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 SPECIAL CIVIL 3. The parties to be interpleaded must

make effective claims; and
ACTIONS 4. The subject matter must be one and
the same.
RULES 62 TO 71

SPECIAL CIVIL ACTIONS UNDER THE RULES Interpleader Intervention

OF COURT: (Rule 62) (Rule 19)
Special Civil Special Civil Actions Kind of Filed as an Filed as an
Actions Initiated By Intitiated By action original special ancillary action
Complaints Petitions civil action. depending on
Principal action the original
a. Interpleader a. Declaratory Relief
action.
b. Expropriation b. Review of
c. Foreclosure of Adjudication of the When Plaintiff has no Plaintiff has
Real Estate COMELEC/COA proper to interest in the interest in the
Mortgage c. Certiorari file subject matter matter under
of the action or litigation, or
d. Partition d. Prohibition has an interest in the success
e. Forcible Entry e. Mandamus therein which, of either
and Unlawful f. Quo Warranto in whole or in parties or an
Detainer g. Contempt part, is not interest against
disputed by the both to be
other parties. adversely
Note: Refer to the table of jurisdiction for Special
affected by the
Civil Action.
distribution of
the property in
the court or an
RULE 62 officer thereof.
INTERPLEADER Status of Defendants Defendants are
defendan are being sued already original
t precisely to parties to the
INTERPLEADER – is a special civil action implead them. pending suit.
filed by a person against whom two The Issue an order Motion to
conflicting claims are made upon the same Court’s requiring the intervene
subject matter and over which he claims no action allowance or addressed to
interest, to compel the claimants to disallowance the sound
interplead and to litigate their conflicting of conflicting discretion of
claims among themselves (Sec. 1, Rule 62, claimants to the court.
implead with
Rules of Court)
one another.
When to File:
Within a reasonable time after a dispute has
arisen without waiting to be sued by either
contending claimants. Otherwise, barred by
laches or undue delay. RULE 63
DECLARATORY RELIEF AND
Effect When a Claimant Fails to Plead
Within the Time Fixed: SIMILAR REMEDIES
The court may, on motion, declare him in
default and thereafter render judgment Two Remedies;
barring him from any claim in respect to the 1. Declaratory Relief
subject matter. 2. Similar Remedies

Requisites for Interpleader:  The Procedural distinction between the two

1. The plaintiff claims no interest in the
subject matter or his claim thereto is not
disputed;
2. There must be at least two or more
conflicting claimants;
is that in actions falling under similar
remedies, the court is bound to render
judgment, whereas in actions falling under
declaratory relief, the court may refuse to
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exercise the power to declare petitioner’s
right and to construe the instrument.
 There is yet no cause of action in a strict
sense under declaratory relief. (lectures in
Remedial Law, Bengzon, p. 242, 1959 Edition)
 Where a declaratory judgment as to disputed
fact would be determinative of issues rather
than a construction of definite stated rights,
status, and other relations, commonly
expressed in written instruments, the case is
not one for declaratory relief.
The similar remedies are: (a) action for
reformation of an instrument; (b) action to
quiet title; and (c) action to consolidate
ownership under Article 1607 of the Civil
Code.
Requisites for Declaratory Relief:
1. Justiciable controversy;
2. Adverse claim between real parties in
interest;
3. Subject matter is a written instrument or
a statute or a law;
4. Relief sought is to determine the rights
and duties under the statute;
5. There must be no breach or violation of
instrument or statute; and
6. No other available or sufficient remedy.
7. The issue involved must be ripe for
judicial determination.
The subject matter in a petition for
declaratory relief is any of the following:
a) A deed;
b) A will;
c) A contract or other written
instrument;
d) A statute;
e) An executive order or regulation;
f) An ordinance; or
g) Any other governmental regulation
(Sec. 1, Rule 63, Rules of Court)
The enumeration of the subject matter is
exclusive. Hence, an action not based on
any of the enumerated subject matters
cannot be the proper subject of declaratory
relief.
WHEN DECLARATORY RELIEF IS NOT
AVAILABLE:
1. Declaration of Citizenship and
Registration Certificate - unilateral in
nature and without conflicting adverse
interest.
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2. Court Decisions – There are other
existing remedies in connection
therewith such as an appeal or
motion for clarificatory judgment.
3. 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)
CONVERSION INTO ORDINARY ACTION:
a. File a petition for DECLARATORY
RELIEF under Rule 63 if there is NO
BREACH or VIOLATION of documents
before commencement of the action.
b. File an ORDINARY CIVIL ACTION if
there is already a breach or violation of
documents before the commencement
of the action.
c. 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.
WHERE REFUSAL TO GRANT
DECLARATORY RELIEF JUSTIFIED:
1. The decision will not terminate the
controversy or uncertainty giving rise to
the action; or
2. The declaration is not necessary and
proper under the circumstances.
Ordinary Action Declaratory Relief
Writ of execution is
No writ of execution.
available.
There is breach or No breach or
violation of right. violation of right.
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Grounds and manner Additional ground for
of dismissal are dismissal:
governed by Rules Rule 63, Sec. 5- By
16 and 17. motion or motu
proprio, court may
refuse to declare
rights and construe
instruments if the
decision would not
terminate the
uncertainty or
controversy which
gave rise to the
action; or if it is not
necessary and
proper under the
circumstances.
▪ The concept of a cause of action as “an act or
omission by which a person violates the rights
of another” under ordinary civil action does
not apply in declaratory relief; there must be
NO BREACH OR VIOLATION of the
instrument or statute involved.
▪ A third-party complaint is improper when the
main case is a special civil action for
declaratory relief.
▪ Compulsory counterclaim based on or arising
from the same transaction, deed or contract
or which petition is based may be filed and
entertained in a Declaratory Relief.
An Action for Reformation is not an action
brought to reform a contract but to reform
the instrument evidencing the contract. The
action for reformation presupposes that
there is nothing wrong with the contract itself
because there is a meeting of minds
between the parties (Art. 1359, Civil Code of the
Philippines) A contract does not refer to a deed
or an instrument but to a meeting of the
minds of the parties.
The instrument is to be reformed because
despite the meeting of the minds of the
parties as to the object and cause of the
contract, the instrument which is supposed
to embody the agreement of the parties
does not reflect their true agreement by
reason of mistake, fraud, inequitable
conduct or accident. The action is brought
so the true intention of the parties may be
expressed in the instrument.
The concept of Consolidation of
Ownership under Art. 1607 of the Civil
Code has its origins in substantive
provisions of the law on sales.
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An Action to Quiet Title is an action
brought to remove a cloud on title to real
property or any interest therein. 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).
RULE 64
REVIEW OF JUDGMENTS
AND FINAL ORDERS OR
RESOLUTIONS OF THE
COMELEC AND COA
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.
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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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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), in a
petition for Writ of Amparo (Sec. 19 of the Rule
on Writ of Amparo) and in a petition for a writ of
habeas data (Sec. 19, Rule on the Writ of Habeas
Data).

MODE OF REVIEW: CERTIORARI - a writ issued by the

As an INDEPENDENT CIVIL ACTION under superior court to the inferior court, board or
Rule 65, to be filed exclusively with the S.C.. officer exercising judicial or quasi-judicial
 Filing of petition for certiorari does not stay functions whereby the record of a particular
execution of judgment or final order or case is ordered to be elevated for review
resolution sought to be reviewed unless the and correction in matters of law.
petitioner files for TRO and Preliminary
Injunction. Writ of Certiorari - is a prerogative writ,
never demandable as a matter of right,
Rule 64 Rule 65 never issued except in the exercise of
Time 30 days 60 days jurisdiction.
Frame
Reckonin From notice From receipt of Requisites for Certiorari:
g Period of judgment. denial of Motion 1. There must be a controversy;
for 2. Respondent is exercising judicial or
Reconsideration. quasi-judicial functions;
Power of Not under Under concurrent 3. Respondents acted without or in
the court concurrent jurisdiction. excess of its jurisdiction or acted with
to hear jurisdiction grave abuse of discretion; and
because 4. There must be no appeal or other plain,
“exclusive speedy and adequate remedy.
original”.
 Certiorari lies against an order granting
execution pending appeal when the
same is founded. The fact that the
losing party had also appealed from
RULE 65 the judgment does not bar the certiorari
CERTIORARI, PROHIBITION, proceedings, as the appeal could not
be an adequate remedy from such
MANDAMUS premature condition (Manocop, et al.vs.
Equitable PCIB, et al., G.R. No. 162814-17,
August 25, 2005).
A petition for certiorari under Rule 65 is a
special civil action. It is not a mode of PROHIBITION—is a legal remedy,
appeal. It is an original action independent provided by common law, available only
from the principal action which resulted in when the usual and ordinary proceedings
the rendition of the judgment or order at law or in equity are inadequate to afford
complained of. redress, prerogative in character to the
extent that it is not always demandable of
Certiorari is a remedy for the correction of right, to prevent courts or other tribunals,
errors of jurisdiction, not errors of judgment. officers or persons, from usurping or
It is an original and independent action that exercising a jurisdiction with which they
was not part of the trial that had resulted in have not been vested by law.
the rendition of the judgment or order  Prohibition may issue enjoining the judge of
complained of. More importantly, since the court of improper venue from taking
issue is jurisdiction, an original action for cognizance of the case (Feria Noche. Civil
certiorari may be directed against an
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Procedure Annotated, Volume 2. 2001 Edition. Distinction between Mandamus
Page 482).
and Injunction
Mandamus Injunction
MANDAMUS a command issuing from a Remedial Preventive
court of law of competent jurisdiction, in the Redress of past Prevent future injury.
name of the state or sovereign, directed to grievance.
some inferior court, tribunal, or board, or
Active remedy; Conservative
some corporation or person, requiring the change state of affairs. remedy; preserve
performance of a particular duty therein status quo.
specified, which duty results from the official
station of the party to whom the writ is
Mandamus not Resorted to Compel a
directed or from operation of law.
Discretionary Duty:
Requisites of Mandamus: Mandamus is applicable only to a
1. There must be a clear legal right or duty; ministerial duty. HOWEVER, it can be
2. The act to be performed must be used to the extent of requiring the
PRACTICAL – within the powers of the performance of a discretionary duty to act
respondent to perform such that if the but not to require performance of such duty
writ of mandamus was issued, he can in a particular manner.
comply with it, or else its essence will be
defeated; An original action for certiorari, prohibition,
3. The respondent must be exercising a mandamus is an INDEPENDENT CIVIL
MINISTERIAL DUTY – a duty which is ACTION and as such, it:
absolute and imperative and involves a. Does not interrupt the course of the
merely its execution; principal action;
4. The duty or act to be performed must be b. Does not affect the running of the
EXISTING – a correlative right will be period of the reglementary periods
denied if not performed by the involved in the proceedings;
respondents; and c. Does not stay the execution of the
5. No appeal or other plain, speedy and judgment, unless a temporary
adequate remedy in the ordinary course restraining order or writ of preliminary
of law. Preliminary Injunction must be injunction has been issued.
sought.
EXHAUSTION OF ADMINISTRATIVE
Instances where There is No Appeal: REMEDIES
1. Law does not provide for an appeal: General Rule: Mandamus will not be issued
a. Not appealable when administrative remedies are
b. No provision for an appeal e.g., Labor available.
Exceptions:
Code
a. If party is in estoppel; and
c. Interlocutory order
b. Pure questions of law are raised
2. The right to appeal having been lost with
or without the appellant’s negligence
Jurisdictional Issue. A petition for
certiorari must be based on jurisdictional
Purpose of Mandamus:
grounds because as long as the
To compel the performance, when refused,
respondent acted with jurisdiction, any error
of a ministerial duty, this being its main
committed by him or it in the exercise
objective. It does not require anyone to fulfill
thereof will amount to nothing more than an
a contractual obligation or to compel a
error of judgment which may be reviewed
course of conduct, nor to control or review
or corrected by appeal. (Microsoft vs. Best Deal,
the exercise of discretion. 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

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 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.
 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.
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.
Exception:
1. Where the order is a patent nullity, as
where the court a quo has no
jurisdiction;
2. 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;
3. 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;
4. Where the subject matter of the action is
perishable;
5. Where under the circumstances, a
motion for reconsideration would be
useless;
6. Where petitioner was deprived of due
process and there is extreme urgency
for relief;
7. Where in a criminal case, relief from
order of arrest is urgent and the granting
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of such relief by the trial court is
improbable;
8. Where the proceedings in the lower
court are a nullity for lack of due
process;
9. Where the proceedings was ex parte or
in which the petitioner had no
opportunity to object; and
10. 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. (SC
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:
1. When appeal does not constitute a
speedy and adequate remedy;
2. When orders were issued whether in
excess of or without jurisdiction;
3. For certain special considerations such
as for public policy or public welfare;
4. When the order is a patent nullity;
5. When the decision in the certiorari case
will avoid future litigation.
Material Dates Rule
Dates that must be contained in the
petition:
1. Date of receipt of the copy of the
assailed decision, order or resolution.
2. Date when Motion for Reconsideration
or Motion for New Trial was filed.
3. Date of receipt of the denial of said
Motion.
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“Adequate Remedy” – A remedy which is petitioner from the injurious effects of that
equally beneficial, speedy and sufficient, not judgment and the acts of the inferior court or
merely a remedy which at some time in the future tribunal (Pioneer Insurance Surety Corp. vs.
will bring about a revival of judgment of the lower Hontanosas, 78 SCRA 466)
court complained of in the Certiorari proceeding,
but a remedy which will promptly relieve the
DISTINCTIONS BETWEEN RULE 45 AND RULE 65
Petition for Review on Certiorari
Under Rule 45 (Mode of Appeal)
Basis Pure questions of law.
What it Involves Involves the review of judgment,
award, or final order on the merits.
Parties Petitioner and respondent are original
parties to the action and the lower
court is not impleaded.
Petition for Review on Certiorari
Under Rule 45 (Mode of Appeal)
Where to File Only with the S.C..
Period for Filing 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.
S.C. may grant an extension of 30
days.
Effect It stays the judgment, award, or order.
Filing of a Motion Prior filing of a motion for
for Reconsideration reconsideration is not required.
Jurisdiction of the Appellate jurisdiction from the C.A.,
SC Sandiganbayan, CTA, RTC and other
courts.
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Petition for Certiorari Under
Rule 65 (Original 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 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.
Petition for Certiorari Under
Rule 65 (Original Action)
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.
A motion for reconsideration is,
generally, a condition precedent.
Concurrent original jurisdiction with
the RTC, C.A. and the S.C. and
exclusive original jurisdiction of S.C.
as to judgment, final order or
resolution of COMELEC and COA.
115
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DISTINCTIONS BETWEEN CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI PROHIBITION MANDAMUS

Grounds 1. Without jurisdiction; 1. Without jurisdiction; 1. Neglects the
2. Excess of jurisdiction; 2. Excess of jurisdiction; performance of an act
3. Grave abuse of 3. Grave abuse of 2. Excludes another from
jurisdiction. jurisdiction. use and enjoyment of
right or office
Respondent 1. Tribunal; 1. Tribunal; 1. Tribunal;
2. Board; 2. Board; 2. Board;
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
3. Ministerial duty 3. Ministerial duty
Condition No appeal or plain, speedy No appeal or plain, speedy No appeal or plain, speedy
or adequate remedy. or adequate remedy. or adequate remedy.
Requirement  Original copy of  Original copy of  Original copy of
judgment, certification judgment, certification judgment, certification
of non-forum-shopping of non-forum-shopping of non-forum-shopping
 Payment of  Payment of  Payment of docket fees
docket fees docket fees
Nature of the Corrective – To correct Preventive and negative – Affirmative or Positive (If
Remedy usurpation of jurisdiction. To restrain or prevent the performance of a duty
usurpation of jurisdiction. is ordered) or it is negative
(if a person is ordered to
desist from excluding another
from a right or office)
CERTIORARI PROHIBITION MANDAMUS
Relief (prayer) 1. Annulment or 1. Desistance 1. To do the act required to
2. Modification of 2. Equitable relief be done to protect the
judgment or order rights of the petitioner
3. Equitable relief 2. To pay the damages
sustained by the petitioner
by reason of the wrongful
acts of the respondents.

