jurisdiction over
the accused, with notice to the public
prosecutor and offended party or concerned
government agency that it will entertain
plea-bargaining on the date of the
arraignment.
o Plea-bargaining. - Where the prosecution
and offended party or concerned
government agency agree to the plea
offered, court shall:
a. Issue an order which contains the plea-
bargaining arrived at;
b. Proceed to receive evidence on the civil
aspect of the case, if any; and

c. Render and promulgate judgment of
conviction, including the civil liability for
damages.
11.D.8. Pre-Trial
o Setting of pre-trial conference. - 30 days
After the arraignment
o Preliminary conference, purposes:
a. To assist the parties in reaching a
settlement of the civil aspect of the case;
b. To mark the documents to be presented
as exhibits;
c. To attach copies thereof to the records
after comparison with the originals;
d. To ascertain from the parties the
undisputed facts and admissions on the
genuineness and due execution of
documents marked as exhibits;
e. To consider such other matters as may aid
in the prompt disposition of the case;
f. To record the proceedings during the
preliminary conference in the Minutes of
Preliminary Conference to be signed by
the parties and counsel;
g. To mark the affidavits of witnesses which
shall be in question and answer form and
shall constitute the direct examination of
the witnesses; and
h. To attach the Minutes and marked exhibits
to the case record before the pre-trial
proper. The parties or their counsel must
submit to the branch clerk of court the
names, addresses and contact numbers of
the affiants.
o Pre-trial duty of the judge
1. Place the parties and their counsels under
oath;
2. Adopt the minutes of the preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits
or substituted photocopies and admissions
on the genuineness and due execution of
documents, and list object and testimonial
evidence;
3. Scrutinize the information and the
statements in the affidavits and other
documents which form part of the record
of the preliminary investigation together
with other documents identified and
marked as exhibits to determine further
admissions of facts as to:
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a. The court‘s territorial jurisdiction relative
to the offense(s) charged;
b. Qualification of expert witnesses; and
c. Amount of damages;
4. Define factual and legal issues;
5. Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall
contain the time frames for the different
stages of the proceeding up to
promulgation of decision;
6. Require the parties to submit to the
branch clerk of court the names,
addresses and contact numbers of
witnesses that need to be summoned by
subpoena; and
7. Consider modification of order of trial if
the accused admits the charge but
interposes a lawful defense.
o Manner of questioning. - All questions or
statements must be directed to the court.
o Agreements or admissions. - 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, Rule 118 of the Rules of Court shall be
approved by the court.
o Record of proceedings. - All proceedings
during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed
by the parties or their counsels.
o Pre-trial order. - within ten (10) days after
the termination of the pre-trial, setting forth
the actions taken during the pre-trial
conference, the facts stipulated, the
admissions made, evidence marked, the
number of witnesses to be presented and
the schedule of trial. The order shall bind
the parties and control the course of action
during the trial.
11.D.9. Subsidiary liability
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary liability
against a person or corporation subsidiary liable
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under Article 102 and Article 103 of the Revised
Penal Code
11.E. EVIDENCE
- Illustrative Cases
11.E.1 Precautionary Principle
Precautionary principle states that when human
activities may lead to threats of serious and
irreversible damage to the environment that is
scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.
o Applicability. - When there is a lack of full
scientific certainty in establishing a causal
link between human activity and
environmental effect
o Better safe than sorry
o Standards for application
a. Threats to human life or health;
b. Inequity to present or future generations
c. prejudice to the environment without legal
consideration of the environmental rights
of those affected.
11.E.2. Documentary Evidence
o Photographic, video and similar evidence. -
Admissible when authenticated by the
person who took the same, by some other
person present when said evidence was
taken, or by any other person competent to
testify on the accuracy thereof.
o Entries in official records made in the
performance of his duty by a public officer
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of the Philippines, or by a person in
performance of a duty specially enjoined by
law, are prima facie evidence of the facts
therein stated.
o Leatch vs Director General – Appeal against
the granting of license to take and kill
endangered fauna from an area where a
road was proposed to be constructed. Under
precautionary principle, consideration of the
state of knowledge or uncertainty regarding
a species, the potential for serious or
irreversible harm is clearly consistent with
subject matter, scope, and purpose.
Precautionary principle is most apt in a
situation where there is a scarcity of
scientific knowledge of species population,
habitat and impact
o Greenpeace Australia vs Redbank –
Greenpeace objected the development of
power station with permit. Precautionary
principle is not applicable since the principle
does not require, however, that the
greenhouse effect issue be given
precedence over all others.
o BT Talong Case – The contrasting findings in
hundreds of scientific studies, Court held
that the current scientific research indicates
that the biotech industry has not sufficiently
addressed the uncertainties over the safety
of GM foods and crops. The uncertainty,
possibility of irreversible harm and possibility
of serious harm warrant the application of
precautionary principle.