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117
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 RULE 66
QUO WARRANTO
QUO WARRANTO literally means “by
what authority” and is a proceeding or writ
issued by the court to determine the right to
use an office, position or franchise and to
oust the person holding or exercising such
office, position, or franchise if his right is
unfounded or if a person performed acts
considered as grounds for forfeiture of said
exercise of position, office or franchise.
Under the Rules of Court, it is a special civil
action commenced by a verified petition
against the following:
a) A person who usurps a public office,
position or franchise;
b) A public officer who performs an act
constituting forfeiture of a public
office; or
c) An association which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority to do so.
GROUNDS FOR QUO WARRANTO
PROCEEDING (Sec. 1, Rule 66)
An action for the usurpation of a public
office, position or franchise may be
commenced by a verified petition brought in
the name of the Republic of the Philippines
against:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office; position or franchise;
2. A public officer who does or suffers an
act which, by the provision of law
constitutes a ground for forfeiture of his
office; and
3. An association which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority so to act.
Requirements in Filing Quo Warranto:
1. Legal basis, that is entitlement to the
office;
2. Must have claim to the office.
 Jurisdiction is with the RTC, CA or SC.
 Venue is provided for by law: Where 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).
Quo Warranto Mandamus
Designed to try the Applicable only in
right or title to the cases where the right
office, the right to the to the office is NOT in
office itself is dispute.
disputed.
Action is directed to Against the person
the usurper or the who cause the
one who holds office usurpation
in question
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.
Quo Warranto In Electoral Proceeding vs.
Quo Warranto Under Rule 66
Quo Warranto in Quo Warranto
Electoral
Proceedings (Rule 66)
To contest the right of Prerogative writ which
an elected public can be brought by the
 officer to hold public Solicitor General or As for the damages, it must be filed
office. any person who within 1 year from date of entry of judgment
claims better title to establishing the right under the Quo
the position, public Warranto proceeding.
office or franchise
being usurped, The periods within which the quo
intruded into or warranto action should be brought are
unlawfully held. conditions precedent to the existence of a
An electoral Three grounds: cause of action.
proceeding under the a. Usurpation
Omnibus Elections b. Forfeiture  The one-year period is not interrupted by the
Code for the prosecution of any administrative remedy. As in
exclusive purpose of c. Illegal
quo warranto proceeding, no one is compelled
impugning the association to resort to administrative remedies since public
election of a public interest requires that the right to public office
officer on the ground should be determined as speedily as possible.
of ineligibility or (Palma-Fernandez vs. Dela Paz, 160 SCRA
751)
disqualification to
hold the office, or
disloyalty to Republic.
Petition must be filed Presupposes that the RULE 67
within 10 days after respondent is already
the proclamation of actually holding office
EXPROPRIATION
the candidate. and action must be
commenced within
one year from cause
EMINENT DOMAIN is the right of the State
of ouster or right of to acquire private property for public use
petitioner to hold upon the payment of just compensation.
office arose
May be filed by any The petitioner must EXPROPRIATION is the procedure to be
registered voter for be the government or observed in the exercise of the right of
the same office and, the person entitled to eminent domain.
who, even if the the office and who
petition prospers, would assume the What Cannot be Expropriated:
would not be entitled same if his action 1. Money; and
to that office. succeeds. 2. Choses in action
Actual or Person adjudged
compensatory entitled to the office Who Has The Power To Expropriate
damages are may also bring an 1. State by its inherent power
recoverable in quo action (separate) 2. Government’s instrumentalities. GOCC,
warranto under the against the Other agency as duly authorized by law.
Omnibus Election respondent to recover
Code. damages.
Requirements In Filing The Complaint:
1. The complaint must be verified.
Periods For Filing Quo Warranto 2. The defendant can only file an answer
Proceeding And Action For Damages instead of a motion to dismiss.
Arising Therein: 3. The complaint shall join as defendants
Quo Warranto must be filed within ONE all persons owning or claiming to own,
YEAR from the cause of such ouster, or the or occupying, any part of the land
unlawful exclusion of the rightful claimant expropriated. If a known owner is not
from the office; or within one year when the joined as defendant, he is entitled to
right of the petitioner to hold such office or intervene in the proceedings or if he is
position arose EXCEPT when there was joined but not served with the process
continued assurance from the government, and the proceeding is already closed
through its responsible officers that lead the before he came to know of the
petitioners to bide his time and wait for the condemnation, he may maintain an
fulfillment of its commitment. independent suit for damages.
Who may file?
 State, gov’t instrumentalities,
GOCC, other agency as long as duly
authorized by law.
Requisites for Authorizing Immediate
Entry:
1. Filing of the complaint for expropriation
sufficient in form and substance;
2. Deposit of the amount equivalent to 1/5
of the fair market value of the property
to be expropriated based on its current
tax declaration (City of Iloilo vs. Legaspi,444
SCRA 269).
 Deposit of amount equal to assessed value
of property with an authorized government
depositary gives plaintiff the right to take
possession on or after due notice to
defendant.
 Deposit shall be in money; unless court
authorizes a certificate of deposit by a
government bank.
 If personal property, its value shall be
provisionally ascertained and amount to be
deposited shall be fixed by the court.
Purpose of Preliminary Deposit (Sec. 2,
Rule 67)
1. Provide for damages if court finds
plaintiff has no right to expropriate.
2. Advance payment for just
compensation. (Visayan Refining Co. vs.
Camus, 40 Phil 550)
Defenses and Objections (Sec. 3, Rule 67)
 If the defendant has no objection or defense
to the action or taking of his property, he may
file and serve a notice of appearance and a
manifestation to that effect.
 If a defendant has any objection to the filing
of or the allegations in the complaint, or any
objection or defense to the taking of his
property, he shall serve his answer within the
time stated in the summons.
 No counterclaim, cross claim or third party
complaint shall be alleged or allowed in the
answer or any subsequent pleading.
 A defendant waives all defenses and
objections not so alleged but the court, in the
interest of justice, may permit amendments
to the answer to be made not later than 10
days from the filing thereof.
 Taking occurs not only when the government
actually deprives the owner of the property,
but also when there is a practical destruction
or material impairment of the value of the
property.
Defendant Cannot Be Declared In Default
Failure to file an answer would result to the
court’s judgment on the right to expropriate
without prejudice to the right to present
evidence on just compensation.
ORDER OF EXPROPRIATION
 An order declaring that the plaintiff has
lawful right to take the property upon the
payment of just compensation. (Sec. 4,
Rule 67)
Instances When The Court May Issue An
Order Of Expropriation:
1. Objections to and defenses against the
right of the plaintiff to expropriate the
property are overruled;
2. When no party appears to defend, as
required by this Rule.
 After the rendition of such order, the plaintiff
shall not permitted to dismiss or discontinue
the proceeding except on such terms as the
court deems just and equitable.
 The final order of expropriation may be
appealed within 30 days from notice, but
shall not prevent the court from determining
just compensation.
Ascertainment of Compensation
The court shall appoint not more than 3
competent and disinterested persons as
commissioners to ascertain just
compensation.
 Objections to the appointment of any
commissioner shall be filed within 10 days
from service, and shall be resolved 30 days
after all the commissioners shall have
received copies of the objections.
 The appointment of commissioners is
mandatory and cannot be dispensed with.
Report by Commissioners and Objection
Therefrom
All interested parties are allowed within 10
days upon being served copies of the
commissioners’ report to file objections to
the same
Uncertain Ownership and Conflicting
Claims
If there are conflicting claims on the property
or uncertainty with respect to its ownership,
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).
Rights of Plaintiff After Judgment and
Payment
1. To enter the property expropriated and
appropriate it for public use; or
2. Retain it should immediate possession
under Sec. 2 has been exercised.
When is Title Vested in Expropriation
1. For personal property - Upon payment
of just compensation.
2. For real property - Upon payment of just
compensation AND registration.
Plaintiff May Enter Into Possession of
The Property:
1. 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.
2. Upon payment or tender of
compensation fixed by the judgment and
payment of the costs by plaintiff.
Stages In Expropriation:
1. Determination of the authority of the
plaintiff to exercise the power of eminent
domain and the propriety of its exercise
in the context of the facts involved, and
2. Determination of just determination.
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).
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
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.
Effect of Judgment: Vests upon the plaintiff
the title to the real estate for
public use or purpose.
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)
 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.
“Republic Act No. 8974 otherwise known as
“An Act to Facilitate the Acquisition of Right
of Way, Site or Location for National
Government Infrastructure Projects and for
Other Purposes” and its Implementing Rules
and Regulations had modified Sec. 2 of Rule
67 in many respects.
While Rule 67 merely requires the
Government to deposit with an authorized
government depositary the assessed value
of the property for expropriation for it to be
entitled to a writ of possession, R.A. No.
8974 requires that the government make a
direct payment to the property owner before
the writ may issue. Moreover, such payment
is based on the zonal valuation of the BIR in
the case of land, the value of the
improvements or structures under the
replacement cost method, or if no such
valuation is available and in cases of utmost
urgency, the proffered value of the property
seized.
R.A. No. 8974, which provides for a
procedure eminently more favorable to the
property owner than Rule 67, inescapably
applies in instances when the national
government expropriates property “for
national government infrastructure projects.”
Thus, if expropriation is engaged in by the
national government for purposes other than
national infrastructure projects, the
assessed value standard and the deposit
mode prescribed in Rule 67 continues to
apply. The intent of R.A. 8974 to supersede d. Executor or administrator of the
the system of deposit under Rule 67 with the deceased owner;
scheme of “immediate payment” in cases e. Heir/s of the deceased owner of the
involving national government infrastructure property.
projects is indeed very clear (Republic vs
Gingoyon, G.R. No. 166429, December 19, 2. Necessary Parties
2005) All persons having claims or claiming
an interest subordinate to the holder of
the mortgage, e.g. second mortgagee,
subsequent attaching creditor, and
RULE 68 purchaser of the mortgaged property.
FORECLOSURE OF REAL
NATURE and PURPOSE:
ESTATE MORTGAGE The remedy used for the satisfaction of any
monetary obligation, which a person owes to
another, by proceeding against a property used
Foreclosure may either be judicial or to secure said obligation.
extrajudicial: Its purpose is to cut off the rights of the owner of
the property mortgaged used to secure the
a) Judicial foreclosure is done obligation and all rights acquired subsequent to
pursuant to Rule 68 of the Rules of said right.
Court; and
b) Extra-judicial foreclosure is effected CONTENTS OF COMPLAINT (Sec. 1, Rule 68)
pursuant to Act No. 3135 as 1. Date and due execution of the
amended by Act No. 4118 mortgage;
2. Its assignments, if any;
Extra-judicial foreclosure is the mode to be 3. Names and residences of the mortgagor
used if there is a special power inserted in or and mortgagee;
attached to the real estate mortgage 4. Description of mortgaged property;
contract allowing an extra-judicial 5. Statement of the date of the note or
foreclosure sale (Sec. 1, Act No. 3135 as other documentary evidence of the
amended) Where there is no such special obligation secured by the mortgage;
power, the foreclosure shall be done 6. Amount claimed to be unpaid thereon;
judicially following the procedure set under 7. Names and residences of all persons
Rule 68. When there is no such authority having or claiming an interest in the
under a special power of attorney, the property subordinate in right to that of
foreclosure must be made judicially. the holder of the mortgage, all of whom
shall be made defendants in the action.
Judicial Foreclosure Extrajudicial
Foreclosure Effect If the Junior Encumbrancer Is Not
Requires court No court intervention Impleaded
intervention. necessary. His equity or right of redemption is NOT
There is only an Right of redemption affected or barred by the judgment of the
equity of redemption. exists. court because he is a mere necessary party
not an indispensable party (Sunlife Insurance vs.
PARTIES TO A JUDICIAL FORECLOSURE Diez, G.R. No. 29027, October 25, 1928)
1. Mortgagee;
2. Mortgagor;  The remedy of the senior encumbrancer is to
3. Successors in interest; file an INDEPENDENT proceeding to
foreclose the right to redeem by requiring the
4. Junior encumbrancer/s
junior encumbrancer to pay the amount
stated in the order of execution or to redeem
Parties Defendant: the property in a specified time.
1. Indispensable Parties Judgment on the Foreclosure For
a. Mortgage debtor Payment or Sale (Sec. 2, Rule 68)
b. Owner of property, if not debtor; 1. Ascertain the amount due to the plaintiff
c. Executor or administrator of deceased upon the mortgage debt or obligation,
mortgagor;
 including interest and other charges as
approved by the court and the costs;
2. Render judgment for the sum so found
due and order that the same be paid to
the court or to the judgment obligee:
a. Within a period of not less than 90 days
and not more than 120 days and not
more than 120 days from entry of
judgment;
b. In default of such payment, such
property shall be sold at public auction
to satisfy the judgment
Effect of Failure by the Defendant to Pay
the Amount of Judgment
1. Court shall order the property to be sold.
2. Sale shall not affect the rights of
persons holding prior encumbrances
upon the property or a part thereof.
3. When confirmed by an order of the court
or upon motion, the sale shall operate
to:
a. Divest the rights in the property of
all parties to the action; and
b. Vest their rights in the purchaser,
subject to such right of redemption.
(Sec. 3, Rule 68)
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, from the court which ordered the
foreclosure.
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.
However, 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:
1. Can resist the motion; and
2. Be informed that his right to redeem is
cut off (Tiglao vs. Botones, GR No. L-3619
October 29, 1951)
Note: Order of confirmation is appealable.
REMEDY if Mortgagor Refuses to Vacate
the Property: file 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.
DEFICIENCY JUDGMENT – 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.
 Judgment of Foreclosure: Action
Quasi in Rem
 Deficiency Judgment: Action in
Personam
Instances Where Court Cannot Render
Deficiency Judgment
a. Recto Law (Art. 1484 of the NCC)
b. Non-resident mortgagor unless there is
attachment
c. When mortgagor dies, the mortgagee
must file his claim with the probate court
(Sec. 7 Rule 86).
d. Mortgagor is a third person but not
solidarily liable with the debtor.
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).
Equity of Redemption Right of Redemption
Right of the defendant Right of the debtor, his
mortgagor to extinguish successor in interest or
the mortgage and retain any judicial creditor or
ownership of the judgment creditor of said
property by paying the debtor or any person
debt within 90-120 days having a lien on the
after the entry of property subsequent to
judgment or even after the mortgage or deed of
the foreclosure sale but trust under which the
prior to confirmation. property is sold to
redeem the property
within 1 year from the
registration of the
Sheriff’s certificate of
foreclosure sale.
Governed by Rule 68. Governed by Secs. 29-
31 of Rule 39.
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 foreclosure, the
redemption cannot be made after the
lapse of three months from the
foreclosure of the mortgaged property.
In judicial foreclosures there is only an
equity of redemption which can be exercised
prior to the confirmation of the foreclosure
sale. This means that after foreclosure sale
but before its confirmation, the mortgagor
may exercise his right to pay the proceeds of
the sale and prevent the confirmation of the
sale. This is the well recognized general rule.
This rule however, has an exception. There
is a right of redemption if the foreclosure is in
favor of banks as mortgagees. The right of
redemption is explicitly provided in Sec. 47,
par. 1, of the General Banking Law of 2000.
Where, after extrajudicial foreclosure of a
real estate mortgage, the mortgagee
purchased the same at the foreclosure sale,
he shall be entitled to a writ of possession
despite the fact that the premises are in the
possession of a lessee whose lease had not
yet terminated, unless the lease had been
previously registered in the Registry of
Property or the mortgagee had prior actual
knowledge of the existence of the lease.
Under Sec. 7 of Act 3135, as amended, the
petition for such writ of possession shall be
made under oath and filed as an ex parte
motion in the registration or cadastral
proceedings of the property (Ibasco vs.
Caguioa, G.R. No. 62619, August 19, 1986).
RULE 69
PARTITION
PARTITION 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 MAY BE:
1. Judicial or
2. Extrajudicial.
 portion of the
NON-INCLUSION OF A CO-OWNER estate assigned
to each party.
1. Before Judgment – not a ground for
motion to dismiss; remedy is to file a If the whole The judgment To vest in the
property is shall state the party making
motion to include the party.
assigned to fact of such the payment
2. After Judgment – judgment is void one of the payment and the whole of the
because co-owners are indispensable parties upon the assignment real estate free
parties. his paying to of the real from any
the others the estate to the interest on the
sum or sums party making part of the other
WHEN PARTITION CAN BE MADE ordered by the the payment. parties to the
General Rule: Anytime and the right to court. action.
demand partition is imprescriptible. If the property The judgment To vest the real
Exception: If a co-owner asserts adverse is sold and the shall state the estate in the
title to the property in which case the period sale is name of the purchaser or
confirmed by purchaser or purchasers
of prescription runs from such time of the court. purchasers and making the
assertion of the adverse title. a definite payment/s, free
description of from the claims
Nature of Partition: The partition of the parcels of of any of the
real estate sold parties to the
property may be made to each action.
voluntarily (by agreement) or purchaser.
compulsorily under the Rules.
Note: A case for partition and an action for
STAGES OF PARTITION: quieting of title have identical causes of action
1. Existence of co-ownership. and can therefore be the subject of res judicata
2. Order of partition proper (includes (Heirs of Juana Gaudine vs. CA 427 SCRA 545).
accounting)
ASSIGNMENT OR SALE OF REAL
Mode of Appeal: Record on Appeal ESTATE BY COMMISSIONERS
General Rule: When the real estate cannot
CONTENTS OF COMPLAINT: be divided without prejudice to the parties,
1. The nature and extent of his title; the court may assign the same to one of the
2. Adequate description of real estate of parties upon payment to the other party an
which partition is demanded; amount as the commissioners may deem
3. Join as party defendants all other equitable.
persons interested in the property. Exception: When one of the parties asks that
the property be sold.
ORDER OF PARTITION  Parties are allowed 10 days to file objections
 Issued after trial when the court finds the upon being notified of the assignment.
plaintiff has the right thereto.  The appointment of Commissioner is
 If the parties are able to agree, make the mandatory unless there is an extrajudicial
partition among themselves by proper partition between the parties.
instruments of conveyance: (1) confirmed by
the court and (2) recorded in the registry of
deeds.
 May be appealed by aggrieved party
 If parties are unable to agree the court shall RULE 70
appoint not more than 3 commissioners to
make the partition.
FORCIBLE ENTRY AND
UNLAWFUL DETAINER
Judgment Contents of Effect of
Judgment Judgment Forcible entry and unlawful detainer actions
If actual The judgment To vest in each are summary in nature designed to provide
partition of shall state party to the act, for an expeditious means of protecting
property is definitely, by in severalty the
made. metes and portion of the actual possession or the right to possession
bounds and estate assigned of the property involved. These actions both
adequate to him. fall under the coverage of the Rules on
description, the Summary Procedure irrespective of the
particular
amount of damages or unpaid rentals
sought to be recovered (Sec. 3, Rule 70,
Rules of Court). Accion Accion Accion
Interdictal Publiciana Reinvindi-
Forcible entry and unlawful detainer actions catoria
are actions affecting possession of real Summary A plenary An action for
property hence, are real actions. The venue action for action for the the recovery
of these actions therefore, is the place recovery of recovery of of ownership
physical the real right which
where the property subject of the action is
possession of possession necessarily
situated (Sec. 1, Rule 4, Rules of Court). where dis- when the includes the
possession dispossession recovery of
Forcible Unlawful has not lasted has lasted for possession.
Entry Detainer for more than more than one
For being a Illegal from Legal at one year. year.
Possessor the beginning. beginning. Ejectment
proceeding
(Defendant)
under Rule
Prior Required Not required 70; either FE
Possession or UD
(Plaintiff) All cases of RTC has RTC has
Demand Not Necessary forcible entry jurisdiction if jurisdiction if
Necessary and unlawful the value of value of the
detainer the property property
Prescriptio One year One year irrespective or exceeds exceeds
n from actual from the the amount of P20,000 P20,000
entry. LAST damages or outside Metro outside Metro
demand. unpaid rentals Mla. P50,000 Mla. P50,00
Possession By force, By contract or sought to be within Metro within Metro
recovered Mla. MTC has Mla. MTC has
intimidation, tolerance.
should be jurisdiction if jurisdiction if
threats, brought to the value of the the value of
stealth and MTC. property does property does
strategy. not exceed not exceed
the above above
amt. amounts.
Who May Institute Proceedings
 While it is true that the only issue in forcible entry
Forcible Entry Unlawful Detainer or unlawful detainer action is the physical
possession or possession de facto – not
A person deprived 1. Lessor, vendor. possession de jure, yet the court may go beyond
of possession of Vendee or other that if only to prove the nature of possession. The
any land or building person against court may receive evidence upon the question of
by force, whom possession of title solely for the purpose of determining the
character and extent of possession and damages
intimidation, threat, any land or building
for the detention (Consing vs. Jamandre, 64
strategy or stealth. is unlawfully SCRA 1)
withheld;
2. Legal representa- In forcible entry, a demand to vacate is not
tives or assigns of required before the filing of the action
any such lessor, because the occupancy is illegal from the
vendor, vendee, or very beginning.
other person against
whom possession of
any land or building In unlawful detainer, demand to vacate is
is unlawfully necessary as a rule. Demand however shall
withheld. not be required when:
a) There is a stipulation dispensing
with a demand (Art. 1169, Civil
Code of the Philippines); or
b) When the ground for the suit is
based on the expiration of the lease
because when the lease expires the
Actions for Recovery of Possession 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 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:
1. Personally;
2. By posting it at the premises if no
person is found thereon (Viray vs. CA, G.R.
No. 12076,. February 24, 1998);
3. Substituted service;
4. Registered mail (Co Keng Kian vs. CA, G.R.
No. 75676, August 29, 1990).
General Rule:
Judgment of the MTC against the defendant
in ejectment proceedings is IMMEDIATELY
EXECUTORY.
Exception: STAY of judgment when the
following concur:
1. The defendant perfected his appeal;
2. He files sufficient supersedeas bond;
and
3. He deposits with the appellate court the
amount of rent due from time to time
under the contract or in the absence of a
contract, the reasonable value of the
use and occupation of the premises on
or before the 10th day of each
succeeding month or period.
The periodic deposits are designed to
cover all rentals from the judgment of the
MTC until the final judgment of the appellate
court. Thus, even if an appeal has been
perfected but the required periodic deposits
are not made, execution may be obtained
upon proper motion with notice despite the
posting of a supersedeas bond because
said bond covers only back rentals declared
in the judgment of the MTC. The bond does
not answer for rentals that accrue during the
appeal process.
The supersedeas bond shall be equivalent
to the unpaid rentals, damages and costs
which accrued down to the time of judgment.
In other words, the superseadeas bond
covers the monetary judgment of the lower
court. If the judgment does not make any
pronouncement as to the pecuniary liability
of the defendant, the bond should not be
required. Attorney’s fees are not covered by
a superseadeas bond.
 Preliminary prohibitory and mandatory
injunction may be granted in forcible entry
and unlawful detainer cases (Secs. 15 and 20,
Rule 70).
 Summary procedure will apply only in the
proceedings in the inferior court. Once it is
appealed to the RTC, rules in Summary
Procedure no longer apply.
Preliminary prohibitory injunction - to prevent
the defendant from committing further acts of
dispossession against the plaintiff.
Preliminary mandatory injunction - to restore
possession to plaintiff.
 Reference to Barangay Conciliation is not
required if plaintiff avails the provisional
remedies.
 The existence of a formal contract is NOT
necessary in unlawful detainer. Even if there is no
formal contract between the parties there can still
be an unlawful detainer because implied contracts
are covered by ejectment proceedings.
Possession by tolerance creates an implied
promise to vacate the premises upon the demand
of the owner. (Peran vs. CFI of Sorsogon, G.R.
No. L-57259, October 13, 1983)
Questions to Be Resolved in an Action
for Forcible Entry:
First: Who had actual possession over the
piece of real property?
Second: Was the possessor ousted
therefrom within one year from the filing of
the complaint by force, intimidation, threat,
strategy or stealth?
Third: Does the plaintiff ask for restoration of
possession? (Dizon vs. Concina, G.R. No. L-23756.
December 27, 1969)
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:
1. If the property was acquired before the
action;
2. 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.
JUDGMENT
The court can award damages in ejectment
cases PROVIDED the damages refer only
to:
1. The fair and reasonable value of the use
and enjoyment of the property or the
rent arising from the loss of possession;
2. Arrears;
3. Liquidated damages since they are
already part of the contract.
Immediate Execution on Appeal to Court
of Appeals or S.C..
The judgment of the RTC against the
defendant shall be immediately executory,
without prejudice to a further appeal that
may be taken therefrom. (Sec. 1, Rule 70)
RULE 71
CONTEMPT
CONTEMPT OF COURT is a defiance of the
authority, justice or dignity of the court; such
conduct as tends to bring the authority and
administration of the law into disrespect or to
interfere with or prejudice parties litigant or
their witnesses during litigation (Halili vs. CIR,
136 SCRA 112).
Purpose And Nature Of Power
The power to punish for contempt is inherent in
all courts; its existence is essential to the
preservation of order in judicial proceedings and
to the enforcement of judgments, orders, and
mandates of the courts, and consequently, to the
due administration of justice.
The exercise of the power to punish for 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.
Direct contempt in general is committed in
the presence of or so near the court or judge
as to obstruct or interrupt the proceedings,
before the same.
GROUNDS FOR DIRECT CONTEMPT
a. Misbehavior in the presence of or so
near a court as to obstruct or interrupt
the proceedings.
b. Disrespect towards the court.
c. Offensive personalities towards others.
d. Refusal to be sworn or to answer as
witness or to subscribe an affidavit or
deposition when lawfully required to do
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).
Indirect contempt is one not committed in
the presence of the court. It is an act done at
a distance which tends to belittle, degrade,
obstruct or embarrass the court and justice.
GROUNDS FOR INDIRECT CONTEMPT
1. Misbehavior of an officer of a court in
the performance of his official duties or
in his official transactions.
2. 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.
3. Any abuse of or any unlawful
interference with the proceedings of a
court not constituting direct contempt.
4. Any improper conduct tending to
degrade the administration of justice.
5. Assuming to be an attorney or an officer
of the court without authority.
6. Failure to obey a subpoena duly served. judicially, as in unlawfully assailing or
7. Rescue, or attempted rescue, of a discrediting the authority and dignity of
person or property in the custody of an the court or judge, or in doing a duly
officer.(Sec. 3, Rule 71) forbidden act.
 In Yasay vs. Recto; it ruled that all contempt
TWO WAYS A PERSON CAN BE proceedings partake of criminal in nature.
CHARGED WITH INDIRECT CONTEMPT: As such, rule on double jeopardy applies
1. Through a verified petition; and  In special judgments under Rule 39 Section
2. By order or formal charge initiated by 11, the person required by the judgment to
the court motu proprio (Landbank vs. Listano obey the same may be punished for
Sr., 408 SCRA 328). contempt if he disobeys. NO contempt
however lies in judgments for money (Sec. 9)
and judgments for specific act (Sec. 10) under
CLASSES OF CONTEMPT Rule 39.
1. As to Manner of Commission:
Remedies to Challenge Contempt
Direct Indirect Judgments:
Summary in nature Punished only after Direct Contempt: the person adjudged in direct
written charge and/or contempt may avail himself of the remedy of
due hearing. certiorari or prohibition. The execution of the
If committed against: If committed against: judgment shall be suspended pending resolution
RTC – fine not RTC – fine not of the petition, provided such person files a bond
exceeding P2,000 or exceeding P30,000 or and conditioned that he will abide by and perform
imprisonment not imprisonment not the judgment should the petition be decided
exceeding (10) days or exceeding 6 months or against him (Sec. 2, Rule 71).
both. both
MTC – fine not MTC – fine not Indirect Contempt: the person adjudged for
exceeding P200 or exceeding P5,000 or indirect contempt may appeal such judgment or
imprisonment not imprisonment not final order to the proper court as in criminal
exceeding (1) day, or exceeding (1) month or cases. The execution of the judgment shall NOT
both. both. be suspended until a bond is filed by the person
adjudged in contempt.
2. As to NATURE:
a. Civil Contempt consists in failing to do Note: The distinction is only for the purpose of
something ordered to be done by a imposable penalty.
court or a judge in a civil case for the
 The judgment against a person adjudged to
benefit of the opposing party therein. be in contempt is immediately executory and
b. Criminal Contempt is a conduct that is can be stopped only by filing a bond.
directed against the authority and
dignity of a court or of a judge acting
 JURISDICTION AND VENUE OF SPECIAL CIVIL ACTIONS
SPECIAL CIVIL ACTION JURISDICTION
Interpleader 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 not exceed
P20,000 or P50,000 in Metro Manila.
RTC – if the value exceeds the
above amounts or if the subject
matter is exclusively within the
jurisdiction of the RTC (e.g. specific
performance, recovery of title)
Declaratory Relief RTC
Certiorari, Prohibition, RTC, CA, SC, Sandiganbayan in aid
Mandamus of its appellate jurisdiction
Quo Warranto RTC, CA, SC
Expropriation RTC (Incapable of pecuniary
estimation) (Barangay San Roque
vs. Heirs of Pastor, GR No. 138896,
June 20, 2000)
Foreclosure RTC (Incapable of pecuniary
estimation) (Barangay San Roque
vs. Heirs of Pastor, GR No. 138896,
June 20, 2000)
Partition RTC (Incapable of pecuniary
estimation)
Forcible Entry / MTC
Unlawful Detainer
Contempt MTC, RTC, CA, SC
VENUE
Where the plaintiff or any of the principal
plaintiff resides or where the defendant or
any of the principal defendants resides at
the option of the plaintiff
Note: The venue of special civil actions is
governed by the general rules on venue,
except as otherwise indicated in the
particular rule for said special civil action.
Where the petitioner or the respondent
resides
RTC of the place where the respondent
court, corporation, officer or person is
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)
If filed with the SC, or CA, the location of
respondent is immaterial or;
RTC of place where the respondent
resides or where any of the respondents
resides;
However, if the Solicitor General
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
Where the real property or a portion
thereof is located
If the subject matter is personal property
(sec. 13 Rule 69), in the place where the
plaintiff or the defendant resides
Where the property is located
Where the court involved is sitting
 SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS – a remedy by
which a party seeks to establish a status, a
right or a particular fact. (Rule 1, Sec. 3c)
 No formal pleadings required, unless
the statute or the rules so provides.
 The remedy is generally granted upon
an application or motion. (Hagans vs.
Wislizenus, 42 Phil. 880)
ICAL LAWSPECIAL PROCEEDINGS
4. Concurrent Jurisdiction in HC- RTC, CA,
SC
Applicability of Rules in 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. (Rule
72, Sec. 2)

SUBJECT MATTER OF SPECIAL

Ordinary Action Special Proceeding
PROCEEDINGS: (Rule 72, Sec. 1)
To protect or enforce Involves the 1. Settlement of estate of deceased
a right or prevent or establishment of a persons;
redress a wrong. right, status or fact. 2. Escheat;
Involves 2 or more May involve only 1 3. Guardianship and custody of children;
parties. party. 4. Trustees;
5. Adoption;
Governed by ordinary Governed by special 6. Rescission and revocation of adoption;
rules supplemented rules supplemented 7. Hospitalization of insane persons;
by special rules. by ordinary rules. 8. Habeas corpus;
9. Change of name;
Heard by courts of Heard by courts of
general jurisdiction. limited jurisdiction. 10. Declaration of absence and death; and
11. Cancellation or correction of entries in
Pleadings are Petition or application the Civil Registry.
required is sufficient
Other Special Proceedings
JURISDICTION OVER SPECIAL 1. Liquidation proceedings;
PROCEEDINGS: 2. Corporate rehabilitation;
General Rule: Regional Trial Court
3. Recognition and enforcement of
Exception: MTC/MeTC/MCTC can entertain
arbitration proceedings;
Special Proceedings: 4. Vacation, setting aside, correction or
1. Probate proceedings whether testate or modification of an arbitral award;
intestate, where the gross value of the 5. Any application with a court for
estate does not exceed PhP 300,000 or arbitration assistance and
PhP 400,000 in Metro Manila. supervision.
2. Delegated Jurisdiction – in Cadastral
and Land Registration Cases covering  A petition for liquidation of an
lots where there is no controversy or insolvent corporation should be
opposition, or contested lots, where the classified as a special proceeding
value of which does not exceed PhP and not an ordinary action. (Pacific
100,000. Banking Corp. vs. CA, 242 SCRA 492)
 APPEAL in this instance is taken to the
CA, not to the RTC since MTC is equal
 A petition for rehabilitation, which is a
to RTC when acting as cadastral and
land registration cases.
remedial action provided for in the
3. Special Jurisdiction – petitions for Writ Interim Rules of Procedure on
of Habeas Corpus in case of absence of Corporate Recovery [A.M. No. 00-8-10-SC]
RTC judges. is a special proceeding.
 Temporary custody of minor children; the settlement of the estate, consisting of
visitation rights the following:
1. Administration of the estate;
Now Excluded In Special Proceedings: 2. Liquidation of the estate; and
1. Constitution of Family Home – now 3. Distribution of the estate.
covered by the Family Code;
2. Voluntary Dissolution of Corporations – EXCLUSIVE because the court first taking
now covered by the Corporation Code cognizance of the settlement of the estate of
and the SEC Rules. a decedent shall exercise jurisdiction to the
exclusion of all other courts.
Applicability of Rules of Civil Actions
In the absence of special provisions, the General Rule: The question of ownership is
rules provided for in ordinaryactions shall an extraneous matter in probate
be, as far as practicable in special proceedings. Probate court cannot
proceedings (Sec. 2, Rule 72). determine issue of ownership.

Exceptions:
1. Provisionally, ownership may be
RULE 73 determined for the purpose of including
property in inventory, without prejudice
VENUE AND PROCESSES to its final determination in a separate
action;
SETTLEMENT OF ESTATE OF 2. When the parties are all heirs of the
DECEASED PERSONS: decedent and they submit the issue of
Purpose: To strive to have the estate settled ownership to the probate court, provided
in a speedy manner so that the benefits that the rights of 3rd parties are not
derived therefrom may be immediately impaired; and
enjoyed by the heirs and beneficiaries. 3. The question is one of collation or
advancement. arellano law
Modes of Settlement Of Estate:
1. Extrajudicial through: PROCEDURE IN SETTLEMENT
 Affidavit of Adjudication PROCEEDINGS:
 Extrajudicial Partition Probate of a Will, if any
2. Judicial through: (Rule 75-76)
 Probate Proceedings
 Partition (Rule 69)
 Summary Settlement of Estates of
Issuance of Letters
Small Value Testamentary / Administration
(A Special Administrator may be appointed)
Different Modes of Settlement of Estate (Rule 77-80)
of Deceased Persons, As Provided for
Under the Rules of Court:
1. Extrajudicial Settlement of Estate (Rule
74, Sec. 1); Filing of Claims
2. Partition (Rule 69); (Rule 86)
3. Summary Settlement of Estate of Small
Value (Rule 74, Sec. 3);
4. Probate of Will (Rule 75-79);
Payment of Claims
5. Petition for Letters of Administration in Sale/Mortgage/Encumbrance of Properties
cases of Intestacy (Rule 79). of the Estate
EXTENT OF JURISDICTION:
Probate courts are courts of LIMITED,
SPECIAL & EXCLUSIVE jurisdiction.
LIMITED AND SPECIAL because it may only
determine and rule upon issues relating to

Distribution of Residue, if any
(but this can be made even before
payment if bond is filed by the heirs)
Nature of Proceedings:
 The settlement of the decedent’s
estate is a proceeding in rem, and
hence binding against the whole world.
 All persons having interest in the
subject matter involved, whether they
were notified or not, are equally bound
except in the case of (a) extrajudicial
settlement of estate, or (b) summary
settlement of estates of small value.
Venue: The residence of the decedent at
the time of his death is determinative of the
proceeding.
1. Resident of the Philippines – venue
is exclusively laid in the RTC of the
province where he resides at the
time of his death.
2. Non-resident of the Philippines –
venue lies in the RTC of any
province in which he had estate.
EXCLUSIONARY RULE:
 The court first taking cognizance of
the settlement of the estate of a
decedent shall exercise jurisdiction to
the exclusion of all other courts. The rule
applies equally to both testate and
intestate proceedings.
 Probate court acquires jurisdiction from the
moment the petition for settlement is filed
with the court. It cannot be divested of such
jurisdiction by the subsequent acts of the
parties as by entering into extrajudicial
partition of estate. (Sandoval vs. Santiago,
88 Phil 784)
Exception: Estoppel by Laches
Note: Jurisdiction under Rule 73, Sec. 1 does
not relate to jurisdiction per se but to venue.
It is NOT an element of jurisdiction but of
procedure, hence, institution in the court
where the decedent is neither an inhabitant
or has his estate, may be waived (Uriarte vs.
CFI, G.R. Nos. L-2138-39, Oct. 29, 1970).
Remedy if the Venue Is Improperly Laid:
 Ordinary appeal NOT certiorari or
mandamus, unless want of jurisdiction
appears on the record of the case.
General Rule: Probate court can not issue
writs of execution because its orders usually
refer to the adjudication of claims against
the estate which the executor or
administrator may satisfy without the need of
executory processes.
Exceptions:
1. To satisfy the contributive share of the
devisees, legatees and heirs when the
latter had entered into prior possession
over the estate (Rule 88, Sec. 6);
2. To enforce payment of the expenses of
partition (Rule 90, Sec. 3);
3. To satisfy the court when a person is
cited for examination in probate
proceeding (Rule 142, Sec. 13).
 Under the rule of inclusion unius est
exclusion alterius (the inclusion of one is the
exclusion of another), these would be the
only instances when the probate court can
issue a writ of execution (Vda. De Valera, et al.
vs. Ofilada, et al., L-27526, September 12, 1974).
Questions That A Probate Court Can
Determine:
1. Who are the heirs of the decedent;
2. Recognition of a natural child;
3. Validity of disinheritance effected by the
testator;
4. Status of a woman who claims to be the
lawful wife of the decedent;
5. Validity of waiver of hereditary rights;
6. Status of each heir;
7. All other matters incidental or collateral
to the settlement and distribution of the
estate.
Presumption of Death
There is no need for an independent action
for Declaration of Presumptive Death for
purposes of Succession (Sec. 4, Rule 3)
 RULE 74 Public Instrument Not Necessary for The
Validity Of An Extrajudicial Settlement:
SUMMARY SETTLEMENT Oral agreement of partition is valid among
OF ESTATE the heirs who participated in the extrajudicial
settlement. The requirement under Rule 74, Sec.
1 that it must be in Public Instrument is not
General Rule: If a person dies, his estate is constitutive of the validity but merely evidentiary
submitted to a judicial settlement in nature. (Hernandez vs. Andal, 78 Phil 196)
proceeding.
Exception: The heirs may resort to: Note: If settlement is in private instrument, it
1. EXTRAJUDICIAL SETTLEMENT of is believed that the same is valid and
reformation of instrument may be compelled
estate; or (Art. 1359, Civil Code)
2. SUMMARY SETTLEMENT of estate --
conducted in accordance with regular Distinctions Between Extrajudicial
procedure not under the Rules of and Summary Settlement:
Summary Procedure;
Extrajudicial Summary
 Executors or administrators need not be
Settlement Settlement
appointed.
No court intervention Require summary
Requisites for Extrajudicial Settlement judicial adjudication
By Agreement Between Heirs: Value of the estate is Gross estate must not
A. Substantive Requirements: immaterial exceed PhP
1. The decedent left NO WILL and NO 10,000.00 in a
DEBTS; and summary settlement
2. The heirs are all of legal age or the of estate of small
minors are represented by their value
judicial or legal representatives, duly Allowed only in Allowed in both
authorized for the purpose. intestate succession intestate and testate
B. Procedural Requirements: No outstanding debts Available even if there
1. Division of estate must be in a of the estate at the are debts; it is the
public instrument; time of settlement court which will make
2. Filed with the proper Register of a provision for its
Deeds; payment
3. Publication of notice of the fact of Resorted at the May be instituted by
extrajudicial settlement once a week instance and by any interested party
for 3 consecutive weeks; and agreement of all heirs or even a creditor of
4. A bond equivalent to the value of the estate without the
personal property. consent of all the
heirs
Basis To Compel Settlement Of The Amount of bond is Bond to be
Estate: equal to the value of determined by the
1. Undue deprivation of lawful participation personal property court
in the estate;
2. Existence of debts against the estate or  There is a disputable presumption that
undue deprivation of lawful participation the decedent left no debts if no creditor
files a petition for letters of
payable in money. arellano law
administration within 2 years after the
death of decedent.
Note: The bond is required only when  Real estate is subject to lien in favor of
personally is involved. If it is a real estate, it creditors, heirs or other persons for the
shall be subject to a lien in favor of creditors, full period of two years from such
heirs or other persons for the full period of 2 distribution and such lien cannot be
years from such distribution and such lien substituted by a bond (Rebong vs. Ibañez,
cannot be substituted by a bond (Rebong vs. 79 PHIL 324).
Ibanez, L-1578, September 30, 1947).

Ways Of Effecting Extrajudicial Partition:

1. Public Instrument – many heirs
2. Affidavit of Adjudication – only 1 heir
SUMMARY SETTLEMENT OF ESTATE OF
SMALL VALUE:
 Allowed in testate and intestate
succession when the gross value of the
estate does not exceed PhP 10,000.00.
(B.P. 129)
 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.
Important Requirements:
1. Application must contain allegation
of gross value of estate;
2. Date of hearing:
a. Shall be set by court not less
than 1 MONTH nor more than 3
MONTHS from date of last
publication of notice;
b. Order of hearing published,
ONCE A WEEK FOR 3
CONSECUTIVE WEEKS in a
newspaper of general
circulation,
3. Notice shall be served upon such
interested persons as the court may
direct;
4. Bond – amount fixed by the
court(not value of personal property)
conditioned upon just claims under
Sec. 4.
Requisites for a Valid Extrajudicial
Settlement:
1. The decedent died intestate;
2. There are no outstanding debts of the
estate at the time of the settlement;
3. The heirs are all of age, or the minors
are represented by their judicial
guardians or legal representatives;
4. The settlement is made in a public
instrument, stipulation or affidavit duly
filed with the Register of Deeds; and
5. The fact of such extrajudicial settlement
must be published in a newspaper of
general circulation in the province once
a week for three (3) consecutive weeks.
 If there is only 1 heir, he may adjudicate
to himself the entire estate by means of
an affidavit filed in the office of the
Register of Deeds.
Requisites for A Valid Affidavit of
Adjudication:
1. There is only 1 heir to the estate; and
2. Adjudication is made in a public
instrument, stipulation of affidavit duly
filed with the Register of Deeds.
Liabilities of Distributees And Estates:
 In case an heir or other person has
been unlawfully deprived of his lawful
participation in the estate, such heir or
other person may compel the settlement
of the estate in the courts for the
purpose of satisfying such lawful
participation.
 The provision of Rule 74, Sec. 4
barring distributees or heirs from
objecting to an extrajudicial partition
after the expiration of 2 years from
such extrajudicial partition is
applicable only:
1. To persons who have participated or
taken part or had notice of the extra-
judicial partition
2. When the provisions of Rule 74,
Sec.1 have been strictly complied
with.
(Sampilo vs. CA, L-10474, February 28,
1958)
Heirs or Creditors Not Parties to the
Summary Settlement:
 A summary settlement is not likewise
binding upon heirs or creditors who
were not parties therein or had no
knowledge thereof. Said heirs or
creditors may vindicate their rights
either:
1. Proceeding against the estate or the
distributees; or
2. Proceeding against the bond within
the 2-year period.
Remedies:
1. Within two (2) years – claim against the
bond or real estate;
2. Rescission in case of preterition of
compulsory heir in partition tainted with
bad faith (Art. 1104, NCC)
a. Action to annul a deed of
extrajudicial settlement on the
ground of fraud within 4 years from
the discovery of fraud;
b. Action for reconveyance based on
an implied or constructive trust
 brought within 10 years from date of
registration of the deed or the
issuance of title. (Amerol vs.
Bagumbaran, 154 SCRA 396)
Exception: The 10-year prescriptive period
should be reckoned from actual discovery of
fraud where the registration was attended
with bad faith in securing the certificate of
title. Torrens Title does not furnish a shield
for fraud. (GSIS vs. Santiago, 414 SCRA 563, Oct.
28, 2003)
 An heir deprived of his share may
file an action for reconveyance
based on an implied or constructive
trust which prescribes 10 years from
the date of registration or date of
issuance of certificate of title or from
actual discovery of fraud if the
registration was made in bad faith
(Marquez vs. CA, GR No. 125715, December
29, 1998).
 Where the estate has been
summarily settled, the unpaid
creditor may, within 2 years, file a
motion in court wherein such
summary settlement was had, for
the payment of his credit.
 After the lapse of 2 years, an
ordinary action may be instituted
against the distributes within the
statute of limitations BUT NOT
against the bond.
 The 2-year lien upon the real
property distributed by extrajudicial
or summary settlement shall be
annotated on the title issued to the
distributes and after 2 years, will be
cancelled by the register of deeds
without need of the court order (LRC
Cirular 143).
 Such lien cannot be discharged nor
the annotation be cancelled withi the
2 year period even if the distributes
offer to post a bond to answer for
contingent claims from which lien is
established (Rebong vs. Ibanez, L-1578,
September 30, 1947)
PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON:
 If on the date of expiration of 2 years
after the distribution of the estate, the
person authorized to file a claim is a:
(a) minor
(b) mentally incapacitated
(c) in prison, or
(d) outside the Philippines, he may
present his claim within 1 year after
such disability is removed.
RULE 75
PRODUCTION OF WILL /
ALLOWANCE OF WILL
NECESSARY
PROBATE OF WILL – a special proceeding
for establishing the validity of a will.
Nature of Imprescriptibility
a. IMPRESCRIPTIBLE. Statute of
Limitations is NOT APPLICABLE to the
probate of wills because probate is
intended primarily for the protection of
the testator's expressed wishes.
B. MANDATORY. The Doctrine of
Estoppel DOES NOT APPLY in probate
proceedings since the presentation and
the probate of a will are required by
public policy and they involve public
interest.
However, a will may be sustained on the
basis of Art. 1080 of the Civil Code
which states that: “If the testator should
make a psrtition of his properties by an
act inter vivos , or by will, such partition
shall stand in so far as it does not
prejudice the legitime of the forced heir
(Mang-Oy vs. CA, L-27421, September 12, 1986)
c. IN REM – binding on the whole world;
(Exception: Art. 1080, NCC)
d. Imprescriptible – because of the public
policy to obey the will of the testator.
Matters Which The Probate Court Is
Empowered To Determine:
1. Whether or not the instrument offered is
the last will and testament of the
decedent – a question of identity;
2. Whether or not the will has been
executed in accordance with the
formalities prescribed by law – a
question of validity; RULE 76
3. Whether or not the testator has ALLOWANCE OR
testamentary capacity at the time of the DISALLOWANCE OF A
execution of a will – a question of
capacity. WILL
General Rule: Probate court determines only
PROBATE OR ALLOWANCE OF WILLS –
the extrinsic validity of the will.
the act of proving in court a document
Exception: THE PRINCIPLE OF
purporting to be the last will and testament
“PRACTICAL CONSIDERATIONS”. Where
of a deceased person in order that it may be
defect is apparent on its face, the probate
officially recognized, registered and its
court may determine the intrinsic validity of
provision carried out in so far as they are in
the will even before its formal validity is
accordance with law.
established, as the probate of a will may
become a useless ceremony if the will is
Who May Petition for Allowance Of Will:
intrinsically invalid.
1. Executor, devisee or legatee named in
 Principle applicable only where the
the will;
intrinsic invalidity of the will is apparent
2. Any other person interested in the
on its face.
estate;
 Judgment or Decree of Probate is
3. Testator; or
conclusive with respect to the due
4. Any Creditor.
execution of the will and not subject to
collateral attack EXCEPT that of fraud.
Party To Probate Proceedings:
Generally, any person having a direct
Note: Testacy over intestacy. Doubts
and material interest in the will or estate can
are presumed in favor of testacy.
be a party to the probate of proceedings.
 In order that a person may be allowed to
Custodian of Will – a person who has custody
intervene in a probate proceeding, he must
of the will who must deliver the will to the court
have an interest in the estate, or in the will,
having jurisdiction or to the executor named in
or as a claimant of the estate.
the will within 20 days after he knows of the
 An heir who has assigned or renounced his
death of testator.
hereditary rights has no legal interest as
would authorize him to initiate such
 Failure to attach original will to petition is not
critical where the will itself was adduced in proceedings.
evidence. It is not necessary to attach the original
will to petition for probate. (Heirs of the late Jesus Contents of Petition
Fran vs. Salas, 210 SCRA 303) 1. The jurisdictional facts – death of the
testator and his residence at the time of
Executor To Present Will And To Accept the death or the province where estate
Or Refuse Trust: was left by the decedent who was a
A person named as executor in a will non-resident;
shall present such will to the court having
jurisdiction, within 20 days after he knows of 2. The names, ages, and residences of the
the death of the testator OR within 20 days heirs, legatees, and devicees of the
after he knows that he is named executor if testator or decedent;
he obtained such knowledge after the death
of the testator, UNLESS the will has reached 3. The probable value or character of the
the court, and shall, within such period, property of the state;
signify to the court in writing his acceptance
of the trust or his refusal to accept it. 4. The name of the person for whom
letters are prayed;
5. The name of the person having custody
of the will if it has not been delivered to
the court.
Effect of the Probate of a Will:
It is conclusive as to the EXECUTION
and the VALIDITY of the will (even against
the estate). Thus, a criminal case against
the forger may not lie after the will has been
probated. arellano law
Issue in the Probate of a Will
General Rule: A probate court can only
determine the intrinsic validity of a will after
its extrinsic validity has been established.
Exception: Principle of Practical Consideration –
As to time, effort, expense plus added anxiety are
the practical considerations that induce us to a
belief that we might as well meet head-on the
issues of the validity of the provisions of the will
in question (Nuguid vs. Nuguid. L-23445, June 23,
1965).
 Where the testamentary disposition is
void, and apparent on its face (Acain vs.
IAC GR No. 72706, October 27, 1987;
Nepumuceno vs. CA, L-62952, October 9, 1985).
Extrinsic Validity – refers to the due
execution of the will.
When Is There Due Execution:
1. Testator was of sound and disposing
mind and memory;
2. No duress, fraud and undue influence;
3. Strictly complied with the formalities;
4. The will was genuine and not fraudulent.
5. That the signature of the testator is
genuine
 Publication provided for in Sec 3 of Rule
76 is a jurisdictional requirement while
the personal service of notice upon the
heirs is a matter of procedural
convenience and not a jurisdictional
requisite.
 If testator ask for the allowance of his
own will, notice should be sent onl;y to
his compulsory heir. Publication is no
longer required.
 Notification by mail must be mailed at
least 20 days before the hearing while
notification by personal service must be
made at least 10 days before the day of
hearing.
Note: The purpose of the notice is to bring
all interested person within the court's
jurisdiction so that the judgment
therein becomes binding to the whole
world.
PROOF AT HEARING:
1. When the will is not contested:
a. Notarial Will – the court may grant
allowance thereof on the testimony
of 1 of the subscribing witnesses
only;
b. Holographic Will – at least 1 witness
who knows of the handwriting and
signature of the testator explicitly
declare that the will and the
signature are in the handwriting of
the testator.
2. When the will is contested:
a. Notarial Will – it is the duty of the
petitioner to produce all the
available attesting witnesses and
the notary public, but he is not
restricted by the testimony of said
witnesses, even if adverse as the
court may still admit the will to
probate on the basis of other
satisfactory evidence;
b. Holographic will – it shall be allowed
if at least 3 witnesses who know the
handwriting of the testator explicitly
declare that the will and the
signature are in the handwriting of
the testator. Expert testimony may
be resorted to in the absence of any
competent witness if the court
deems it necessary.
Facts To Prove To Allow A Lost Or
Destroyed Notarial Will:
1. Existence of the will at the time of the
death of the testator;
2. Due execution and validity of the will;
3. Fraudulent or accidental destruction of
the will in the lifetime of the testator and
without his knowledge; and
4. Provisions of said will, to be testified by
at least 2 credible witnesses.
 If there is no contest. Otherwise,
Section 11.
 Exception to Rule 130, Sec. 5.
 Applied only to a notarial will.
Grounds for Disallowing A Will:
1. If not executed and attested as required
by law;
2. If the testator was insane, or otherwise
mentally incapable to make a will at the
time of execution;
3. If it was executed under duress, or the
influence of fear, or threats;
4. If it was procured by undue and
improper pressure and influence;
5. If signature of testator was procured by
fraud or trick and he did not intend that
the instrument should be his will at the
time of affixing his signature thereto.
General Rule: Holographic will if destroyed
cannot be probated.
Exception: If there exists a photostatic or
Xerox copy thereof. (Gan vs. Yap, 104 Phil. 509)
 Substantial Compliance Rule: If
the will has been executed in
substantial compliance with the
formalities of the law, and the
possibility of bad faith and fraud is
obviated, said will should be
admitted to probate (Art. 809,
NCC).Separate wills which conatin
essentially the same provisions and
pertain to properties which in all
probability are conjugal in nature,
practical considerations dictate their
joint probate (Vda. De Perez vs. Tolete,
G.R. No. 76714, June 2, 1994).
RULE 77
ALLOWANCE OF WILL
PROVED OUTSIDE OF
THE PHILIPPINES &
ADMINISTRATION OF
ESTATE THEREUNDER
REPROBATE
 A will allowed to probate in a foreign
country must be reprobated in the
Philippines.
Matters To Be Established By The
Proponent In The Proceedings for
Reprobate In The Philippines:
1. That the testator was domiciled in a
foreign country;
2. That the will has been admitted probate
in such country;
3. That the foreign court was, under the
laws of said country, a probate court
with jurisdiction over the proceedings;
4. The law on probate procedure in said
foreign country and proof of compliance
therewith;
5. The legal requirements in said foreign
country for the valid execution of the
will.
 Property of foreigner – follow Art. 16, Civil
Code
 The will probated abroad should be treated as if it
were an original will or a will that is presented for
the first time. Thus, publication and notice by mail
or personally to the known heirs, legatees and
devisees of the testator residing in the Philippines
and to the executor, if he is not the petitioner, are
required. (Salud Teodoro vda. de Perez vs.
Tolete, 232 SCRA 722)
 Administration extends only to the
assets of the decedent found within the
state or country where it is granted, so
that an administrator appointed in one
state or country has no power over
property in another state or country.
TYPES OF ESTATE PROCEEDINGS:
1. Ancillary Administration
– administration proceeding where he
left his estate;
2. Domiciliary Administration
– the proceeding instituted in the last
residence of the decedent.
 It would be advisable for RP courts to retain
in custodia legis a sufficient amount to
protect Philippine claimants with contingent
claims (pending cases for payments) since
administrator also represent interest of RP
creditors and heirs. (Tan vs. Del Rosario, GR
No. 109289, October 3, 1994)
Ancillary Administration
Requisites:
1. There must be a will (inferred from
the wordings of Rule 77);
2. Filing of:
3. Notice of time and place of hearing;
4. Hearing; and
5. Certificate of allowance.
Estate, How Administered (Sec. 4)
1. Letters testamentary or administration does not appoint any executor, or if
with a will annexed shall extend to all appointed, said person is either
estates of the Philippines; incapacitated or unwilling to serve as
2. Such estate, after the payment of just suc.
debts and expenses of administration,
shall be disposed of according to the Letter Testamentary – the authority issued
will, so far as such will may operate to an executor named in the will to
administer by the decedent and carry out the
upon it, and the residue, if any, shall be provisions thereof.
disposed of as provided by law in cases
of estates in Philippines belonging to Letter of Administration – the authority
persons who are inhabitants of another issued to an administrator of the estate
state or country. when:
1. No executor is named;
2. Executor is incompetent;
3. Executor refused the trust;
RULE 78 4. Executor failed to give a bond;
5. Executor died; or
LETTER TESTAMENTARY 6. Executor resigned.
AND OF 7. There’s no will or will not allowed to
probate
ADMINISTRATION WHEN
AND TO WHOM ISSUED Who may serve as an executor or
administrator?
Any COMPETENT person may serve as
Person Who Can Administer the Estate: executor or administrator.
1. Executor;
2. Administrator (regular or special); (Rule EXECUTOR ADMINISTRATOR
80) Appointed by the
3. Administrator with a will annexed. (Rule court in case the
79, Sec. 1)
testator did not
Persons Incompetent To Serve As appoint an executor
Executors And Administrators: Nominated by the or the executor
1. Minor; testator and refused appointment
2. A non-resident of the Philippines; appointed by court (administrator with a
3. Those who are in the opinion of the will annexed)or if the
court, are unfit to execute the duties of will disallowed or if a
the trust by reason of: person did not make
a. Drunkenness; a will (intestate
b. Improvidence; succession)
c. Want of understanding or integrity; Must present will to
d. Conviction of an offense involving the court within 20
moral turpitude. days after he knows
of the death of
Executor – the person named in the will to testator or after he
administer the decedent's estate and carry knew that he was
out the provisions thereof. appointed as No such duty.
Administrator – the person appointed by
executor (if he
the court (1) to administer the estate where obtained such
the decedent died intestate; or (2) where the knowledge after
will was void and not allowed to probate; or death of testator),
(3) where no executor was named in the will; unless the will has
or (4) the executor named therein is reached the court in
incompetent or refuses to serve as such. any matter.
Testator may provide
Administrator with a will annexed – that he may serve
the one appointed by the court in cases without a bond (BUT He must always give
when, although there is a will, the will court may direct him a bond.
to give a bond
conditioned only to
pay debts)
Compensation may
be provided for by Compensation is
the testator in the governed by Sec. 7,
will, otherwise Sec. Rule 85.
7, Rule 85 will be
followed.
Order of Preference in the Appointment
of Administrator:
1. Surviving husband or wife, as the case
may be, or next of kin, or both; or
2. To such person as the surviving
husband or wife or next of kin requests
to have been appointed; or
3. Principal creditors competent and willing
to serve; or
4. Such other person as the court may
select.
Next of Kin – persons who are entitled to
the decedent's property under the statute of
distribution.
 Nearest of kin is preferred in the choice
of administrator.
 Interest in the estate of the deceased Is the
principal consideration in the appointment of
administrator. (Gonzales vs. Aguinaldo, 190
SCRA 112)
 Order of preference in appointing regular
administrator may not be followed by the
court, but is discretionary upon them.
(Matias vs. Gonzales)
Note: The Order of Appointment of Regular
Administrator is final and appealable.
Basis for the Preferential Right: The
underlying assumption is that those who will
reap the benefits of a wise, speedy and
economical administration of the estate or
on the other hand, suffer the consequences
of waste, improvidence or mismanagement,
have the higher interest and most influential
motive to administer the estate correctly.
(Gonzales vs. Aguinaldo, G.R. No. 74769 September
28, 1990)
Note: co-administrators may be appointed
for the benefit of the estate and those
interested therein. (Matute vs. CA, G.R. No.
26751, January 31, 1969)
RULE 79
OPPOSING ISSUANCE OF
LETTERS TESTAMENTARY
Opposition To Issuance Of Letters
Testamentary; Simutaneous Petition For
Administration(Sec.1)
The main issue is the determination of the
person who is rightfully entitled to
administration.
Persons to oppose the issuance of
letters: Any person interested in the will.
Ground for Opposition: Incompetence
 Opposition may be accompanied by a
Petition for the issuance of Letters of
Administration with the will annexed.
Contents of a Petition for Letters of
Administration:
1. Jurisdictional facts;
a. Death of the testator;
b. His residence at the time of his
death; and
c. If domiciled in a foreign country,
where his estate located.
2. Names, ages and residences of the
heirs and creditors of the decedent;
3. Probable value and character of the
property of the estate; and
4. Name of the person for whom letters of
administration are prayed.
No defect in the petition shall render void the
issuance of the letters of administration.
Interested Party – one who will be benefited
by the estate such as an heir, or one who
has a claim against the estate. Their interest
must be material and direct, not merely
indirect or contingent.
 Where an heir has validly assigned all his
rights to the estatee before the institution of
settlement proceedings thereover, he no
longer has the requisite interest to participate
therein.
 Where the assignment is made during the
pendency of the settlement proceedings, it
requires the approval of the court. However,
even if that assignment has been approved
by the court, such approval is not deemed
final until the proceeding over the estate is
 closed, as such approval can still be SPECIAL ADMINISTRATOR – the person
vacated, hence the assignor remains as an appointed by the probate court to care for
interested party in the proceeding. and preserve his estate until an executor or
general administrator is appointed. (Tule vs.
Court To Set Time For Hearing. Notice CA, 74 SCRA 1189)
Thereof (Sec. 3)
When may a probate court appoint a
Publication for three (3) weeks and the special administrator?
notice to heirs, creditors and other persons 1. Delay in granting of letters by any
believed to have an interest in the estate is cause including appeal in the
required before hearing. probate of the will;
2. Executor is a claimant of the estate
Note: Section 3 of this Rule is she represents. t(Section 8, Rule
JURISDICTIONAL. 86)
Where no notice as required by this section
has been given to persons believed to have Note: In the second instance, the
an interest in the estate of the deceased administrator shall have the same powers as
person, the proceeding for the settlement of that of a general administrator.
the estate is void and should be annulted.
(Eusebio vs. Valmores G.R. No. L-7019, May 31, 1955)
Order of Appointment (Discretionary):
Opposition To Petition For The preference accorded by Sec. 6 of Rule
Administration(Sec.4) 78 of the appointment of a regular
administrator, NOT to that of special
Grounds for opposition: administrator, and that the order appointing
1. Incompetence: the latter lies within the discretion of the
2. Preferential right of the heir under probate court, and is not appealable. (Pijuan
vs. De Gurrea, G.R. No. L-21917, November 29,1966)
Sec.6, Rule 78.
ADMINISTRATOR SPECIAL
Hearing And Order For Letters To ADMINISTRATOR
Issue(Sec.5) Appointment may be the Appointment is an
subject of appeal. interlocutory order and
may not be the subject of
Leters of Administration shall issue if it is an appeal.
proven that: One of the obligations is Cannot pay debts of the
1. Notice as required in Sec. 3 was given; to pay the debts of the estate.
estate.
and:
Appointed when Appointed when there is
2. The decendent left no will; or there is no decendent died intestate delay in granting letters
competent and willing executor. or did not appoint an testamentary or
executor in the will or will administration or when the
was disallowed. executor is claimant of the
When Letters Of Administration Granted estate.
To Any Applicant (Sec.6)
Powers And Duties Of Special
Letters can be granted to any person or any Administrator (Sec.2)
other applicant even if other competent 1. Possession and charge of the goods,
persons are present if the latter fail to claim chattels, rights, credits, and estate of the
their letters when notified by the court. deceased;
2. Preserve the same;
3. Commence and maintain, suit for the
estate;
RULE 80 4. Sell ONLY:
a. Perishable property; and
SPECIAL b. Other property ordered sold by the
ADMINISTRATOR court;
5. Pay debts ONLY as may be ordered by
the court.
The special administrator has also the duty
to submit an inventory and to render an
accounting of his administration as required
by the terms of his bond. (Sec 4, Rule 81)
When Powers Of Special Administrator
Cease; Transfer Of Effects. Pending
Suits(Sec. 3)
When does the power of a special
administrator cease?
After the questions causing the delay are
resolved and letters are granted to regular
executor or administrator.
Is an appointment of a special
administrator appealable?
NO, as expressly provided for in Sec. 1,
Rule 109. HOWEVER, appointment of a
regular administrator is because it is final
order.
Note: It is possible for the executor or
administrator whose appointment is
challenged by appeal to be appointed also
as the special administrator pending such
appeal.
There is no harm in appointing the same
person as special administrator because
there is a vast difference between the
powers and duties of the two positions.
While special administrator may commence
and maintain suits under Sec. 2, he cannot
be sued by a creditor for the payment of the
debts of the deceased (De Gala vs. Gonzales, et
al.,). Such suit must await the appointment of
a regular administrator.
Instances When The Court May Appoint A
Special Administrator:
1. When there is delay in granting letters
testamentary; or
2. When the executor or administrator has
a claim against the estate he
represents; (Rule 86, Sec. 8)
3. When appointment of executor or
administrator is contested (i.e., subject
of an appeal)
 In this instance the special administrator
shall have the same power of the
general administrator.
 The order of preference in the
appointment of regular administrator
does not apply to the appointment of
special administrator.
Nature of Duty: A special administrator is
deemed an officer of the court subject to the
supervision and control of the probate court.
Appointment of Special Administrator:
NOT APPEALABLE, merely interlocutory.
Remedy: Certiorari under Rule 65.
Powers And Duties of Special
Administrator:
1. To take possession and charge of the
goods, chattels, rights, credits and
estate of the deceased;
2. To commence and maintain suits as
administrator;
3. To sell perishable properties and others
which the court orders; and
4. To pay debts of the deceased as
ordered by the court.
Time When the Power of A Special
Administrator Ceases: After the letters are
granted to a regular executor or
administrator.
RULE 81
BONDS OF EXECUTORS
AND ADMINISTRATORS
WHEN FILED: Before an executor or
administrator execute the trust.
Amount: To be fixed by the court.
Conditions:
1. To make a complete and true inventory
within 3 months;
2. To administer all goods, chattels, rights
and credits which came to his
knowledge and possession or to one
holding the same for him;
3. To render an accounting within 1 year;
and
4. To perform all orders of the court.
 The bond posted by administrators and
executors is intended as an indemnity to
the creditors, the heirs and the estate.
A Special Administrator Is Required To
Give A Bond With The Following
Conditions:
1. To make an inventory of all goods,
chattels, right, and credits;
2. To make an account of the same; and
3. To deliver the same to persons
appointed as executor or administrator.
ADMINISTRATOR’S BOND / STATUTORY
BOND – Terms and effectivity of bond does
not depend on payment of premiums and
does not expire until the administration is
closed. As long as the probate court retains
jurisdiction of the estate, the bond
contemplates a continuing liability. (Luzon
Surety vs. Quebrar, 127 SCRA 295)
 Bond is effective as long as the court
has jurisdiction over the proceedings.
RULE 82
REVOCATION OF
ADMINISTRATION
DEATH, RESIGNATION
AND REMOVAL OF
EXECUTORS AND
ADMINISTRATORS
The letters of administration shall be
revoked if a will is proved and allowed by the
court
When letters revoked and power cease
When the decendent’s will is allowed and
proved by the court after the issuance of
letters of administration.
Duty of Administration upon revocation
of the letters
1. Surrender the letters to the court;
and
2. Render his account within such time
court may direct.
 Whether the intestate proceeding
already commenced should
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. (Reynoso vs.
Santiago, L-3039, December 29, 1949)
Note: the discovery of a will does NOT ipso
facto nullify the letters of administration
already issued until the will has been proved
and allowed pursuant to rule 82, Sec. 1. (de
Parreno vs. Aranzanso, G.R. No. L-27657, Aug. 30,
1992)
Grounds for Removal or For Compelling
Resignation Of An Executor Or
Administrator:
1. Neglects to render his account;
2. Neglects to settle the estate according
to law;
3. Neglects to perform an order or
judgment of the court;
4. Neglects a duty expressly provided by
the Rules of Court;
5. Absconds or becomes insane;
6. Becomes incapable or unsuitable to
discharge the trust.
 The discovery of a will does not ipso
facto nullify the letters of administration
already issued, until the will has been
proved and allowed pursuant to Rule 82,
Sec. 1.
 Acts of an administrator or executor
before the revocation of letters of
administration testamentary are valid
unless proven otherwise.
 The grounds enumerated are not
exclusive.
 The order of removal is appealable.
Note: Grounds are NOT exclusive.
 The position of the administrator is one of
confidence and when the court finds that the
administrator is not entitled to such
confidence, it is justified in withdrawing the
appointment and giving no valid efficacy
thereto. (Cobarrubias vs. Dizon, L-225,
February 26, 1946)
Degree of Diligence Required: An
administrator is required to exercise
reasonable diligence and act in entire good
faith in the performance of that trust.
Acts Before Revocation, Resignation Or
Removal To Be Valid (Sec.3)
Lawful acts of an administrator or executor
be before the revocation, resignation, or
removal are valid.
Powers of New Executor or
Administrator. Renewal of License to Sell
Real Estate
 The order of removal is appealable.
(Borromeo v. Borromeo, 97 Phil. 549)
Powers of the new executor or
administrator
1. Collect and settle the estate not
administered;
2. Prosecute or defend actions
commenced by or against the former
executor or administrator; and
3. Have execution on judgments recovered
in the name of former executor or
administrator.
Authority to sell previously given to the
former executor or administrator may be
renewed without notice or hearing.
RULE 83
INVENTORY AND
APPRAISAL
 The executor or administrator shall
make an inventory and appraisal of the
estate of the deceased within 3 months
after his appointment.
 The administrator is also accountable
for a true and complete inventory of all
the property belonging to the estate,
which has come to his knowledge.
 The 3-month period provided herein is
not mandatory and the court retains
jurisdiction even if the inventory is filed
after said period, but such delay, if not
satisfactorily explained, may be a
ground for the removal of the
administrator under Section 2, Rule 82.
Certain Articles Not To Be Inventoried
(Sec.2)
1. Wearing apparel surviving spouse
and minor children;
2. Marriage bed and bedding;
3. Provision and other articles as will
necessarily be consumed in the
subsistence of the family of the
deceased.
PERSONS ENTITLED TO ALLOWANCE
DURING PROCEEDINGS:
1. Legitimate Surviving Spouse;
2. Children of the Decedent.
ALLOWANCE TO WIDOW AND FAMILY:
 Art. 188 of the Civil Code permits such
support to the children of the deceased,
without requiring that they be minors or
incapacitated.
 Such allowance should even include
children of legal age as the right and
duty to support subsist even beyond the
age of majority. Substantive law
prevails. Hence, the Civil Code prevails
over the Rules of Court.
 Grandchildren are not entitled to allowance
under Rule 83. (Heirs of Ruiz vs. CA, 252
SCRA 541)
RULE 84
POWERS OF EXECUTOR /
ADMINISTRATOR OF THE
ESTATE
Powers of Executor / Administrator of
The Estate:
1. To have access to, and examine and
take copies of books and papers relating
to the partnership in case of a deceased
partner;
2. To examine and make invoices of the
property belonging to the partnership in
case of a deceased partner;
3. To make improvements on the property
under administration with the necessary
court approval except for necessary
repairs; and
4. To possess and manage the estate
when necessary:
a. For payment of debts;
b. For payment of expenses of
administration.
Some Restrictions on the Power of an
Administrator or Executor
1. Cannot acquire by purchase, even
at public or judicial auction, either in
person or mediation of another, the
property under administration;
2. Cannot borrow money without
authority of the court;
 3. Cannot speculate with funds under
administration;
4. Cannot lease the property for more
than one year;
5. Cannot continue the business of the
deceased unless authorized by the
court;
6. Cannot profit by the increase or
decrease in the value of the
property under administration.
RULE 85
ACCOUNTABILITY AND
COMPENSATION
General Rule: He is chargeable in his
account with:
1. The whole of the estate of the
deceased at the value of the
appraisement contained in the
inventory;
2. The interest, profit and income of
the estate;
3. The proceeds of the estate sold by
him at the price it was sold.
Exception: He is not accountable for the
properties of the deceased which has not
come to his possession. arellano law
Exception to the exception: When through
unfaithfulness to the trust or through his own
fault or lack of necessary court action, he
fails to recover a portion or part of the estate
which has come to his knowledge. In which
case, he will be accountable for such
properties as well.
 No executor or administrator shall profit by
the increase, or suffer the loss by the
decrease or destruction, without his fault, of
any part of the estate. (Rule 85, Sec. 2)
 The administrator or executor is entitled to
charge in his accounts all expenses of
administration incurred by him.
Expenses of Administration:
Those necessary for the management of the
property, for protecting it against destruction
or deterioration, and possibly for the
production of fruits.
Ways In Recovering Attorney's Fees:
1. Bringing an independent civil action
personally against the executor or
administrator; or
2. Filing a petition in the administration
proceedings for the probate court to
allow the same and to direct the
payment of his fee as an expense of
administration.
 Where an attorney renders services to the
administrator or executor personally aid in
the execution of his trust, the administrator
or executor is liable for the fees, as
expenses of administration where the same
is reasonable and beneficial to the estate (Uy
Tioco vs. Imperial et al., 53 PHIL 802).
 Where, however, the attorney’s services
were rendered in a litigation involving such
administrator or executor in his capacity as
trustee if the estate and for the protection of
the interests of such estate, the attorney’s
fee is chargeable to the estate (Rodriguez vs.
Yuza, 97 PHIL 1003).
WHEN EXECUTOR OR ADMINISTRATOR
SHOULD RENDER AN ACCOUNTING:
General Rule: Within 1 year from the time of
receiving letters testamentary or of
administration.
Exception: An extension of time is allowed
for presenting claims against, or paying the
debts of the estate, or for disposing of the
estate, but even in such cases, the
administration should be terminated in not
more than 2 1/2 years.
ALLOWABLE EXPENSES AND FEES FOR
EXECUTOR OR ADMINISTRATOR:
1. Necessary expenses – in the care,
management and settlement of the
estate;
2. For services rendered – 4 Pesos per
day from the time actually and
necessarily employed;
3. Commission – upon the value of the of
so much of the estate that come into his
possession and is finally disposed of by
him in the payment of debts, expenses,
legacies or distributive shares or
delivery to heirs or devisees. (Rule 85,
Sec. 7)
When Greater Sum May Be Allowed As
Fees / Compensation For Executor Or
Administrator:
1. Where the estate is large;
2. The settlement of the estate has been
attended with great difficulty; and
3. Required a high degree of capacity on
the part of the executor or administrator.
Distinctions Between Statute of Non-Claims and
When Executor Or Administrator Is An Statute of Limitations:
Attorney – Professional fees for legal Statute of Statute of
services rendered shall be charged against Non-claims Limitations
the estate. (Rule 85, Sec. 7)
Sets the period to Sets the maximum
enforce money claims period after certain
in court against the events that legal
estate of the proceedings may be
RULE 86 decedent initiated
CLAIMS AGAINST ESTATE Applicable to civil Applicable to civil and
actions criminal actions
To protect persons
CLAIM – a debt or pecuniary demand against claims made
against the decedent’s estate. after evidence have
To protect the estate
been lost, memories
of deceased persons
WHEN CLAIMS SHOULD BE FILED: have faded or
General Rule: Statute of Non-Claims (Sec. witnesses have
2) – not more than 12 months nor less than disappeared
6 months after the date of the first Period commences to
publication of the notice. Period commences to run from the accrual
 Failure to file claim within said period run from the first of the claim or from
will bar recovery by creditor. publication of the the discovery of the
 Statute of Non-Claims also runs against notice to file all claims act resulting in the
the State according to the weight of alleged injury
authority. Period fixed is not
Exception: Claims by the Gov’t for unpaid less than 6 months
taxes, filed within the period of limitation nor more than 12
Deadlines vary
prescribed in the NLRC, are not covered by months from the day
depending on the
the Statute of non – claims as these are of first publication of
type of case or claim
monitary obligations created by law. (Vera vs. notice or before an
Fernandez, L-31364, March 30, 1979) order of distribution is
entered
 The court for good cause shown and on
such terms as are equitable may grant 1
Notice to Be Given for the Filing of Claim:
month grace period on application of a
creditor who has failed to file his claim within
1. Duties of Executor/Administrator:
the period fixed under Sec 2. However, the a. Notices to creditors be
motion must be filed before an order of published;
distribution is entered. (Danan et al. vs. b. File or cause to be filed in court a
Buencamino, etc. et al., G.R.No. 57205, printed copy of the notice
December 14, 1981). accompanied with an affidavit
setting forth the dates of the first
Purpose of Administration: and last publication and the name of
1. Liquidation of the estate; and the newspaper in which the notice
2. Distribution of the residue among the has been printed.
heirs and legatees. 2. Where and when to be published: In a
newspaper of general circulation in the
LIQUIDATION – the determination of all the province for 3 consecutive weeks.
assets of the estate and payment of all 3. Where to be posted: In 4 public places
debts and expenses. in the province and in 2 public places in
the municipality where the decedent last
DEGREE OF CARE: reasonable diligence resided within the same period.
and act in entire good faith in the
performance of that trust.  A notice to creditors to file their claims is not
proper if only a special administrator has
been appointed as a special administrator is
 generally not empowered to pay the debts of
the deceased and his bond, unlike that a
regular administrator, is not conditioned upon
the payment of such debts.
Claims to be Filed with the Probate Court
Within the time Limited in the Notice:
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 and
expenses for the last sickness of the
decedent; and
3. Judgment for money against the
decedent.
 These claims must be filed with the probate
court within the time limited in the notice;
otherwise, they are barred forever.
 If the claim is for the recovery of real or
personal property from the estate or the
enforcement of any lien thereon, an action
should be instituted for that purpose against
the executor or administrator.
 Where the defendant dies while the action
for a sum of money against him is pending in
the Court of Appeals, he shall be substituted
therein by his legal representative but the
final judgment of the appellate court cannot
be enforced by a writ of execution but should
be filed in the probate as a money claim in
accordance with Section 5, Rule 86 (Paredes
vs. Moya, L-38051, December 26, 1973).
 If there is no instrument evidencing the debt
of the decedent and no writing is offered as
proof thereof, the claim cannot be proved.
(Sec. 23, Rule 130, Dead Man Statute)
Absolute claim is such a claim as, if
contested between living persons, would be
proper subject of immediate legal action and
would supply a basis of a judgment for a
sum certain.
Contingent claim is a conditional claim or
claim that is subject to the happening of a
future uncertain event.
Claims Not Barred Even If Filed Beyond
The Time Limit:
1. Claims which can be set forth as
counterclaims;
2. In cases where an E/A commences or
prosecutes an action already
commenced by the deceased in his
lifetime, the debtor by answer may set
forth his claims against the decedent;
3. Mutual claims against each other.
Statute of Non-Claims SUPERSEDES the
Statute of Limitations insofar as the debts
of deceased persons are concerned
because if a creditor fails to file his claim
within the time fixed by the court in the
notice, then the claim is barred forever.
However, BOTH statute of Non-Claims and
Statute of Limitations MUST CONCUR in
order for a creditor to collect.
Note: HOWEVER, a creditor barred by the
Statute of Non-Claims may file a claim as a
COUNTERCLAIM in any suit that the
executor or administrator may bring against
suce creditor (Sec. 5).
Obligation of the Decedent:
1. In solidary obligation – claims should be
filed against decedent as if he were the
only debtor without prejudice on the
part of the estate to recover contribution
from the other debtor.
2. In joint obligation – the claim must be
confined to the portion belonging to the
decedent.
Remedies of a Mortgagee-Creditor Upon
Death of the Mortgagor:
1. Abandon the security and file a money
claim against the estate;
2. Institute a foreclosure suit and recover
upon the security; and
3. Rely solely upon his mortgage and
foreclose the same at anytime within the
statute of limitations.
 If the creditor fails to obtain full recovery
of his claim, he may obtain a deficiency
judgment and file it as a claim against
the estate in the manner provided by
this Rule, provided that he does so
within the period for the filing of claims
against the estate, otherwise it will be
barred.
 These remedies are ALTERNATIVE.
 The judgment approving or disapproving
a claim is appealable as in ordinary
cases.
 Judgment against executor and
administrator shall not create any lien
upon the property of the estate or give
to the judgment creditor any priority of
payment. (Sec. 13)

CLAIMS EXTINGUISHED ACTIONS WHICH
BY DEATH SURVIVE
Personal to either of the Claim is not extinguished
parties and is by death but shall be
extinguished by death prosecuted as a money
claim against the estate of
the deceased
Examples: legal Example:
separation, annulment of money claim
marriage, declaration of
nullity of marriage
RULE 87
ACTIONS BY AND
AGAINST EXECUTORS
AND ADMINISTRATORS
Actions That May Be Brought Against
Executor or Administrator:
1. Actions to recover real or personal
property or an interest therein;
2. Actions to enforce a lien thereon; and
3. Actions to recover damages for an injury
to person or property, real or personal.
Actions That May Not Be Brought
Against Executor Or Administrator:
1. Actions for the recovery of money or
debt or interest thereon; (Sec. 1) and
2. If the action would result in a direct
charge upon the estate, the executor or
administrator is to be sued in his
representative capacity.
Actions Which the Executor or
Administrator May Bring or Defend:
1. Actions for the recovery or protection of
the property or rights of the deceased;
2. The executor or administrator has the
right to sue upon any cause of actions
which accrued to the decedent during
his lifetime.
General Rule: Heirs or devisees are
prohibited from suing the Administrator or
Executor for recovery of title to, or
possession of, or for damages done to lands
of the estate while the Administrator or
Executor is still discharging his functions.
Exceptions:
1. Where there is already an order of the
court assigning the lands to the heirs or
devisees; and
2. When the time allowed for paying debts
has expired.
 The prohibition applies only to heirs or
devisees and not to a donee inter vivos who
may file an action to compel the
administrator to deliver the property donated.
contractual
Powers Given to Administrators or
Executors Which Require Court
Approval:
1. Compound with the debtor of the
deceased for a debt due; and
2. Give a discharge of such debt on
receiving a just dividend of the estate of
the debtor.
Powers Given to Administrator or
Executor Which Do Not Require Court
Approval:
1. Foreclose any mortgage belonging to
the estate of the deceased; and
2. Enforce payment on the mortgage debt
on behalf of the estate of the deceased.
Instances Contemplated By Rule 87, Sec.
6: Where a person is:
1. Suspected of having concealed any of the
money, goods or chattels of the deceased;
2. Suspected of having embezzled any of the
money, goods or chattels of the deceased;
3. Suspected of having conveyed away any
of the money, goods or chattels of the
deceased;
4. In possession of any deed, conveyance,
bond, contract or other writing which
contains evidence of or tends to disclose
the right, title, interest or claim of the
deceased to real or personal estate, or the
last will and testament of the deceased;
5. With knowledge of any deed, conveyance,
bond, contract or other writing which
contains evidence of or tends to disclose
the right, title, interest or claim of the
deceased to real or personal estate, or the
last will and testament of the deceased.
arellano law
Remedies of the Court When the
Property is Concealed,
Embezzled or Fraudulently
Conveyed:
1. May cite the suspected person to
appear before it and may examine him
under oath on the matter;
2. May punish him for contempt and
commit him to prison until he submits to
the orders of the court.

 Property fraudulently conveyed
by the deceased to defraud the creditors
may be recovered by executor or
administrator in an action for the benefit of
the creditors. (Sec. 9)
 If the executor or administrator
has not commenced action, any creditors of
the estate may, with permission from the
court, prosecute to final judgment the
recovery of property in the name of executor
or administrator. (Sec. 10)
RULE 88
PAYMENT OF THE DEBTS
OF THE ESTATE
Conditions Before an Administrator or
Executor Can Pay Debts:
1. All the money claims against the estate
have been heard.
2. The amount of such claims has been
ascertained; and
3. It appears that there are sufficient
assets.
 Writ of execution is not the proper procedure
for the payment of debts, expenses of
administration.
 The proper procedure is for the court to
order the sale of personal estate or the sale
or mortgage of the real property of the
deceased and satisfy the debts and
expenses out of the proceeds.
 If the testator makes provision in his will, the
debts shall be paid according to it. But if the
provision made in the will is not sufficient,
such part of the estate of the testator, real or
personal, not disposed of by will shall be
appropriated. (Sec.2)
Order of Priority in the Properties
Chargeable for Debts:
1. Personal property designated in the will;
2. Personal property not disposed of by
will; and
3. Real property not disposed of by will.
CONTINGENT CLAIMS BECOMING
ABSOLUTE IN 2 YEARS:
1. If presented to the court or to the
Administrator or Executor within 2 years
from the expiration of the time limited for
other creditors to present their claims:
a. If not disputed – creditor will receive
payment
b. If disputed – should be proved before
the court
2. If not presented within the 2-year period:
a. If allowed by the court – the court
may order the distribution of the
assets retained in the hands of the
Administrative or Executor to the
claimant. If the property is already in
the hands of the distributees, claimant
may maintain an action against the
distributees to recover the debt.
Distributees shall be liable for the debt
in proportion to the amount of the
estate they have recovered from the
property of the deceased.
b. If not allowed – claimant will not
receive payment
Conditions Before Payment of Claims of
Creditors in Another Country Against an
Insolvent Estate of a Resident Citizen is
Allowed:
1. Claims have been duly proven in
another country against the estate of an
insolvent;
2. The Executor or Administrator in the
Philippines had knowledge of the
presentation of such claims in such
country; and
3. The Executor or Administrator had an
opportunity to contest their allowance.
Orders of Court Relating To Payments of
Debts Where an Appeal Has Been Taken:
1. Suspend the order for the payment of
the debts; or
2. Order the distribution among the
creditors whose claims are definitely
allowed, leaving in the hands of the
executor or administrator sufficient
assets to pay the claim disputed and
appealed.
Instances of Subsequent Distribution of
the Assets May Be Ordered By the Court:
1. If the whole of the assets are not paid
on the first distribution and if the whole
assets are not distributed; and
2. If other assets afterwards come to the
hands of the Executor or Administrator.
Period for Paying Debts and Legacies:
Administrator or Executor shall pay the
debts and legacies of the deceased within 1
year after the granting of letters
testamentary or of administration.
 This period is extendible for 6 months after
application and hearing. But the whole
period allowed for the original executor or
administrator shall not exceed 2 years.
 If the Administrator or Executor dies and a
new Administrator is appointed, the new
Administrator is given a period not exceeding
6 months beyond the time which the court
might have allowed the original Administrator
or Executor.
 If there are no assets sufficient to pay credits
of any one class of creditors after paying the
credits entitled to preference over it, each
creditor within such class shall be paid a
dividend in proportion to his claim.
RULE 89
SALES, MORTGAGES AND
OTHER ENCRUMBANCES
OF PROPERTY OF
DECEDENT
Requisites for the Sale of Personalty:
1. There must be an application of
executor or administrator;
2. There must be a written notice to the
heirs and other persons interested; and
3. It must be necessary for the purpose of
paying debts, expenses of
administration or legacies or for the
preservation of the property.
Instances Where Court May Authorize
Sale, Mortgage or Other Encumbrance of
Realty to Pay Debts and Legacies:
1. When the personal estate of the
deceased is not sufficient to pay the
debts, expenses of administration and
legacies; or
2. Where the sale of such personal estate
may injure the business or other
interests of those interested in the
estate. arellano law
When Court May Grant Authority to Sell,
Mortgage and Encumber Real Estate:
Requisites:
1. The testator has not otherwise made
sufficient provisions for the payment of
such debts, expenses and legacies;
2. The Executor or Administrator has made
an application for authority to sell real
estate;
3. Written notice of the application is given
to the heirs, devisees and legatees
residing in the Philippines; and
4. The sale, mortgage or encumbrance
would be beneficial to the persons
interested.
When Court May Authorize Sale,
Mortgage or Other Encumbrance of
Estate To Pay Debts And Legacies In
Other Countries:
Requisites:
1. When the sale of personal estate, or the
sale, mortgage or other encumbrance of
real estate is not necessary to pay the
debts, expenses of administration or
legacies in the Philippines; and
2. The estate of the deceased in the other
country is not sufficient to pay the debts,
expenses of administration and legacies
there.
When Court May Authorize Conveyance
of Realty Which Deceased Contracted to
Convey
Requisites:
1. The Executor or Administrator has made
an application to deed real property or
an interest therein. If the conveyance is
made in favor of the Administrator or
Executor, the deed is executed by the
clerk of court;
2. Notice of application for such purpose
has been given personally or by mail to
all persons interested, and such further
notice has been given by publication or
otherwise;
3. The assets in the hands of the Executor
or Administrator will not be reduced so
as to prevent a creditor from receiving
his full debt or diminish his dividend.
 This presupposes that there is no
controversy as to the contract contemplated
therein and that the assets of the estate will
not be reduced to the extent of depriving the
creditor of full payment of his claim or his just
dividend.
 If such objections obtain, the remedy of the
person seeking the execution of the contract
is an ordinary and separate action to compel
the same.

RULE 90
DISTRIBUTION AND
PARTITION OF THE
ESTATE
 The court loses jurisdiction over an
estate under administration only after
payment of all the debts and the residue
estate has been delivered to the
respective heir entitled to receive them.
Instances Where Court May Allow
Distribution:
1. After payment of the debts, funeral
charges, expenses of administration,
allowance to the widow and estate tax, if
any, chargeable to the estate in
accordance with law, have been paid; or
2. Before payment of said obligations of
the estate, if there is a sufficient bond
filed by the distributees.
Persons Liable To Pay for the Expenses
of Partition:
1. The Executor or Administrator, if at the
time of partition: (a) has retained
sufficient effects in his hands which may
be lawfully applied for the expenses of
partition of the properties distributed,
and (b) when it appears equitable to the
court and not inconsistent with the
intention of the testator.
2. Otherwise, they shall be paid by the
parties in proportion to their respective
shares or interest in the premises.
Instances When Probate Court May Issue
a Writ of Execution:
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; and (Rule 90, Sec. 3)
3. To satisfy the costs when a person is
cited for examination in probate
proceedings.
 A writ of execution may not issue to enforce
payment of a legacy because it is not a debt
of the estate.
 A final decree of distribution of the estate of
a deceased person vest title to the land in
the distributees.
 In case of non-distribution of the estate, a
motion for execution is the proper remedy.
 The probate court has the authority to order
the issuance of a writ of possession for the
recovery of the share by the heir or other
interested person from the executor or
administrator or other persons having
possession of the property without the need
of previous demand.
 The finality of the approval of the project
partition by itself alone does not terminate
the probate proceeding. As long as the order
of distribution has not been complied with,
the probate proceedings cannot be deemed
closed and terminated. (Guilas vs. Judge of
CFI of Pampanga, 43 SCRA 111)
 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 administration
proceedings if it had already been closed,
and not through an independent action.
(Guilas case, supra)
General Rule: Final liquidation of an estate
may not be set aside when the settlement
proceedings are already closed.
Exception: When a party interest in the
proceedings is left out by reason of
circumstances beyond his control, or
through mistake, or inadvertence not
imputable to negligence. Such party may file
a motion to reopen the proceedings
within the 30-day reglementary period.
Note: Filing of a separate action is NOT a
proper remedy. HOWEVER, in some cases,
Supreme Court allowed a separate action to
prosper since the estate proceedings had
been closed and terminated for over 3 years
and without the fault or negligence of the
party.
RULE 91
ESCHEATS
ESCHEAT – a proceeding whereby the real
and personal property of a decedent who
has no heirs becomes the property of the
State upon his death.
Instances of Escheat Proceedings:
1. When a person leaving property in the
Philippines died intestate;
2. When a person who has no known heirs
died intestate but his will was not
allowed;
3. Reversion proceedings when the sale is
in violation of a constitutional provision;
4. Unclaimed Balance Act.
VENUE: RTC of the province where the
deceased last resided or in
which he had estate, if he
resided outside the Philippines.
 The petition shall be filed by the Solicitor
General or his representative in behalf of the
Republic of the Philippines.
 The heirs in the proceedings are the
relatives up to the 5th civil degree of
consanguinity.
Requisites for Filing Petition for Escheat:
1. That a person died intestate;
2. That the decedent left no heirs or
person by law entitled to the same; and
3. That the decedent left properties.
 Once the court acquires jurisdiction to hear the
petition for escheat, this jurisdiction cannot be
converted into one for the distribution of the
properties of the decedent. Proper petitions must
be presented and proceedings should comply
with the requirements of the Rule. (In Re Anne
Fallen Murphy, GR No. L-14157, Oct. 26, 1960)
Basis of the State’s Right to Receive
Property in Escheat:
 In the order of succession under the
Civil Code, the State is the last heir of
the decedent.
Prescriptive Period:
 Claims to the estate should be filed
within 5 years from the date the property
was delivered to the State. Otherwise,
the claim shall be barred forever.
To Whom Will The Property Escheated
Be Assigned:
1. If personal property, in the municipality
or city where he last resided;
2. If real property, where the property is
situated; or
3. If deceased never resided in the
Philippines, where the property may be
found.
 An action for reversion shall be filed in
the province where the land lies in
whole or in part (Sec. 5). It is proper in
illegal sales of land to disqualified
aliens.
 The court cannot convert escheat
proceedings into ordinary special
proceedings or vice-versa because the
two actions have different requirements
in acquiring jurisdiction. In other Special
Proceedings, publication is once a week
for 3 weeks while in escheat, once a
week for 6 weeks.
Escheat vs. Reversion: An action for
reversion is slightly different from an escheat
proceeding but its effects, they are the
same. They only differ in procedure.
Escheat – may be constituted as a
consequence of a violation of Article XIII of
the Constitution which prohibits transfers of
private agricultural land to aliens.
Reversion – authorized under Public Land
Act. (Commonwealth Act No. 141)
RULE 92
GUARDIANSHIP
GUARDIANSHIP – the power of protective
authority given by law and imposed on an
individual who is free and in the enjoyment
of his rights, over one whose weakness on
account of age or other infirmity which
renders him unable to protect himself.
Nature of Guardianship:
A Trust Relation of the most sacred
character.
Basis: Parens Patriae – the duty of the
state in protecting the rights of persons who
because of age or incapacity, are in an
unfavorable position vis-à-vis other parties.
Venue:
1. If the minor or incompetent person is
residing in the Philippines – the place of
residence of the minor or incompetent;
2. If outside the Philippines – the place
where the property is situated.
 d; Friend;
 Guardianship of Minors is now 3. Othe 3.
governed by the Rule on Guardianship r person on behalf Other person on
of Minors (AM No. 03-02-05-SC) which took of a minor behalf of the
4. The incompetent
effect on May 1, 2003.
minor himself if 14 who has no
 R.A. 8369, Family Courts Act of 1997 years of age or parents or
vested the Family Courts with exclusive over; or lawful guardian;
original jurisdiction on Guardianship of 5. The or
Minors. Secretary of Social 4.
 Guardianship of Incompetents are still Welfare & The Director of
governed by the provision of the Rules Development & by Health in favor
of Court on guardianship. (Rule 92 to 97) the Secretary of of the insane
Health in case of person who
an insane person should be
KINDS OF GUARDIANS:
who needs to be hospitalized or
A. According to Scope hospitalized. in favor of an
1. Over the PERSON OF THE WARD; isolated leper.
2. Over the PROPERTY; or
3. Over BOTH of the above.  The petition shall be verified and
accompanied by a certification against forum
B. According to Constitution shopping. However, no effect in the petition
1. Legal Guardian – without the or verification shall render void the issuance
necessity of appointment by court; of letters of guardianship.
2. Guardian Ad Litem – court
appointed, to prosecute or defend a Notice of Application and Hearing to
minor, insane or incompetent, in a Whom Given:
court action; or 1. Persons mentioned in the petition
3. Judicial – court appointed, in residing in the Philippines; and
pursuance to law. 2. The minor himself if the above is 14
years old or over and the incompetent
Persons Considered As Incompetent: himself.
1. Persons suffering under the penalty of
civil interdiction; Ancillary Guardianship – the guardianship
2. Hospitalized lepers; in a state other than that in which
3. Prodigals; guardianship is originally granted and which
4. Deaf and dumb who are unable to read is subservient and subsidiary to the latter.
and write;
5. Persons of unsound mind even though Guardian Appointed for Non-Residents:
they have lucid intervals; and When a non-resident has property situated
6. Persons not of unsound mind but by in the Philippines, any relative, friend or
reason of age, disease, weak mind and anyone interested in the estate of the non-
other similar causes, cannot without resident may file a petition for appointment
outside aid, take care of themselves and of a guardian.
manage their property. arellano law
Grounds for Contesting Petition:
1. Majority of the alleged minor;
2. Competency of the alleged incompetent;
RULE 93 3. Unsuitability of the person for whom
letters are prayed.
APPOINTMENT OF
GUARDIANS Modifications of Sec. 7 of Rule 93 (Parents As
Guardians) By Article 225 of the Family Code:
1. The property of the child should now be
Who May Petition for Appointment of Guardian: worth P50,000 or less;
Minor Incompetent 2. Both the father and the mother shall exercise
legal guardianship over the property of their
1. Any 1.
unemancipated common child;
relative; Any relative;
3. When the market value of the property or the
2. Frien 2.
annual income of the child exceeds P50,000,
 the parent concerned shall be required to
furnish a bond in such amount as the court
may determine, but not less than 10% of the
value of the property or annual income.
 The appointment of a guardian is good until
set aside and, despite an appeal therefrom,
the guardian can do whatever is necessary,
under the direction of the court, for the
protection of the ward or his property.
RULE 94
BONDS OF GUARDIANS
Guardians should furnish a bond before
entering upon the execution of his trust or
before his letters of guardianship issues.
 The purpose is to the end that the minor be
assured of honest administration of his funds
during his minority.
 The ordinary and usual condition of a
guardian's bond is that he will faithfully
discharge his duties as such.
Conditions In The Filing of Bond:
1. To make and return to the court, within 3
months, a true and complete inventory of
all the estate;
2. To faithfully execute the duties of his trust;
3. 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
4. To perform all orders of the court.
RULE 95
SELLING AND
ENCUMBERING
PROPERTY OF WARD
When Guardian May Petition To Sell Or
Encumber The Property of the Ward With
Leave of Court:
1. When the income of an estate under
guardianship is insufficient to maintain
the ward and his family;
2. When the income is insufficient to
maintain and educate the ward when a
minor; and
3. When it appears that it is for the benefit
of the ward, his real estate or some part
thereof may be sold or mortgaged or
otherwise encumbered, and the
proceeds thereof put out at interest, or
invested in some productive security.
 The order empowering the guardian to
sell the property belonging to the ward
shall not be effective for more than 1
year after it has been granted.
 In the case of mortgages and other
encumbrances, the one-year period
does not apply.
 Appeal, not certiorari or mandamus, is
the proper remedy against an order of
the court a quo authorizing the sale of a
ward’s property.
 In the absence of any special authority to
sell conferred by will, statute or order of
court, a sale of the ward’s realty by the
guardian without authority from the court is
VOID. (Singco vs. Longa, 51 Phil. 507)
 A spouse who desires to sell real property
as such administrator of the conjugal
property must observe the procedure for the
sale of the ward’s estate required under
Rule 95, NOT the summary judicial
proceedings under Article 124 of the Family
Code. (Glenda Uy vs. CA, GR No. 109557,
Nov. 29, 2000)
RULE 96
GENERAL POWERS AND
DUTIES OF GUARDIANS
Powers and Duties of A Guardian:
1. Care and custody of the person of the
ward and the management of the ward’s
estate;
2. Settle all accounts of his ward;
3. Demand, sue for and receive all debts
due to the ward;
4. Compound the debts and give discharge
to the debtor, on receiving a fair and just
dividend of the estate and effects, with
the approval of the court;
5. Represent his ward in all actions and
special proceedings unless another
person be appointed for the purpose.
6. May join in partition proceedings; and
7. Render an inventory of the estate of his
ward within 3 months after his
appointment and annually after such
appointment, an inventory and account.

Order of Priority In Paying Ward’s Debts:
1. Out of ward’s personal estate;
2. Out of the income of the ward’s real
estate; and
3. Out of the ward’s real estate upon
obtaining an order for the sale or
encumbrance thereof.
Requirements Before A Guardian May Be
Authorized To Join In Partition:
1. May be granted only after hearing the
petition for the grant of such authority;
2. Relatives of the ward are duly notified of
such petition for partition; and
3. Authorization may be granted only after
a careful investigation as to the
necessity and propriety of the proposed
action.
 After rendering an account, the
guardian, other than a parent, shall be
allowed the amount of reasonable expenses
incurred in the execution of his trust.
 The guardian is entitled to
compensation for his services, as the court
deems just, not exceeding 15% of the net
income of the ward. arellano law
RULE 97
TERMINATION OF
GUARDIANSHIP
GROUNDS FOR TERMINATION:
Minor Incompetent
The ward has 1. Comp
come of age; or etency of the ward
has died has been judicially
determined; or
2. Guard
ianship is no longer
necessary.
 Sec. 3 is inoperative because there is no
such thing as emancipation by marriage or
voluntary emancipation by reason of the
lowering of the age of majority to 18. (R.A.
6809)
 Sec. 4 is also inoperative by reason of the
removal of the municipal court’s jurisdiction
over guardianship proceedings under B.P.
129, as amended.
 The court which appointed the guardian
is also the court competent to decide the
petition for restoration of capacity which
is merely a continuation of the original
guardianship proceeding (Crisostomo vs.
Eudencia, 66 Phil 1)
GROUNDS FOR REMOVAL OF THE
GUARDIAN:
1. When he becomes insane;
2. Incapable of discharging his trust;
3. Unsuitable for discharging his trust;
4. Has wasted the estate;
5. Has mismanaged the estate; and
6. Has failed for 30 days after it is due, to
render an account or make a return.
SPECIAL RULES FOUND IN THE RULE ON
GUARDIANSHIP OF MINORS
AM No. 03-02-05-SC
A. Grounds for Petition: (Sec. 4)
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; and
4. When the best interest of the minor so
requires.
B. 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
guardianship;
6. Lack of conflict of interest with the minor;
and
7. Ability to manage the property of the minor.
Who May Be Appointed Guardian of the
Person Or Property, Or Both, of A Minor:
In default of parents or a court - appointed
guardian, the court may appoint the following,
observing as far as practicable, the order of
preference:
1. The surviving grandparent and in case
several grandparents survived, the court
shall select any of them taking into account
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; or
 4. Any other person who in the sound
discretion of the court would serve the best
interest of the minor. (Sec. 6)
RULE 98
TRUSTEES
TRUST – the right enforceable solely in
equity to the beneficial enjoyment of
property, the legal title to which is vested in
another.
Trustor – a person who establishes the trust.
Trustee – a person in whom confidence is
reposed as regards property or one who takes and
holds legal title to the trust property for the benefit
of another.
Beneficiary – a person for whose benefit the trust
has been created.
Kinds of Trusts:
1. Express – those created by the
intention of the trustor or the parties
(Articles 1443-1446 of the Civil Code)
2. Implied – those that came into being by
operation of law (Articles 1447-1457 of the
Civil Code)
 This rule applies only to express trusts as
these are understood in Arts.1443-1446 of
the Civil Code, and does not apply to implied
trusts which arise by operation of law.
Who May File Petition for Appointment of
Trustee:
1. Executor;
2. Administrator; or
3. Person appointed as trustee under the
will or written instrument.
 The appointing court is the RTC in which the
will was allowed or the RTC of the province
in which the property or some portion
thereof, affected by the trust is situated.
 Although the will does not name a trustee,
the probate court exercises sound judgment
in appointing a trustee to carry into effect the
provisions of the will.
 The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic of the
Philippines.
 Before entering on the duties of his
trust, a trustee shall file a bond. Failure to file
such bond, he shall be considered to have
declined or resigned the trust. (Rule 98, Sec.
5)
 The non-acceptance of trustee is not
sufficient for failure of trust. Remedy is to go
to court for appointment of a trustee.
Conditions In Exempting A Trustee From
Giving A Bond:
1. When the testator has directed or
requested such exemption, and may so
exempt any trustee; or
2. When all persons beneficially interested
in the trust, being of full age, request the
exemption.
 The court may cancel such exemption at any
time and the trustee required to forthwith file
a bond.
Conditions Included In the Bond To Be
Performed By the Trustee:
1. To make and return to the court, at such
time as it may order, a true inventory of
all the real and personal estate
belonging to him as trustee;
2. To mortgage and dispose of all such
estate, and faithfully discharge his trust
in relation thereto;
3. To render a true account of the property
in his hands at least once a year; and
4. To settle his accounts in court at the
expiration of his trust.
Note: Requirement of court order when
there is a sale/encumbrance of trust estate.
Distinction Between the Duties of A Trustee And
An Executor Or Administrator:
Trustee Executor/Administrator
Duties are usually Duties are fixed and/or
governed by the limited by law
intention of the
testator or the
parties, if
established by
contract
May cover a wider Lesser range of duties
range of duties
 For purposes of prescription, the possession of
the property by the trustee is not an adverse
possession, and only a possession in the name
and in behalf of the owner of the same. (Tolentino
vs. Vitug, 39 Phil. 126)
Grounds for Removal of Trustee:
1. If removal appears essential to the (Sec. 7[b])
interests of parties; The adoptee must The adoptee must be a
2. Insane; be qualified under legally free child( one
3. Incapable of discharging his trust; or DAA (Sec. 8). who has been
4. Evidently unsuitable. arellano law voluntarily or
involuntarily committed
to the DSWD in
accordance with the PD
RULE 99 603 (Sec. 8).
ADOPTION AND Venue: Family Venue: Family Court
Court of the having jurisdiction over
CUSTODY OF MINORS province/city where the place where the
the prospective child residesn or may
parents reside. be found.
Note: Rules 99 and 100 which provide for the
rules on adoption particularly custody of minors
(Rule 99) and rescission and revocation of
adoption (Rule 100) have been MODIFIED with
RULE ON ADOPTION
“SUPERSEDED” accordingly by A.M. No. 02-6- A.M. 02-6-02
02 New Rules on Adoption effective August 22,
2002. This new rule is designed to protect the
“best interests” of the adoptee.
ADOPTION – a juridical act, a proceeding in
rem, which creates between 2 persons a  NOTICE to the Office of the Solicitor
relationship similar to that which results from General is mandatory when petition for
legitimate paternity and filiation. (Hofilena vs. adoption includes a prayer for a change
Republic, 34 SCRA 550)) of name. (Sec. 12)

Nature of Adoption:  Written consent of the natural parent

1. NON-ADVERSARIAL proceeding;
2. A proceeding IN REM.
 Only an adoption made through the
court, or in pursuance with the
procedure laid down in the Rules on
Adoption is valid in this jurisdiction.
is indispensable for the validity of the
decree of adoption, but it can be
dispensed with if the parent has
abandoned the child or that such parent
is insane or hopelessly intemperate.
(Cang vs. Court of Appeals, 296 SCRA 128)

Venue: WHO MAY ADOPT:

Petition for adoption shall be filed with the 1. Any Filipino citizen:
Family Court of the province or city, where a. Of legal age;
the prospective adopter resides. b. In possession of full civil capacity and
legal rights;
What the Court Determines: c. Of good moral character;
1. Capacity of the adopters; and d. Has not been convicted of any crime
2. Whether the adoption would be for the involving moral turpitude;
best interest of the child. e. Emotionally & psychologically capable
of caring for children;
Pertinent laws: f. In a position to support and care for
1. Domestic Adoption Act (R.A. 8552); his children, in keeping with the
2. Inter-Country Adoption Act (R.A. 8043) means of the family; and
g. At least 16 years older than the
DISTINGUISH R.A. 8552 FROM R.A. 8043 adoptee. (Sec. 4)
Domestic Inter-Country  The requirement of 16 years difference
Adoption Adoption between the adopter and the adoptee is
NOT applicable:
The alien-adopter There is no residency
1. If the adopter is the biological
must reside in the requirement for alien-
parent of the adoptee; or
Philippines for at adopter.
2. If the adopter is the spouse of the
least 3 years prior
adoptee’s parent.
to the filing of
petition for adoption
2. Any alien:
1. Possesses the same qualification as
above stated for Filipinos;
2. His country has diplomatic relations
with the Philippines;
3. Has been living in the Philippines for
at least 3 continuous years, prior to
the filing of the application for
adoption;
4. Maintains residence until the
adoption decree is entered;
5. Certified to have legal capacity to
adopt by his country; and
6. His government allows the adoptee
to enter his country as his adopted
child.
 The requirements on residency and
certification of the alien’s qualification to
adopt in his country may be waived for
the following:
1. A former Filipino citizen who
seeks to adopt a relative within the
4th degree of consanguinity or
affinity;
2. One who seeks to adopt the
legitimate child of his Filipino
spouse; or
3. One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within
the 4th degree of consanguinity or
affinity of the Filipino spouse.
3. Guardian
ADOPTION BY SPOUSES
General Rule: Husband and wife shall jointly
adopt.
Exceptions:
1. If one spouse seeks to adopt the
legitimate child of the other;
2. If one spouse seeks to adopt his or her
own illegitimate child. Provided, the
other spouse signified his consent
thereto; or
3. If the spouses are legally separated
from each other.
WHO MAY NOT ADOPT:
1. Guardian with respect to the ward prior
to the approval of final accounts
rendered upon the termination of their
guardianship relation; and
2. Person convicted of a crime involving
moral turpitude. (Article184 of the Family
Code)
WHO MAY BE ADOPTED:
1. Any person below 18 years old who has
been judicially declared available for
adoption;
2. The legitimate child of one spouse, by
the other spouse;
3. An illegitimate child, by a qualified
adopter to improve the child’s status to
that of legitimacy;
4. A person of legal age if, prior to the
adoption, said person had been
consistently considered and treated by
the adopters as his own child since
minority;
5. A child whose adoption has been
rescinded;
6. A child whose biological or adoptive
parents have died; or
7. A child not otherwise disqualified by law
or rules. (Sec. 5)
WHO MAY NOT BE ADOPTED:
1. Person of legal age, unless he/she is a
child by nature of the adopter or his/her
spouse, or prior to the adoption, said
person has been consistently
considered and treated by the adopter
as his/her own child during minority;
2. An alien with whose government the
Philippines has no diplomatic relations;
and
3. A person who has already been adopted
unless such adoption has been
previously revoked or rescinded.
 Petition shall be verified and specifically
state at the heading of the initiatory pleading
whether the petition contains an application
for a change of name, rectification of
simulated birth, voluntary or involuntary
commitment of children, or declaration of
child as abandoned, dependent or
neglected.
 A certification of non-forum shopping shall be
included pursuant to Rule 7, Sec. 5 of the
1997 Rules of Civil Procedure.
PROCEDURE:
1. No petition for adoption shall be set for
hearing unless a licensed social worker
has made a CASE STUDY of the
adoptee, adopter and the biological
parents.
2. No petition for adoption shall be finally
granted until the adopter/s has/ have
been given by the court a supervised
 trial custody period for at least 6
months.
3. After the publication of the order of
hearing, and no opposition has been
interposed to the petition, a decree of
adoption shall be entered stating the
name by which the child is to be known.
4. An amended birth certificate shall be
issued. The original birth certificate shall
be stamped “Cancelled” and shall be
sealed in the Civil Registry Records.
SUPERVISED TRIAL CUSTODY:
 Refers to a period of time (at least 6
months) during which a social worker
oversees the adjustment and emotional
readiness of both adopter/s and adoptee
in stabilizing their filial relationship.
 The period may be reduced or
parties may be exempted if it be for the
best interest of the adoptee.
EFFECTS OF ADOPTION:
1. Parental Authority: Vested unto the
adopter/s; All legal ties between
biological parents and the adoptee shall
be severed, except when biological
parent is spouse of adopter;
2. Status: Adoptee shall be
considered legitimate child of adopter
for all intents and purposes;
3. Use of Surname: Adoptee is entitled to
use the surname of the adopter;
4. Succession: Adopter/s & adoptee have
reciprocal rights of succession without
distinction from legitimate filiation. (Only
in legal or intestate succession)
 Citizenship is NOT acquired by the adoptee.
Such acquisition partakes of the character of
naturalization which is not regulated by the
Civil Code but by special laws on
naturalization. (Ching Leng vs. Galang, 104
Phil. 1058)
 Adoption creates only civil or
contractual rights.
AFFIDAVIT OF CONSENT annexed to the
petition, is required to be executed by the
following:
1. The adoptee, if 10 years of age or over;
2. Biological parents of the child, if known,
or the legal guardian, or person or
government agency who has legal
custody of the child;
3. The legitimate and adopted children of
the adopter and of the adoptee, 10
years of age or over;
4. The illegitimate children of the adopter
living with him, 10 years of age or over;
5. The spouse, if any, of the adopter or
adoptee.
INTER COUNTRY-ADOPTION
REPUBLIC ACT NO. 8043
INTER-COUNTRY ADOPTION – refers to the
socio-legal process of adoption of Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken and the
decree of adoption is issued outside the
Philippines.
Legally-Free Child – one who has been
voluntarily or involuntarily committed to the
DSWD, in accordance with the Child and Youth
Welfare Code.
Where To File Petition:
A verified petition must be filed with the
Family Court having jurisdiction over the
place where the child resides or may be
found. It may be filed directly with the Inter-
Country Adoption Board.
WHO MAY ADOPT:
1. Any alien or Filipino citizen permanently
residing abroad who is at least 27 years
old; and
2. Other requirements same as R.A. 8552.
Who May Be Adopted: Only a legally free
child may be the subject of
Inter-Country adoption. A child,
under this Act, is defined as
any person below 15 years of
age.
Who Constitute the Inter-Country
Adoption Board: (Appointed by the President)
1. Secretary of the Department of Social
Welfare and Development as ex officio
Chairman;
2. A psychiatrist or psychologist;
3. 2 lawyers who shall have at least the
qualifications of a regional trial court
judge;
4. A registered social worker, and;
5. 2 representatives from non-
governmental organizations engaged in  Superseded accordingly by A.M. 02-
child-caring and placement activities. 6-02.
 Adoption, being in the best interests
JUDICIAL EXTRA-JUDICIAL
of the child, shall NOT be subject to
ADOPTION ADOPTION
Proper in domestic Proper in inter-country rescission by the adopter. However, the
adoption adoption adopter may disinherit the adoptee for
Under the jurisdiction of Under the jurisdiction of cause provided for by law. arellano law
the Family Court the Inter-Country
(where adopter resides) Adoption Board (but a
petition may also be
GROUNDS FOR REVOCATION BY
filed with the Family ADOPTEE:
Court [where adoptee 1. Repeated physical or verbal
resides] which may turn maltreatment by the adopter despite
it over to ICAB)
Trial custody is in the Trial custody for 6
having undergone counseling;
Philippines for 6 months in the country 2. Attempt on the life of the adoptee;
months (but court may of adopter and is 3. Sexual assault or violence; or
reduce period of mandatory before a 4. Abandonment and failure to comply with
exempt parties from decree of adoption is
trial custody) issued (expenses are
parental obligation. (Sec. 19)
borne by the adopter)
Petition for adoption Petition for adoption Time Within Which To File: Petition for
may include prayer for only rescission or revocation must be filed within
change of name, or 5 YEARS after reaching the age of majority
declaration that child is
a foundling, or if incompetent, from recovery of
abandoned, dependent competency.
or neglected child
Legitimate or Only a child legally Rule on Custody of Minors
illegitimate child of a available for domestic
spouse or even a adoption may be the  Sections 6 & 7 of Rule 99 NOT
person who is of legal subject of inter-coutry expressly repealed by the New Rule on
agemay be adopted adoption Adoption.
Income tax returns, Income tax returns,
police clearance, police clearance,
 “Best Interests of the Minor” is the
character reference, character reference,
family picture, birth family picture, birth yardstick to be used by the court in granting
certificate of adopter certificate of adopter custody.
are required to be are required to be
annexed to the petition annexed to the petition  Best Interests means the totality of the
Petition must be No publication circumstances and conditions as are most
published at least once requirement congenial to the survival, protection, feelings
a week for 3 of security of the minor and most
successive weeks in a encouraging to his physical, psychological
newspaper of general
circulation in the
and emotional development.
province or city where
court is situated It also means the least detrimental available
Application is through a Application may be alternative for safeguarding the growth and
petition with the FC through agency in development of the minor.” (Sec. 14, A.M. 03-
foreign country and 04-04-SC)
then submit to ICAB
Decree of adoption Decree of adoption Proceedings When Parents of Child Are
issued by FC which has issued by a foreign
jurisdiction over case court Separated: The question as to the care,
custody and control of a child or children of
their marriage must be brought before the
FAMILY COURTS via petition or ancillary
thereto in a pending case for legal
RULE 100
separation or annulment of marriage. (Rule
RESCISSION AND 99, Sec. 6)

REVOCATION OF Note: This pertinent Rule presupposes a

ADOPTION judicial proceeding for the annulment of
 marriage, declaration of nullity, or legal
separation.
Jurisdiction & Venue of Custody
Proceedings: Family Courts of the province
or city where petitioner is residing.
Guidelines In Awarding Custody of the
Child:
1. NO child UNDER 7 years of age shall
be separated from its mother, unless the
court finds compelling reasons therefor.
2. If the child is OVER 10 years of age, the
court shall permit the child to choose
which parent he prefers to live with.
Child’s preference shall be respected,
unless the parent chosen is unfit to take
charge of the child by reason of moral
depravity, incapacity, habitual
drunkenness, or poverty.
3. Order of Preference in Granting
Provisional Custody:
a. Both parents jointly;
b. To either parent, taking into account all
relevant considerations;
c. Paternal or maternal grandparents;
d. Oldest brother or sister over 21 years of
age;
e. A reputable and discreet person; or
f. To any suitable asylum, children’s home
or benevolent society.
 The remedy of APPEAL is available
against order of the court depriving the
parents of the custody of their child.
Proceedings As To Abused Or Vagrant
Child:
This provision contemplates a situation
when parents of any minor child are:
1. Dead;
2. By reason of long absence, or physical
disability;
3. Cannot support it through vagrancy,
negligence, or misconduct or neglect or
refuse to support;
4. Treat with excessive harshness;
5. Give corrupting orders; or
6. Cause to allow the minor to engage in
begging or to commit offenses contrary
to law. (Rule 99, Sec. 7)
Who May File:
Any reputable resident of the province or city
where the child is found.
Venue:
This proceeding falls under the original and
exclusive jurisdiction of the Family Courts.
(Family Courts Act of 1997)
Procedure:
1. The Family Court may issue an order
requiring such parent/s or the fiscal of
the province or city (if the parents are
dead or cannot be found) to show
cause, at a time and place fixed in the
order why the child should not be taken
from its parents.
2. If petition is meritorious, and that it is for
the best interest of the child, that court
may order commitment of the child to a
suitable orphan asylum, children’s
home, or benevolent society or person.
RULE ON COMMITMENT OF
CHILDREN
A.M. 02-A-19-SC, April 15, 2002
Purpose: This rule seeks to protect the child
from all forms of neglect, abuse, cruelty or
exploitation and other conditions prejudicial
to his development.
Commitment or “Surrender of a Child” –
the legal act of entrusting a child to the care
of the DSWD or any duly licensed child
placement or child-caring agency or
individual by the court, parent or guardian or
any interested parties.
Petition for Involuntary Commitment of A
Child:
Filed By: The Secretary of DSWD or his
authorized representative or any duly
licensed child-placement or child-caring
agency, having knowledge of a child who
appears to be DEPENDENT, ABANDONED
or NEGLECTED.
Duties of the Public Prosecutor:
1. Appears for and in behalf of the State;
2. To ascertain that there is due notice to
all parties concerned; and
3. That there is justification for the
declaration of dependency,
abandonment or neglect.
Voluntary Commitment of A Child To An
Institution Or Individual:
This is done by the parent or guardian,
which shall be made in writing, duly
notarized and signed in the presence of an
authorized representative of the DSWD after
counseling and other services.
RULE ON CUSTODY OF
MINORS AND WRIT OF
HABEAS CORPUS IN
RELATION TO CUSTODY OF
MINORS
A.M. 03-04-04-SC
Applicability:
This rule shall apply to petitions for custody
of minor and writs of habeas corpus in
relation thereto, where NO proceedings for
annulment of marriage or declaration of
nullity, or legal separation being filed in the
Family Courts.
WHO MAY FILE: Petition for the rightful
custody of a minor may be filed by any
person claiming such right.
WHERE: Family Courts of the province or
city where petitioner resides or where the
minor may be found.
Factor To Be Considered Mainly In
Determining Custody:
The courts shall consider the best interests
of the minor and shall give paramount
consideration to his material and moral
welfare.
Court Shall Also Consider:
1. Any extrajudicial agreement respecting
the rights of the minor, to maintain direct
contact with the non-custodial parent;
2. The desire and ability of parent to foster
an open and loving relationship between
the minor and the other parent;
3. Health, safety and welfare of the minor;
4. Any history of child or spousal abuse by
the person seeking custody or who has
had filial relationship with the minor;
5. The nature and frequency of contact
with both parents;
6. Habitual use of alcohol or regulated
substances;
7. Marital misconduct;
8. The most suitable environment for the
holistic development and growth of the
minor; or
9. Preference of the minor over 7 years of
age. arellano law
Petition for Writ of Habeas Corpus
Involving Custody of Minors:
1. Where it appears the minor is being kept
from a parent by the other, or in similar
situations involving other parties; and
2. Time is of the essence.
Requisites:
1. Petitioner has the right to the custody
over the minor;
2. The rightful custody of the minor is
being withheld from the petitioner by
respondent; and
3. It is for the best interest of the minor
concerned to be in the custody of
petitioner and not that of the
respondent.
Where To File:
Family Court – where petitioner resides or
minor may be found; writ enforceable only
within its territorial jurisdiction (judicial
region).
Regular Regional Trial Court – if no Family
Court or its Presiding Judge is absent.
Supreme Court or Court of Appeals –
enforceable within the entire country. Writ
returnable to the Family Court or any regular
courts where petitioner resides or minor may
be found, for proper determination of
custody.
 The case of Orda vs. CA, 192 SCRA 768,
prohibiting the Court of Appeals from
referring the petition for habeas corpus to the
trial court may have been abandoned by this
pertinent Rule.
 The writ of habeas corpus is the proper legal
remedy to enable the parents to regain
custody of a minor daughter, even though
the latter be in the custody of a third person
of her own free will. (Sombong vs. CA, 252
SCRA 662)
RULE 101
HOSPITALIZATION OF
INSANE PERSONS
Venue:
The proceeding is instituted in the RTC of
the province where the person alleged to be
insane is found.
Who May File:
It shall be filed by the Director of Health or
the present authorized officer, where in his
opinion, such commitment is for public
welfare or for the welfare of the person who,
in his judgment is insane, and such person
or the one having charge of him is opposed
to his being taken to a hospital or other
place for the insane.
Commitment of an Insane Person vs.
Appointment of a Guardian:
Commitment Appointment
Primarily for the Purpose is for the
purpose of protecting protection of the
the community at large person and estate of
and in the nature of the insane
police regulation
Insanity – a condition of complete
deprivation of intelligence, or the power to
discern or that there is total deprivation of
reason.
 Sec. 1 of Rule 101 recognizes the capacity of a
Director to determine whether or not a person
is insane.
 It is the duty of the provincial or city fiscal to
prepare a petition for the Secretary of Health
and to represent him in court. (Rule 101, Sec 5)
Notice of Hearing To Be Given To:
1. Person alleged to be the insane; and
2. The one having charge of him, or on
such of his relatives residing in the
province or city.
RULE 102
HABEAS CORPUS
HABEAS CORPUS – a high prerogative writ
considered as an exceptional remedy to
release a person whose liberty is illegally
restrained, such as when the constitutional
rights of a person are disregarded.
WRIT OF HABEAS CORPUS – an order by
a competent court directed to the person
detaining another and commanding him to
produce the body of a person at a certain
time and place with the day and the cause of
his capture or detention.
 Summary in nature because it is attended
with unusual dispatch.
Purpose:
1. To obtain immediate relief from illegal
confinement;
2. To liberate those who may be
imprisoned without sufficient cause; and
3. To deliver them from unlawful custody.
INSTANCES WHERE THE WRIT OF
HABEAS CORPUS MAY LIE:
1. In all instances of illegal detention
whereby a person is deprived of his
liberty.
2. In cases where the rightful custody of
the person is withheld from the person
who is legally entitled thereto.
WHO MAY AVAIL OF THE WRIT:
1. Those deprived of their liberty (through
illegal confinement);
2. Those illegally detained from rightful
custody of the person entitled thereto;
3. Those deprived of their constitutional
right resulting in restraint of a person;
4. Those upon whom a sentence was
imposed by a court without jurisdiction;
and
5. Those upon whom an excessive penalty
has been imposed, as such, sentence is
void as to such excess.
WHO MAY GRANT THE WRIT:
1. Supreme Court or any member thereof;
2. Court of Appeals or any member
thereof;
3. Regional Trial Court or any judge
thereof; and
4. MTC, in the absence of RTC judges, in
the exercise of SPECIAL jurisdiction.
REQUISITES OF APPLICATION:
1. The application shall be by petition
signed and verified either by the party
for whose relief it is intended, or by
some other person on his behalf; and
2. Allegations in the Petition:
a. The person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
 b. Officer or name of the person by whom
he is 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. Place where he is imprisoned or
restrained, if known; and
d. Copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority,
such fact shall appear.
 A writ of habeas corpus will not be granted
when the confinement is or has become
legal, although such confinement was illegal
at the beginning. (Matsura vs. Director of
Prisons, 7 Phil. 1050)
 Most important allegation is the restraint of
liberty; such restraint should be actual and
effective and not merely nominal or moral;
however actual confinement is not
necessary.
 latter reaches the record but not the body.
KINDS OF WRIT OF HABEAS CORPUS:
1. Preliminary Citation – Order issued to
gov’t officer having the person in his
custody to show cause why the writ of
habeas corpus should not be issued
(The detention must not be patently
illegal).
2. Peremptory Writ – issued when the
cause of the detention appears to be
patently illegal and the non-compliance
therewith is punishable.
Preliminary Citation Peremptory Writ
Only requires Unconditionally
respondent to appear commanding
& show cause why a respondent to have
peremptory writ the body of the
should not be detained person
granted. appear before the
court at a time and
place therein
specified.
When Writ Not Allowed Or Person Not
Discharged:
1. Person alleged to be restrained of his
liberty is in custody of an officer under
process issued by court or judge or by
virtue of a judgment or order of a court
of record;
2. Person is charged with or convicted of
an offense in the Philippines; and
3. Person is suffering from imprisonment
under lawful judgment.
Petition for Habeas Corpus Is Not Proper
When:
1. Asserting or vindicating denial of right to
bail;
2. Correcting errors in appreciation of
facts/law; and
3. When the trial court has jurisdiction
 The release of a person illegally detained,
whether permanent or temporary renders
the petition for habeas corpus moot and
academic, UNLESS there are restraints
attached to such release which precludes
freedom of action, in which case, the court
can still inquire into the nature of his
involuntary restraint. (Villavicencio vs.
Lukban, 39 Phil. 778)
 A writ of habeas corpus may be used with
the writ of certiorari for the purpose of
review. The former reaches the body and
jurisdictional matters but not the record; the
(Galvez vs. CA, 237 SCRA 685)
[Please see Comparative Chart on
Habeas Corpus, Writ of Habeas Data and
Writ of Amparo on page 152]
RULE 103
CHANGE OF NAME
NAME – a word or combination of words by
which a person is known or identified.
Venue:
The petition shall be filed in the RTC of the
province in which he resides.
 The nature of the proceeding is in rem; thus,
strict compliance with publication is
necessary.
General Rule: No entry in the civil registry
shall be changed or corrected without a
judicial order.
Exception: In case of clerical or
typographical errors and change of the first
name or nickname which can be corrected
or changed by the concerned city or
municipal registrar or consul general in
accordance with RA 9048.
PROCEDURE:
A. Form:
 Petition must be signed and verified by
the person desiring to change his name Distinctions Between Rule 103 and
or some other person in his behalf. Rule 108 in Relation to R.A. 9048:
 Verification of the petition for change of Cancellation Or
name is not a jurisdictional but a formal Change Of Name Correction Of
requisite. Its non-compliance does not Entries
necessarily render the pleading fatally
defective. (Oshito vs. Republic, 19 SCRA Involves substantial Involves clerical or
700) changes typographical errors
such as those which
B. Contents: are visible to eye or
1. Petitioner has been a bonafide obvious to the
resident of the province or city understanding and
involves a harmless
where the petition is filed for at least
or innocuous change
3 years prior to the date of filing;
2. The cause for which the change of Cancellation Or
name is sought; and Change Of Name Correction Of
Entries
3. The new name asked for.
An appropriate An appropriate
C. Publication of the Order of Hearing: adversary proceeding summary proceeding
 For 3 successive weeks in a newspaper Requires judicial Directed or changed
of general circulation. order by the city or
municipal civil
D. Hearing: registrar or consul
 Shall not be within 30 days prior to an general without a
election nor within 4 months after the judicial order
last publication of the notice.

E. Judgment
JUSTIFIABLE CAUSES FOR CHANGE OF
NAME:
1. The name is ridiculous, dishonorable, or
is extremely difficult to write or
pronounce;
2. The change results as a legal
consequence, as in legitimation;
3. The change is necessary to avoid
confusion (not confusion caused by
petitioner's own use of unauthorized alias);
4. Having continuously used and been
known since childhood by a Filipino
name, unaware of his alien parentage;
5. Sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith, without prejudice to public
interest and not for a fraudulent
purpose.
Insufficient Grounds for the Change of
Name:
1. Separation of spouses;
2. No proof of prejudice by use of official
name;
3. Mere use and known by different name;
4. No proof that the true name evokes
derisive laughter.
RULE 107
ABSENTEES
Period To File A Declaration of Absence:
1. after the lapse of 2 years from
disappearance without any news from
him or from the receipt of the last news;
or
2. 5 years in case the absentee has left a
person in-charge of the administration of
his property.
WHO MAY FILE:
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
3. The relatives who may succeed by the
law of intestacy; or
4. Those who have over the property of the
absentee some rights subordinated to
the condition of his death.
 It is not necessary that a declaration of
absence be made in a proceeding separate
from and prior to a petition for
administration. (Reyes vs. Alejandro, 141
SCRA 65)
 The judicial declaration of absence shall not
take effect until 6 months after its publication
 in a newspaper of general circulation. (Art.
386 Civil Code)
CANCELLATION OR
CORRECTION OF
Venue: The residence of absentee prior to
the filing of petition (Sec. 1, Role 107).
ENTRIES IN THE CIVIL
REGISTRY
Who May Be Appointed As
Representative:
Note: This Rule is modified accordingly by R.A.
3. The
9048, i.e. Clerical Error Law (infra) and its
spouse, if present, shall have Implementing Rules, allowing corrections in the
preference in the appointment when civil register without the need of judicial order.
there is no legal separation;
4. If the Scope: RULE 108 applies to substantial
absentee left no spouse, or, if the changes or correction of entries in the civil
spouse is incompetent, or, if a minor, registry, which is an APPROPRIATE
any competent person may be ADVERSARY proceeding.
appointed by the court; or
5. In case of  R.A. 9048 & Its Implementing Rules
declaration of absence, the trustee or apply to changes or correction of clerical
administrator shall be appointed in the errors of a harmless and innocuous
same manner as above cited. nature, which is an administrative
When Trusteeship Or Administration of proceeding. It is also regarded as an
Property Shall Cease Upon the Order of APPROPRIATE SUMMARY proceeding.
the Court: Who May File: The petition may be filed by
1. Absentee appears personally or by any person interested in an act,
means of an agent; event, order or decree
2. Death of the absentee is proved and his concerning the civil status of
testate or intestate heirs appear; and persons, which has been
3. Third person appears, showing by recorded in the civil register.
proper document that he has acquired
the absentee's property by purchase or Venue: The proceeding is instituted in the
other title. RTC of the province where the
civil registry is located.
Absentee Consequence
0 years to 2 years Entries Subject To Correction &
Cancellation:
Petition for
declaration of
1. Births;
2 years to 7 years 2. Marriages;
absence may be
filed 3. Deaths;
4. Legal separations;
Beyond 7 years Considered dead
(absence of 4 years for all intents and
5. Judgments of annulments of marriage;
under extraordinary purposes, except 6. Judgments declaring marriages void
circumstances) for purposes of from the beginning;
succession 7. Legitimations;
For purposes of 8. Adoptions;
marriage: 4 years 9. Acknowledgments of natural children;
continuous absence 10. Naturalization;
shall be sufficient for the 11. Election, loss or recovery of citizenship;
present spouse to 12. Civil interdiction;
remarry (2 years only 13. Judicial determination of filiation;
under extra ordinary 14. Voluntary emancipation of minor; and
circumstances) 15. Change of name.

Parties To Be Impleaded:
1. The Civil Registrar concerned; and
RULE 108
2. All persons who have or claim any Requires judicial Generally directed or
interest which would be affected order changed by the city or
thereby. municipal civil
registrar or consul
Notice & Publication: general without a
 Notice of time and judicial order
place for the hearing to be given to all
persons named in the petition.  Petition for change of name and petition
 Publication is for for cancellation or correction of entries
3 consecutive weeks in a newspaper of are distinct proceedings. Hence, a party
general circulation. cannot change name and correct an
entry in a single petition without
When Opposition To the Petition Is Filed: satisfying the jurisdictional requirement.
1. 15 days counted from the notice of the
petition; or  A petition for correction is an action in rem.
x x x It is the publication of such notice that
2. 15 days counted from the last brings in the whole world as party in the
publication of the notice. case and vests the court with jurisdiction to
hear and decide. (Barco vs. CA, 420 SCRA
162)
Petition For The
Petition For Correction Or  If the correction sought to be made in the
Change Of Name Cancellation Of civil register is clerical, then the procedure to
Entries be adopted is summary. If the rectification
affects the civil status, citizenship or
Petition should be Verified petition filed nationality of a party, it is deemed
filed in the RTC in the RTC where the substantial, and the procedure to be
where the petitioner corresponding Civil adopted is adversary. (Republic vs. Valencia
resides Registry is located [141 SCRA 462, 474) arellano law
Civil Registrar is not a Civil registrar is an  An appropriate adversary suit or proceeding
party indispensable party. is one where the trial court has conducted,
If not made a party, proceedings where all relevant facts have
proceedings are null been fully and properly developed, where
and void. Reason: opposing counsel have been given
He is an interested opportunity to demolish the opposite party’s
party in protecting the case, and where the evidence has been
thoroughly weighed and considered.
integrity of the public
(Eleosida vs. Local Civil Registrar of
documents Quezon City, 382 SCRA 22)
Petition is filed by the By an person
person desiring to interested in any ACT,
change his name EVENT, ORDER or
DECREE
CLERICAL ERROR LAW
R.A. NO. 9048
Change of name only All cancellation or
correction of entries
 A surname CANNOT be
Involves substantial Generally involves the subject of a petition for change of
changes clerical or name under this procedure.
typographical errors  Correction of clerical or
such as those which
are visible to eye or
typographical error shall be availed only
obvious to the once with respect to particular entry or
understanding and entries in the same civil registry of
involves a harmless record.
or innocuous change  This procedure is
An appropriate Generally an SUMMARY and ADMINISTRATIVE.
adversary proceeding appropriate summary
proceeding SALIENT FEATURES:
Entry is correct but All cancellation or
1. Authority to Correct Clerical or
petitioner desires to correction of entries Typographical Error and Change of
change the entry First Name or Nickname:
  No entry in a civil registry shall be
changed or corrected without a
judicial order, EXCEPT for clerical or
typographical errors and change in
the first name or nickname which
can be corrected by the concerned
city or municipal civil registry or
consul general.
2. Clerical or Typographical Errors:
 Refers to a mistake committed in
the performance of clerical work in
writing, copying, transcribing or
typing an entry in the civil register
that is harmless and innocuous,
such as a misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or
obvious to the understanding and
can be corrected or changed only
by reference to other existing record
or records, PROVIDED that NO
CORRECTION must involve the
change of nationality, age, status,
sex of the petitioner.
3. Who May File and Where:
a. A person shall file a verified petition
with the local civil registry office of
the city or municipality where the
record being sought to be corrected
or changed is kept;
b. If petitioner had migrated to another
place in the country and would be
impractical to file the same, it may be
done in the local civil registrar of the
place where he is presently residing;
two (2) local civil registrars
concerned will communicate to
facilitate the petition; and
c. If petitioner is in a foreign country, file
in the nearest Philippine Consulate.
4. Grounds:
a. Petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult to
write pronounce; or
b. The new first name or nickname has
been habitually and continuously
used by the petitioner and he has
been publicity known by that first
name or nickname to avoid
confusion.
5. Form and Contents:
a. In affidavit form duly subscribed and
sworn to by the applicant. Setting
forth the facts necessary to
establish the merits of the petition
and shall show affirmatively that the
petitioner is competent to testify to
the matters stated;
b. Petitioner shall state the particular
erroneous entry of entries which are
sought to be corrected and/or the
change sought to be made;
c. The petition shall be supported with
the following documents:
i. A certified true machine
copy of the certificate or of the
page or of the registry book
containing the entry or entire
sought to be corrected or
changed.
ii. At least two (2) public or
private documents showing the
correct entry or entries upon
which the correction or change
shall be based; and
iii. Other documents which the
petitioner of the city or municipal
civil registrar, or the consul
general may consider relevant
and necessary for the approval
of the petition.
d. The petition shall be published at
least once a week for 2 consecutive
weeks in a newspaper of general
circulation;
e. Petitioner shall submit a certification
from the appropriate law
enforcement agencies that he has
no pending case or no criminal
record;
f. The petition and its supporting
papers shall be filed in 3 copies to
be distributed as follows: first copy
to the concerned city or municipal
civil registrar, or the consul general;
second copy to the Office of the
Civil Registrar General, and the
third copy of the petitioner.
RULE 109
APPEALS IN SPECIAL
PROCEEDINGS
WHO MAY APPEAL:
 Only interested persons may be allowed
to appeal. A stranger having neither
material nor direct interest in a testate or
intestate proceeding has no right to
appeal from any order issued therein.
MODE OF APPEAL:
General Rule: In special proceedings, the
period of appeals generally is 30 days, a
record on appeal being required.
Exception: Habeas corpus, where appeal
must be within 48 hours.
ORDERS OR JUDGMENTS FROM WHICH
APPEALS MAY BE TAKEN:
1. Allowance or disallowance of will;
2. Determination of the lawful heirs of a
deceased person, or the distributive
share of the estate to which such person
is entitled;
3. Allowance or disallowance, in whole or
in part, of any claim against the estate of
a deceased person, or any claim
presented on behalf of the estate in
offset to a claim against it;
4. Settlement of the account of an
executor, administrator, trustee or
guardian;
5. Orders constituting, in proceedings
relating to the settlement of the estate of
a deceased person, or the
administration of the trustee or guardian,
a final determination in the lower court,
of the rights of the party appealing
EXCEPT that NO appeal shall be
allowed from the appointment of a
special administrator; and
6. Final order or judgment rendered in the
case and affects the substantial rights of
the person appealing, unless it be an
order granting or denying a motion for a
new trial or for reconsideration.
 The enumeration is not exclusive.
ORDERS NOT APPEALABLE:
1. Order directing administrator to take
action to recover amount due to the
estate, being purely interlocutory;
2. Order made in administration
proceedings relating to inclusion or
exclusion of items in the inventory of
executor or administrator; and
3. Order appointing a special administrator,
being merely incidental to judicial
proceedings.
When Advance Distribution of the Estate
Is Allowed:
 Court may permit distribution of the
estate among the heirs or legatees,
notwithstanding a pending controversy
or appeal in proceedings to settle the
estate of a decedent, under the
following conditions:
a. Such part distributed is not affected
by the controversy or appeal; and
b. Upon compliance with Rule 90 of
the Rules of Court. arellano law
 COMPARATIVE CHART ON
HABEAS CORPUS, WRIT OF HABEAS DATA AND WRIT OF AMPARO
Habeas Corpus
Nature Remedy in all cases of
illegal confinement and/or
detention.
Ground A. Deprivation of liberty
B. Withholding of lawful
custody
Habeas Corpus
Petitioner Person confined or
detained pr any
interested person.
Respondent ▪ Public Officer
 Private Individual
(Exception to special
proceedings that there is
no respondent)
Jurisdiction Concurrent – RTC, CA,
Sandiganbayan and SC
MTC – in the exercised
of its special jurisdiction
in the absence of RTC
Writ of Habeas Data
Remedy against violation
of right to privacy in life,
liberty or security
(encroachment of
government to right to privacy
and communication).
Gathering, collecting or
storing of date or
information regarding
person, family, home and
correspondence.
Writ of Habeas Data
 Any member of the
immediate family
 Ascendant, descendant
or collateral relative
within the 4th civil
degree of consanguinity
 Public Official or
Employee
 Private Individual or
Entity
Concurrent – RTC, CA,
Sandiganbayan and SC
Writ of Amparo
Remedy against all
violation of right to life,
liberty and property.
Any unlawful act or
omission in violation of the
right to life, liberty and
property.
Writ of Amparo
 Any member of the
immediate family
 Ascendant, descendant
or collateral relative
within the 4th civil degree
of consanguinity
 Any concerned citizen,
organization, association
in the absence of the first
2
▪ Public Official or Employee
 Private Individual or Entity
Concurrent – RTC, CA,
Sandiganbayan and SC
 Judge

Enforcement of Within the judicial Enforced anywhere Enforced anywhere

Writ district

Venue Residence of petitioner - residence of petitioner Place where threat, act or

or where it is to be omission was committed
-residence of respondent
implemented
- place where data were
gathered, collected
(all at the option of petitioner)

Return (when As ordered 5 working days from 5 working days from service
made) service (72 hours was already
amended)

Procedure Hearing on the returns Summary Summary

Pleading Verified Petition Verified Petition Verified Petition

Return (Answer)
Return
(Note: There are prohibited
pleadings.
Petition for Relief is not a
prohibited pleading)
Return
(There are also prohibited
pleadings.
Motion to Dismiss as prohibited
pleading is absolute, even on
the ground of lack of jurisdiction.
The remedy in this case is for
the Court to dismiss the petition
motu propio by reason of judicial
notice of said Rule.
No prohibition for Motion for
New Trial because the Rule
itself provides that in the case of
CA, it may admit evidence
based only on newly discovered
evidence.

Habeas Corpus Writ of Habeas Data Writ of Amparo

Fees (Who Guilty Party No docket fee if you are Absolutely no docket fee
pays) (Note: Costs is pursuant to indigent.
judgment. No filing fee) (Note: Indigence must be
established in the course of
the hearing and not
immediately when filing.)

Interim Relief None None ▪ TPO (Temporary

Protection Order
▪ Inspection Order (Similar
with Rule 27 of ROC)
▪ Production Order
▪ Witness Protection Order
(Similar to the rule provided
for by DOJ on Witness
Protection Program)
(Note: Inspection and
Production Order are also
available to respondents)

Judgment No time frame 10 days from submission 10 days from submission

 (Different from the
return and writ)
Appeal 48 hours
Final Judgment ▪ To give custody to
person entitle
thereto
▪ That person be
relieved since
confinement is
illegal
CRIMINAL
PROCEDURE
CRIMINAL PROCEDURE
 method fixed by law or the Rules of
Court for the apprehension and
prosecution of persons accused of
any criminal offense and for their
punishment in case of conviction.
CONSTRUCTION
 Criminal procedure is a penal
statute and as such it should be
construed strictly.
 Penal statutes, substantive and
remedial or procedural are
construed strictly or liberally in favor
of the accused.
CRIMINAL JURISDICTION
 is the power of the State to try and
punish a person for violation of its
penal laws.
 Is the authority to hear and try a
particular offense and impose the
punishment for it. (People v. Mariano,
G.R. No. L-40527, June 30 1976)
Requisites for a Valid Exercise of
Criminal Jurisdiction:
1. Jurisdiction over the subject matter
 The offense is one which the court
is authorized to take cognizance of.
2. Jurisdiction over the territory
 The offense must have been
committed within its territorial
jurisdiction
3. Jurisdiction over the person of the
accused
15 days 15 days
Mode: Rule 45 on pure Mode: Rule 45 on both
question of law questions of law and fact
(exception to Rule 45 as such
rule covers only question of law)
Review, revise or Directed to extra-judicial
destruction of subject data killings and forced
disappearances.
 The person charged with the
offense must have been brought to
its presence for trial, forcibly by
warrant of arrest or upon his
voluntary submission to the court.
(Cruz v. CA, 388 SCRA 72)
DETERMINATION OF CRIMINAL
JURISDICTION
1) By the allegations in the complaint or
information not by the results of proof or
by the trial courts’ appreciation of the
evidence presented.
2) By the law in force at the time of the
institution of the criminal action. Once
vested, it cannot be withdrawn by:
a. A subsequent valid amendment of
the information; or
b. A subsequent statute amendatory of
the rules of jurisdiction.
JURISDICTION OF COURTS
a. Municipal Trial Courts – imposable
imprisonment of 6 years and below.
b. Regional Trial Courts – imposable
imprisonment of above 6 years
 This is regardless of the amount
of imposable fine.
JURISDICTION BASED ON PENALTY
IMPOSED
The RTC has jurisdiction over offenses
punishable by imprisonment exceeding 6
years.
The MTC has jurisdiction over offenses
punishable by imprisonment for a period of 6
years and less.
JURISDICTION WHERE FINE IS THE
ONLY PENALTY
The RTC has jurisdiction where the fine is
more than 4,000 pesos except in cases of
criminal negligence involving damage to
property which falls under the exclusive
original jurisdiction where the fine is 4,000
pesos or less.
JURISDICTION OVER COMPLEX CRIMES
Jurisdiction over the whole complex crime is
lodged with the trial court having jurisdiction
to impose the maximum and most serious
penalty imposable of an offense forming part
of the complex crime. It must be prosecuted
integrally and must not be divided into
component offenses which may be made
subject of multiple information brought in
different courts. (Cuyos vs. Garcia G.R. No. L-
46934, April 15, 1988)
JURISDICTION OVER CONTINUOUS
CRIMES
Continuing offenses are consummated in
one place, yet by the nature of the offense,
the violation of the law is deemed continuing
(e.g. estafa and libel). As such, the courts of
the territories where the essential
ingredients of the crime took place have
concurrent jurisdiction. But the court which
first acquires jurisdiction excludes the other
courts.
JURISDICTION OVER CRIMES
PUNISHABLE BY DESTIERRO
Where the imposable penalty is destierro,
the case falls within the exclusive jurisdiction
of the Municipal Trial Court, considering that
in the hierarchy of penalties under Article 71
of the Revised Penal Code, destierro follows
arresto mayor which involves imprisonment.
(People vs. Eduarte, G.R. No. 88232 February 26,
1990)
JURISDICTION OVER LIBEL CASES
Although punishable by prision correctional,
the jurisdiction falls within the RTC. (People
vs. MTC of Quezon City, G.R. No. 123263, Dec. 16,
1996)
JURISDICTION OVER VIOLATIONS OF
DANGEROUS DRUGS ACT
Regardless of its penalty, the jurisdiction
falls within the RTC (People vs. Morales, G.R. No.
126621, Dec. 12, 1997)
Note: Where the offense is within its
exclusive competence by reason of the
penalty prescribed therefore, an inferior
court shall have jurisdiction to try and decide
the case irrespective of the kind and nature
of the civil liability arising from the said
offense. (Legados vs. de Guzman, G.R. No. 35285,
Feb. 20, 1989). Also, the additional penalty for
HABITUAL DELINQUENCY is not
considered in determining jurisdiction
because such delinquency is not a crime.
CRIMINAL JURISDICTION OF
SANDIGANBAYAN
 Offenses or felonies whether simple or
complexed with other crimes committed
by the public officials and their
employees in relation to their office. If the
last element, namely “in relation to his
office” is absent or is not alleged in the
information, the crime committed falls
within the exclusive original jurisdiction of
ordinary courts and not the
Sandiganbayan.
 The offense is committed “in relation to
the office” if the offense intimately
connected with the office of the offender
and perpetrated while he was in the
performance of his official functions, or
when the crime cannot exist without the
office, or the office is a constituent
element of the crime as defined in the
statute.
Officials under the exclusive jurisdiction
of the Sandiganbayan
1. Those expressly enumerated in PD
1606, as amended by RA 8249;
Violations of RA 3019 (Anti-Graft and
Corrupt Practices Act), RA 1379 and
Chapter 2, Sec. 2, Title 7, Book 2, RPC.
2. Officials of the executive branch,
occupying salary grade 27 and higher.
3. Provincial governors vice governors,
members of the sangguniang
panlalawigan and provincial treasurers,
assessors, engineers and other
provincial department heads.
4. City mayors, vice-mayors, members of
the sangguniang panlungsod, city
treasurers, assessors, engineers and
other city department heads.
5. Officials of the diplomatic service
occupying the position of consul and
higher.
6. Philippine army and air force colonels,
naval captains, and all officers of higher
rank.
7. Officers of the PNP while occupying the
position of provincial director and those
holding the rank of senior
superintendent or higher.
8. City and provincial prosecutors and their
assistants and officials and prosecutors
in the Office of the Ombudsman and
special prosecutors.
9. Presidents/directors/trustees/managers
of GOCCs, state universities or
educational institutions/foundations.
10. Members of Congress and officials
thereof classified as Grade 27 and up.
11. Members of the Judiciary, without
prejudice to Constitutional provisions.
12. Chairmen and members of
Constitutional Commissions, without
prejudice to Constitutional provisions.
Exemptions:
1. Election Offenses – It is the Regional
Trial Court that has jurisdiction as
provided for in the Omnibus Election
Code even if they are committed by
public officers classified as Grade 27
and higher and in relation to their
offices.
2. Court Martial Cases – Offenses
committed by members of the Armed
Forces and other persons subject to
military law are cognizable by court
martial if such offenses are “service
connected” as expressly enumerated in
RA 7055.
JURISDICTION OF FAMILY COURTS
RA No. 8369 establishing the Family Court
granting them exclusive original jurisdiction
over child and family cases, namely:
Criminal cases where one or more of the
accused is below 18 years of age but not
less than 9 years of age or where one or
more of the victim 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 shall be suspended
without need of an application pursuant to
the “Child and Youth Welfare Code or PD
603.
KATARUNGANG PAMBARANGAY (PD
1508)
General Rule: Parties have no power to
enter into amicable settlement as regards
crimes.
Exception: Offenses punishable by
imprisonment of less than 30 days or a fine
not exceeding P200.
General Rule: If parties are resident of the
same barangay then settle through the
Lupon of the Barangay.
Exceptions:
1. If residents are from different barangays
but in the same city/municipality, then in
the barangay where respondent or any
of the respondents actually resides, at
the complainant’s election.
2. All disputes which involve real property
(or any interest therein) shall be brought
in the barangay where the real property
(or any part thereof) is situated.
The Lupon has NO authority over
disputes:
1. Involving parties who actually reside in
barangays of different
cities/municipalities, except where such
barangays adjoin each other.
2. Involving real property located in
different municipalities.
Jurisdiction over the whole complex
crime is lodged with the trial court having
jurisdiction to impose the maximum and
most serious penalty imposable of an
offense forming part of the complex crime.
RULE 110
PROSECUTION OF
OFFENSES
INSTITUTION OF CRIMINAL ACTIONS
(Rule 110, Sec. 1)
A. By filing a COMPLAINT with the proper
officer:
 1. Where a Preliminary
Investigation is required pursuant to
Sec. 1 of Rule 112 (Rule 110, Sec. 1a)
 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)
 In case of summary
procedure, it is discretionary
upon the Prosecutor if he wants
to conduct a Preliminary
Investigation.
2. In Metro Manila and other
chartered cities outside Metro Manila,
unless otherwise provided in their
charters (Rule 110, Sec. 1b)
PROPER OFFICER
 person authorized to conduct the
requisite preliminary investigation
(Rule 112, Sec.2).
B. By filing a COMPLAINT/INFORMATION
with the MTC and MCTC:
1. Where Preliminary
Investigation is not required.
2. Outside Metro Manila and
not a chartered city.
3. In case of chartered city,
when charter allows it.
General Rule: The filing of criminal action
interrupts the running of the period of
prescription of the offenses charged (even if
the court where the complaint or information
is filed cannot try the case on the merits.
(Arambulo v. Lagui, 342 SCRA 740).
Exception: If otherwise provided by special
laws.
REMEDIES OF OFFENDED PARTY IF
PROSECUTOR REFUSES TO FILE
INFORMATION
1. File an action for mandamus, 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.
5. File criminal action against the
prosecutor.
6. File civil action for damages.
7. Secure appointment of another
prosecutor.
General Rule: Criminal prosecutions may
not be restrained by writs of prohibition or
injunction (Asutilla vs. PNB, 141 SCRA 40).
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 suits;
3. When there is a prejudicial question
which is subjudice;
4. When the acts of the officer are
without or in excess of authority;
5. When the prosecution is under an
invalid law, ordinance or regulation;
6. When double jeopardy is clearly
apparent;
7. When the court has no jurisdiction
over the offense;
8. When it is a case of persecution
rather than prosecution;
9. When the charges are manifestly
false and motivated by lust for
vengeance; and
10. When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied.
11. To prevent the threatened unlawful
arrest of petitioners. (Dominador vs.
Sandiganbayan, 328 SCRA 292)
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). arellano law
 b. Internal Revenue Officer for
 A formal accusation of violation of the NIRC
the type required by the statute cannot be c. Custom agents with respect to
waived and in its absence, there is nothing violations of the Tariff and Customs
for the court to act upon and the court Code
acquires no jurisdiction.
 While the information
not quashable if not brought in the name of An INFORMATION is:
the People of the Philippines, if the 1. an accusation in writing;
information is grossly deficient, the same 2. charging a person with an offense; and
may be quashed for failure to conform to the 3. subscribed by the prosecutor and filed
prescribed form. with the court. (Rule 110, Sec. 4)

A COMPLAINT is: (Rule 110, Sec. 3) INFORMATION COMPLAINT

1. A sworn written statement;
Always signed by the Subscribed by the
2. Charging a person with an offense; fiscal or authorized offended party, any
3. Subscribed by: prosecuting officer peace officer or other
a. The offended party; officer charged with
b. Any peace officer e.g. members of the enforcement of
the Constabulary, Police officers, the law violated (Rule
Agents of NBI, etc.; or 110, Sec. 3)
c. Other public officer charged with the Need not be under Sworn to by person
enforcement of the law violated e.g. oath signing it
Internal Revenue Officer for - reason: prosecuting
violation of the NLRC, custom officer filing it is
agents with respect to violations of charged with the
the Tariff and Customs Code. special duty in regard
thereto and is acting
 The want of an oath is a mere defect which does
under the special
not affect the substantial rights of the defendant responsibility of his
on the merits. It is not permissible to set aside a oath of office
judgment for such a defect (US vs. Bibal, 4 Phil. Always filed with the May be filed either
369). court with the fiscal’s office
or the court.
When a Sworn Written Complaint is
Required Persons Authorized to File Information
(Hernandez vs. Albano, 2 SCRA 607)
1. Provincial/City Prosecutor;
1. If the offense is one which cannot be
2. Chief State Prosecutor;
prosecuted de officio;
3. Ombudsman or his deputy; (Rule 112, Sec.
a. Adultery; 4, par. 3)
b. Concubinage; 4. Lawyer appointed by Sec. of Justice
c. Seduction; pursuant to Sec. 1696 of the Revised
d. Abduction or; Administrative Code, as amended.
e. Acts of lasciviousness;
f. As well as defamation consisting in WHO MUST PROSECUTE CRIMINAL
the imputation of any of the above ACTIONS (Rule 110, Sec. 5)
crimes (Art. 360 of the RPC, Title XI, Bk II) All criminal actions commenced by a
2. Is private in nature; or complaint or information shall be prosecuted
3. Where it pertains to those cases which under the direction and control of the
need to be endorsed by specific public prosecutor.
officers.
Examples:  Once a complaint/information is filed in court, any
a. The City Fiscal of Manila has no disposition of the case rests in its sound
authority to prosecute violations of discretion. Although the fiscal retains direction
and control of the prosecution of the criminal
the Anti-Dummy Law independently case, where it is already in court, he cannot
of the Anti-Dummy Board (Zobel vs. impose his opinion on the trial (Crespo vs. Mogul,
Concepcion, 5 SCRA 428). 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 v. CA,
212 SCRA 483).
Conditions for a Private Prosecutor to
Prosecute a Criminal Action:
1. The public prosecutor has a heavy work
schedule, or there is no public
prosecutor assigned in the province or
city;
2. The private prosecutor is authorized IN
WRITING by the Regional State
Prosecutor (RSP), Provincial or City
Prosecutor;
3. The authority of the private prosecutor
must be approved by the court;
4. The private prosecutor shall continue to
prosecute the case until the end of the
trial unless the authority is withdrawn or
otherwise revoked; and
5. 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 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)
 Compliance with this is a jurisdictional
requirement and not merely a formality (People
vs. Sunpongco, 163 SCRA 222).
 In complex crimes, where one of the component
offenses is a private crime and the other a public
offense, the fiscal may initiate the proceedings de
oficio (People vs. Orcullo, 46 O.G., Supp.11,238).
PROSECUTION OF THE CRIMES OF
ADULTERY AND CONCUBINAGE (Rule 110,
Sec. 5, Par. 2)
 Upon a complaint
filed by the offended spouse;
 The offended party must include, the
guilty parties, if both are alive;
 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:
1. Offended Party, even if a minor, unless
she is incompetent or incapable;
2. Parents;
3. Grandparents;
4. Guardian;
5. 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 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 complain 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.
 The ACQUITTAL or DEATH of one of the accused
in the crime of adultery does not bar the
prosecution of the other accused (People vs.
Topiño, 35 Phil. 901).
REQUIREMENTS IN SPECIAL LAWS
The prosecution for violation of special laws
shall be governed by the provisions thereof
(Rule 110, Sec. 5, Par. 6).
 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).
B. DESIGNATION OF THE OFFENSE
(Rule 110, Sec. 8)
Complaint or Information Shall State:
1. The designation of the offense given
by the statute;
 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).

A COMPLAINT OR INFORMATION IS  The facts alleged therein, and not its

SUFFICIENT IF IT STATES: (Rule 110, Sec. 6) title, determine the nature of the crime
1. The name of the accused (Rule 110, Sec. (People vs. Magdowa, 23 Phil. 512).
7);
2. The designation of the offense given by 2. The acts or omissions constituting
the statute (Rule 110, Sec. 8); the offense; and
3. The acts or omissions complained of 3. Qualifying and aggravating
constituting the offense (Rule 110, Sec. 8 & circumstances
9);
 Allegations prevail over the
designation of the offense in the
4. The name of the offended party (Rule information.
110, Sec. 12);  The qualifying and aggravating
5. The approximate date of the circumstances cannot be
commission of the offense (Rule 110, Sec. appreciated even if proved
11); and UNLESS alleged in the information.
6. The place where the offense was
committed (Rule 110, Sec. 10). C. CAUSE OF THE ACCUSATION (Rule
 When an offense is committed by more than 110, Sec. 9)
one person, all of them shall be included in 1. Acts or omissions complained of as
the complaint or information. constituting the offense; and
2. Qualifying and aggravating
A. NAME OF THE ACCUSED (Rule 110, Sec. circumstances.
7)
Complaint or Information Must State:  These must be stated in ordinary and
1. The name and surname of the concise language and not necessarily in
accused; or the language used in the statute but in
2. Any appellation or nickname by which terms sufficient:
he has been or is known. a. To enable a person of common
understanding to know what offense
 If his name cannot be ascertained, is being charged as well as its
he must be described under a qualifying and aggravating
fictitious name with a statement that circumstances; and
his true name is unknown. b. For the court to pronounce judgment.
 If the true name of the accused is  Defendant cannot
thereafter disclosed by him or be convicted of an offense of which he
appears in some other manner to has not been informed or for a crime
the court, such true name shall be higher than that alleged in the
inserted in the complaint or information.
information and record.
  Even if the Information filed did not allege
that the complainant was 9 years old, there
was substantial compliance with the
constitutional mandate that an accused be
informed of the nature of the charge against
him when the order issued by the
investigating judge, a copy of which was
attached in the record of the Preliminary
Investigation, clearly stated that the
complainant was 9 years old (People vs.
Villamor, 297 SCRA 262).
 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).
D. 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).
E. 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).
F. NAME OF THE OFFENDED PARTY
(Rule 110, Sec. 12)
The complaint or information must state:
1. The name and surname of the
person against whom or against
whose property the offense was
committed; or
2. Any appellation or nickname by
which such person has been or is
known.
 If there is no better way of
identifying him, he must be
described under a fictitious name.
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.
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
2. No need to aver that it is a juridical
person or that it is organized in
accordance with law.
DUPLICITY OF THE OFFENSE (Rule 110,
Sec. 13)
General Rule: A complaint or information
must charge only one offense.
Exceptions:
1. Complex crimes;
2. Special complex crimes;
3. When the other offense stated is
only an ingredient or essential element
of the real offense charged
4. Continuous crime or delito
continuado
5. Crimes susceptible of being
committed in various modes.
DUPLICITY IN CRIMINAL PLEADING is the
joinder of 2 or more distinct and separate
offenses in the same count of an indictment
or information.
 2. The court shall dismiss the original
 Duplicity in the charge is a ground for a complaint or information after filing of
motion to quash, but the failure to timely the new one.
interpose any objection on this ground  The court may require the witnesses to
constitutes waiver. give bail for their appearance at the trial.

AMENDMENT OR SUBSTITUTION OF Distinction Between Amendment and

THE INFORMATION OR COMPLAINT (Rule Substitution of Information/Complaint
110, Sec. 14)
Amendment Substitution
Rules on Amendment: May involve either Involves substantial
1. Before plea - formal and substantial formal or substantial change from the
amendments are allowed without leave changes. original charge.
of court. If made before plea Must be with leave
EXCEPTION: Amendment before plea, has been entered, it of court as the
which downgrades the nature of the can be effected original information
offense charged in or excludes any without leave of has to be
accused from the complaint or court. dismissed.
information, can be made only:
a) upon motion by the prosecutor; When only as to Another preliminary
b) with notice to the offended party; form, there is no investigation is
c) with leave of court need for another needed and the
preliminary accused has to
Note: In (b), the rule does not provide if investigation and the plead anew to the
consent of the offended party is necessary. retaking of the plea new information.
of the accused.
2. After plea and during trial – only
An amended Requires or
formal amendments, provided:
information refers to presupposes that
a) leave of court is obtained; and the same offense the new information
b) amendment is not prejudicial to the charged in the involves a different
rights of the accused original information offense which does
EXCEPTION: When a fact supervenes or to an offense not include or is not
which changes the nature of the crime which necessarily necessarily included
charged in the information or upgrades it
included in the in the original
to a higher crime, in which case,
original charge, charge, hence the
amendment as to substance may be
made but there is a need for another hence substantial accused cannot
arraignment of the accused for the amendments to the claim double
amended information. information would be jeopardy.
withdrawn the
RULE ON SUBSTITUTION: accused could invoke
double jeopardy.
May be made:
1. At any time before judgment; and
2. When mistake has been made in A Matter of Form
Substantial Matter in
charging the proper offense. a Complaint/Info
All that relates to the The recital of facts
mode, form or style of constituting the
Procedure: expressing the facts offense charged and
1. File a new one charging the proper involved, the choice the determination of
offense in accordance with Sec. 11, or arrangement of the jurisdiction of the
Rule 119 words, and other court. (Almeda v.
such particulars, Villaluz, 66 SCRA 38).
Limitations: without affecting the
a. The accused would not be placed in substantial validity or
double jeopardy sufficiency of the
b. The accused cannot be convicted of instrument or without
going to the merits.
the offense charged or of any other (Black’s Law
offense necessarily included therein. Dictionary)
 Petitioner is charged as a principal in the
case for murder. The addition of the phrase
“conspiring, confederating and helping one
another” does not change the nature of petitioner’s
participation as principal in the killing; it is a mere
formal amendment (Buhat vs. CA, December 17,
1996).
 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).
VARIANCE BETWEEN THE INDICTMENT
AND THE PROOF
1. When the offense proved is less serious
than, and is necessarily included in, the
offense charged, the defendant shall be
convicted of the offense proved.
2. When the offense proved is more
serious than and includes the offense
charged, the defendant shall be
convicted only of the offense charged.
3. When the offense proved is neither
included in nor does it include, the
offense charged and is different
therefrom, the court should dismiss the
action and order the filing of new
information charging the proper offense.
(Substitution)
Guide: “Always in favor of the accused.”
PLACE WHERE ACTION IS TO BE
INSTITUTED (Rule 110, Sec. 15)
Venue, in criminal cases, is:
1. Jurisdictional
2. Cannot be the subject of agreement
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:
1. Cases originally cognizable by the
Sandiganbayan, as its jurisdiction is
national in scope;
2. Libel cases which may be filed or
instituted at the election of the offended
party, subject to the objection of the
accused;
3. Continuing offenses;
4. Piracy, which is triable anywhere;
5. Extraterritorial crimes pursuant to Art. 2
of the RPC;
6. Offenses committed in a train, aircraft or
other vehicle while in the course of the
trip;
 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.
7. 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.
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.
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.
RULE 111
PROSECUTION OF CIVIL
ACTION
INSTITUTION OF CRIMINAL AND CIVIL
ACTIONS (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.
 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).
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:
1. B.P. 22 cases (Rule 110, Sec. 1, Par. b)
2. Cases cognizable by Sandiganbayan
(Sec. 4 of PD 1606, Sandiganbayan Act, as
amended by RA 8249)
3. Tax cases (Sec. 7, Par. b, No. 1, RA 9282, An
Act Expanding the Jurisdiction of CTA)
RULES ON FILING FEES OF CIVIL
ACTIONS DEEMED INSTITUTED
1. No filing fees are required for actual
damages, except in criminal actions for
B.P. 22
2. 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.
3. 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.
 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.
Rule Where the Civil Action Has Been
Filed Separately and Trial Thereof Has
Not Yet Commenced
It may be consolidated with the criminal
action upon application with the court trying
the latter case.
 Should be done before judgment on the
merits in the civil action.
 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.
 An independent civil action cannot be
consolidated with a criminal action. arellano
law
Rules on Civil Aspect in Cases Involving
Violation of B.P. 22
1. The corresponding civil action shall be
deemed instituted.
2. No reservation to file such civil action
separately shall be allowed.
3. 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.
4. 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.
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.
 Suspension shall last until final
judgment is rendered in the criminal
action.
Exceptions to the Rule:
1. Independent civil actions;
2. Prejudicial civil actions;
3. When the civil case is subsequently
consolidated with the criminal action;
 Done before judgment on the merits is
rendered in the civil action, upon motion
of the offended party.
 Not mandatory
 Evidence already adduced in the civil
action deemed automatically
reproduced in the criminal action (Rule
111, Sec.2, par.2)
4. Where the civil action does not arise
from the offense charged in the criminal
case
 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).
When ACQUITTAL IN A Criminal Action
BARS The Civil Action Arising Therefrom
1. The judgment of acquittal holds that the
accused did not commit the acts
imputed to him.
2. The accused was not guilty of criminal,
or even civil negligence.
When ACQUITTAL In Civil Case DOES
NOT BAR Civil 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 may arise
did not exist (Sapiera vs. CA, 314 SCRA 370).
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 arise 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.
EFFECT OF DEATH ON CIVIL ACTIONS
(Rule 111, Sec. 4)
If accused dies:
1. Before arraignment – the case shall be
dismissed without prejudice to any civil
action the offended party may file
against the estate of the deceased.
2. 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)
JUDGMENT IN CIVIL ACTION NOT A
BAR.
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)
SUSPENSION BY REASON OF
PREJUDICIAL QUESTION (Rule 111, Sec. 6)
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 case before the court
but the jurisdiction to try and resolve must
be lodged in another court or tribunal.
ELEMENTS OF PREJUDICIAL
QUESTION:
1. Previously instituted civil action involves
an issue similar or intimately related to
the issue raised in the subsequent
criminal action.
2. 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.
WHERE TO FILE PETITION FOR
SUSPENSION BY REASON OF
PREJUDICIAL QUESTION (Rule 111, Sec. 6)
1. During Preliminary Investigation – in
the office of the prosecutor or the court
conducting the preliminary investigation.
2. During Trial – in the same court trying
the criminal action at any time before
the prosecution rests.
 The doctrine of prejudicial question does not
apply where no civil but only administrative
case is involved.
RULE 112
PRELIMINARY
INVESTIGATION
PRELIMINARY INVESIGATION
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.
WHEN PRELIMINARY INVESTIGATION IS
REQUIRED
General Rule: A preliminary investigation is
required to be conducted 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.
Exception: Sec. 7, Rule 112 (upon inquest
proceedings, or affidavit of the offended party or
arresting officer or person in lawful warrantless
arrests)
Note: On cases governed by the Rules on
Summary Procedure, the prosecutor may not
conduct preliminary investigation anymore.
INQUEST – The determination of the
prosecutor whether to charge the accused
or not when there is a lawful warrantless
arrest.
Purposes of Preliminary Investigation:
1. 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;
2. To preserve the evidence and to keep
the witnesses within the State’s control;
3. To determine the amount of bail, if the
offense is bailable.
Preliminary Preliminary
Investigation Examination
Executive function. Judicial function.
Conducted by Conducted by the
prosecutor. judge.
 Objective: find Objective: to find File a complaint-affidavit
probable cause for whether or not he With all supporting documents and affidavits
indictment. should issue a 2 copies plus over and above number of
warrant of arrest. respondents
End Goal: Resolution. End Goal: Warrant of
Arrest.

NATURE OF RIGHT TO PRELIMINARY Office of the City Prosecutor

INVESTIGATION The case will be raffled among all the Asst.
 Not part of the due process clause of Prosecutors to determine who will conduct
the Constitution but is purely statutory. the preliminary investigation

However, if the law provides for

preliminary investigation and such right
is claimed by the accused, a denial Within 10 days after filing complaint-affidavit,
thereof is a denial of due process and the prosecutor shall issue a subpoena
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
Within 10 days
remanded for preliminary investigation. If respondent
from receipt of
complaint-affidavit, cannot be
 The right thereto can be invoked only the respondent will subpoenaed or if
when so established and granted by file a counter- subpoenaed but
law. affidavit and other does not submit
 Since it is a personal right, the same supporting his counter-
may be waived expressly or impliedly. If documents. affidavit within 10
waived, the fiscal may forthwith file the days
corresponding information with the
proper court.
 The absence of preliminary investigation
does not affect the jurisdiction of the Clarificatory
hearing
court or invalidate the information if no
(optional)
objection was raised by the accused
before entry of his plea.
 Merely inquisitorial; Not a trial of the
case on the merits. Resolution of the investigating prosecutor
 Can be conducted ex parte if the Only recommendatory to City prosecutor
respondent cannot be subpoenaed or Must include an Information
does not appear after due notice.
 Does not place the person against
whom it is taken in jeopardy.
City Prosecutor

Approve Disapprove
Resolution Resolution

PROCEDURE IN PRELIMINARY
INVESTIGATION (Rule 112, Sec. 3) File Information Information may
with court be dismissed
OFFICERS AUTHORIZED TO CONDUCT
PRELIMINARY INVESTIGATION:
1. Provincial or city prosecutors and their
assistants;
2. National and Regional State 1. Prepare the resolution and
prosecutors; and information;
3. Other officers as may be authorized by 2. Certify under oath in the information
law (e.g. COMELEC on criminal that:
violations of the election law, the office a. He, or as shown by the record,
of the Tanodbayan or its deputies in an authorized officer, has
cases cognizable by the personally examined the
Sandiganbayan, lawyers appointed as complainant and his witnesses;
special prosecutor under Sec. 1686, of b. That there is reasonable ground
the Revised Administrative Code) to believe that a crime has been
committed and that the accused
IMPORTANT: A.M. No. 05-8-26-SC is probably guilty thereof;
 removed the conduct of Preliminary c. That the accused was informed
Investigation from Judges of the First Level of the complaint and of the
Courts starting October 3, 2005 evidence submitted against him;
 MTC, MTCC, MeTC and MCTC Judges can d. That he (accused) was given an
continue with the preliminary investigation of opportunity to submit
pending cases, which should be terminated
controverting evidence.
not later than Dec. 31, 2005.
3. Within 5 days from his resolution,
 The Ombudsman is given primary jurisdiction forward the record of the case to
over cases cognizable by the Sandiganbayan. He the:
is authorized to take over at any stage, from any A. Provincial or City
investigating body, the investigation of such
cases; a power not given to investigative bodies Prosecutor; or
(DOJ vs. Liwag, 451 SCRA 83). arellano law B. Chief state Prosecutor, or
c. To the Ombudsman or his
Guidelines as to the Clarificatory deputy in cases of offenses
Hearing: cognizable by the
a. The hearing may be set only when Sandiganbayan in the exercise
there are facts and issues to be clarified of original jurisdiction.
from a party or a witness.
b. The parties can be present at the They shall act on the resolution
hearing but without the right to examine within 10 days from their receipt
or cross-examine. thereof and shall immediately inform
c. The parties may submit to the the parties of such action.
investigating officer questions which
may be asked to the party or witness B. If the investigating prosecutor finds
concerned. NO CAUSE to hold respondent for
d. The hearing shall be held within 10 trial - He shall recommend the dismissal
days from submission of the counter- of the complaint.
affidavits and other documents or from
the expiration of the period for their  A complaint or information may be
submission. dismissed by an investigating prosecutor
e. The hearing shall be terminated ONLY with the prior written authority or
within 5 days. approval of the provincial or city prosecutor;
f. Resolution, within 10 days after or chief state prosecutor, or the Ombudsman
or his deputy.
investigation by investigating officer.
 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 Ombudsman or his deputy
DUTIES OF THE INVESTIGATING on the ground that a probable cause exists,
PROSECUTOR (Rule 112, Sec. 4) The latter may:
A. If the investigating 1. by himself, file the information against
the respondent; OR
prosecutor finds CAUSE to hold the
2. direct another assistant prosecutor or
respondent for trial: state prosecutor to do so without
 conducting another preliminary
investigation.

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, In case of doubt
Jr., 365 SCRA 467).
on existence of
Judge may probable cause:
 The aggrieved party may appeal to the immediately judge may
Secretary of Justice within 15 days from dismiss case if  Order prosecutor
receipt of the resolution of the evidence on to present
prosecutor, or of the denial of a timely record clearly additional
motion for reconsideration/ fails to establish evidence within 5
probable cause days from notice;
reinvestigation.
and
 The Sec. of Justice may reverse the  Resolve issue
resolution and thereafter: w/in 30 days
a. Direct the fiscal concerned to file the from filing of
corresponding information without
conducting another preliminary
investigation; or
b. Dismiss or move for the dismissal of the If he finds probable cause, he
complaint or information (Marcelo, et al shall issue:
vs. CA, et al, July 5, 1993). 1. Warrant of arrest; or
2. Commitment order if
 When appeal shall not be given due accused was already
course: arrested pursuant to warrant
1. If an information has been filed issued
pursuant to the appealed resolution;
and 2. By the Municipal Trial Court.
2. The accused has already been  The procedure for the issuance of a
arraigned. warrant of arrest by the judge shall
be the same as that of the RTC.
 An appeal shall not bar the filing of the  However, without waiting for the
corresponding information, unless otherwise conclusion of the preliminary
directed by the Secretary. investigation, the judge may issue a
warrant of arrest if he finds after an
 In case appeal to the Sec. of Justice was examination in writing and under
denied and so with the motion for
reconsideration, a petition for certiorari with
oath of the complainant and his
the Court of Appeals on the ground of grave witnesses in the form of searching
abuse of discretion is the next remedy questions and answers, that a
(Filandamus Phrama, Inc. vs. CA, 426 SCRA probable cause exists and that there
460).
is a necessity of placing the
Appeal from the Resolution of the respondent under immediate
Ombudsman custody in order not to frustrate the
Involving: ends of justice.
A. Administrative and disciplinary cases –
with the CA
B. Criminal cases – with the SC
“SEARCHING QUESTIONS AND
WHEN WARRANT OF ARREST MAY ANSWERS” means taking into
ISSUE (Rule 112, Sec. 5, as amended by AM 05-8-
consideration the purpose of the preliminary
26-SC) investigation which is whether there is
1. By the Regional Trial Court. sufficient ground to engender a well-founded
belief that a crime has been committed and
that the respondent is probably guilty thereof
Within 10 days from the filing of the
complaint/information, the judge shall
personally evaluate:
1. The resolution of the prosecutor; and
2. Its supporting evidence
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
1. An apparent state of facts found to exist
upon a reasonable inquiry which would
induce a reasonably intelligent and
prudent man to believe that the accused
person had committed the crime
charged.
2. Presupposes a reasonable ground for
belief in the existence of facts
warranting the proceedings complained
of.
WHEN WARRANT OF ARREST NOT
NECESSARY
1. If the accused is already under
detention (Rule 112, Sec. 5[c], as amended by
AM 05-8-26-SC); or
2. 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
3. If the complaint or information was for
an offense penalized by fine only.
RULES IN LAWFUL WARRANTLESS
ARRESTS WHERE CRIME INVOLVED
REQUIRES PRELIMINARY
INVESTIGATION (Rule 112, Sec. 6, as amended
by AM 05-8-26-SC)
1. 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.
2. If there is no inquest prosecutor, the
complaint may be filed by the offended
party or a peace officer directly with the
proper court on the basis of the affidavit
of the offended party or arresting officer
or person.
OPTIONS OF ACCUSED LAWFULLY
ARRESTED WITHOUT WARRANT (Rule
112, Sec. 6, as amended by AM 05-8-26-SC)
1. Before complaint or information is
filed
a. 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
b. Notwithstanding the waiver, he may
apply for bail and the investigation
must be terminated within 15 days
from its inception.
2. 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.
RECORDS OF PRELIMINARY
INVESTIGATION
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)
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)
This refers to cases within the exclusive
original jurisdiction of the inferior courts but
the penalty for the offense is either
a. 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.
1. 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.
2. If filed with the Judge –
He shall act on the complaint/information
within 10 days from filing by personally
evaluating evidence or conducting searching
questions and answer
 answer for the commission of an offense
(Rule 113, Sec. 1).

Persons Immune from Arrest

1. Members of Congress, in all offenses
If he finds
probable cause, punishable by not more than 6 years
If he finds no imprisonment, while Congress is in
issue
probable cause session;
a. warrant of
arrest, or 2. Heads of State;
b. commitment 3. Diplomatic officers and their duly
order, or registered domestics.
Dismiss Require c. summons (if he
case additional finds that there
evidence is no need to
HOW ARREST IS MADE (Rule 113, Sec. 2)
place accused 1. By an actual restraint of the person to
under custody) be arrested; or
2. By his submission to the custody of the
If within 10 days person making the arrest.
from submission,
he still finds no  Violence or unnecessary force shall not be
probable cause, = used.
dismiss case  Restraint should not be greater than that is
necessary for the accused’s detention.

 Arrest is not necessary when the accused

REMEDIES ONCE COMPLAINT OR voluntarily appears after a complaint in a
INFORMATION IS FILED IN COURT criminal action is filed against him and gives
1. If from inquest, right to file a motion for bond for his appearance at any time he may
be called (People vs. Joson, 46 Phil 381).
Preliminary Investigation.
2. If from inquest but in reality no
 Remedy for improperly issued warrants:
Preliminary Investigation conducted Quashal of warrant or information (Ilagan vs.
(due to fraud, mistake, etc.), can still file Enrile, 139 SCRA 349). After implementation
motion for preliminary investigation and of warrant, remedy is suppression of
evidence.
show you were deprived of right of
preliminary investigation.
 Where the investigation comes from a
3. Warrant of arrest was issued (within 10 powerful group composed predominantly of
days from filing of complaint), whether ranking military officers and the designated
or not there was preliminary interrogation site is a military camp, the same
can be easily taken, not as strictly voluntary
investigation, file Motion for
invitation which purports to be, but as an
Determination of Probable Cause with authoritative command which one can only
Motion to Quash Warrant. defy at his peril. The requisites of custodial
4. File Petition for Review with Secretary of investigation are applicable even to a person
not formally arrested but merely “invited” for
Justice.
questioning (Sanchez vs. Demetriou, 227
5. File a Motion for Reinvestigation. SCRA 627).
 Cannot pursue motion for
reinvestigation where a motion for DUTY OF OFFICER EXECUTING THE
preliminary investigation was WARRANT (Rule 113, Sec. 3)
already made. 1. Arrest the accused; and
6. Rule 65. 2. Deliver him to the nearest police station
or jail without unnecessary delay

RULE 113 Additional Duties of Arresting Officer:

ARREST
ARREST is the taking of a person into
custody in order that he may be bound to
1. To inform person arrested of the reason
for the arrest;
2. Show warrant of arrest, if any;
3. Inform 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
1. Cause the execution within 10 days
from receipt
2. 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.
 Unlike a search warrant, the 10-day period
stated here is not the lifetime or period of
enforceability of the warrant of arrest.
 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.
MODES OF ARREST:
1. By virtue of a warrant;
2. Arrest WITHOUT a warrant under
exceptional circumstances as may be
provided by statute.
LAWFUL ARREST WITHOUT WARRANT
(Rule 113, Sec. 5)
A peace officer or a private person may,
without a warrant, arrest a person:
a. When, in his presence, the person
to be arrested has committed, is actually
committing, or is attempting to commit
an offense;
b. When an offense has just been
committed and he has probable cause
to believe based on personal knowledge
of facts or circumstances that the
person to be arrested has committed it;
Note: par. (a) and (b)- The person arrested
without a warrant shall be forthwith delivered
to the nearest police station or jail and shall
be proceeded against in accordance with
Sec. 7, Rule 112.
c. When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is
serving final judgment or is temporarily
confined while his case is pending, or
has escaped while being transferred
from one confinement to another;
d. 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 (Rule
114, Sec. 23[2]).
 In addition, arrest without warrant may also
be validly made:
1. Where the person who has been
lawfully arrested escapes or is rescued;
2. By the bondsman for the purpose of
surrendering the accused;
3. Where the accused attempts to leave
the country without the court’s
permission.
 A warrantless arrest is not a jurisdictional
defect.
 Objection to a warrantless arrest is waived
where the person arrested submits to
arraignment without objection.
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.
METHOD OF ARREST BY OFFICER BY
VIRTUE OF WARRANT (Rule 113, Sec. 7)
General Rule:
The arresting officer shall:
1. inform the person to be arrested of the
cause of the arrest and
2. 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.
 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.
METHOD OF ARREST 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:
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 officer has opportunity to so
inform him; OR
4. When the giving of such information will
imperil the arrest.
METHOD OF ARREST 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.
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)
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;
3. That the officer has been refused
admittance thereto.
RIGHT TO BREAK OUT FROM BUILDING
OR ENCLOSURE (Rule 113, Sec. 12)
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; and
2. When necessary to liberate himself.
ARREST AFTER ESCAPE OR RESCUE
(Rule 113, Sec. 13)
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.
 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.
Who is entitled to this right?
1. Any member of the Philippine bar; or
2. A relative of the person arrested, subject
to reasonable regulations.
Time of Visit
Any hour of the day or night.
RULE 114
BAIL
BAIL is the security given for the release of
a person in custody of the law, furnished by
him or a bondsman, to guarantee his
appearance before any court as required
under the conditions 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.
2. Appearance – The accused shall
appear before the proper court
whenever required by the court or these
Rules.
3. Trial in absentia – The failure of the
accused to appear at the trial without
 justification and despite due notice shall
be deemed a waiver of his right to be
present thereat. In such case, the trial
may proceed in absentia.
4. Duty of bondsman – The bondsman
shall surrender the accused to the court
for execution of the final judgment.
5. Original papers – These shall state
the:
a. Full name of the accused
b. Address of the accused
c. Amount of the undertaking
d. Conditions required
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).
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:
1. When ordered by the court; or
2. When he is admitted to bail.
RULES ON AVAILABILITY OF BAIL
1. 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).
2. 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.
 Whether a bail is a matter of right or
discretion, and even if no charge has yet
been filed in court against a suspect-
detainee, reasonable notice of hearing is
required to be given to the prosecutor, or at
least his recommendation must be sought
(Floresta vs. Ubiadas, 429 SCRA 270).
 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).
Note: AN EXTRADITEE IS NOT ENTITLED
TO BAIL.
 The constitutional provision on bail
as well as Sec. 4 of Rule114 applies
only when a person has been
arrested and detained for violation
of Philippine Criminal Laws. It does
not apply to extradition proceedings
because extradition courts do not
render judgment of conviction or
acquittal.
 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).
3. 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:
When bail may be denied or
cancelled:
a. Recidivism, quasi-recidivism or
habitual delinquency or
commission of crime aggravated
by the circumstances of
reiteration.
b. Previous escape from legal
confinement, evasion of sentence
or violation of the conditions of
bail without valid justification.
c. Commission of 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.
 c. If the decision of the RTC convicting
the accused change the nature of
the offense from non-bailable to
bailable.
Court That May Act Upon the
Application for Bail
1) 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”)
2) 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).
4. 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).
5. After judgment has become final, no bail
shall be allowed unless accused applied
for probation before commencing to
serve sentence or penalty and offense
within 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).
Note: Death Penalty cannot be imposed,
pursuant to RA 9346, signed by PGMA on
June 24, 2006.
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, 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.
AMOUNT OF BAIL; GUIDELINES (Rule 114,
Sec. 9)
 Excessive bail shall not be required.
 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 ability 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.
FORMS OF BAIL:
1. Corporate surety;
2. Property bond;
3. Cash deposit ;
4. Recognizance.
1. CORPORATE SURETY (Rule 114, Sec. 10)
Requisites:
1. Joint affidavit of the accused and
duly authorized officer of the
corporation;
2. Accreditation from the court where
the case is pending;
3. Accreditation from the Supreme
Court; and
4. Submission of picture of the
accused (not earlier than 6 months
prior)—at least 3 (Rule 114, Sec. 3, last
par.).
3.
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.
2. 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.
 It 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 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
1. The accused; or
2. Any person acting in his behalf.
To whom the cash is deposited
1. With the nearest Collector of
Internal Revenue; or
2. Provincial, City or Municipal
Treasurer
Amount of Deposit (Bail)
1. The amount of bail fixed by the
court; or
2. 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.
 circumstances provided in R.A.
The Rule thus treats a cash bail differently
6036. arellano law
from other bail bonds. A cash bond may be
posted either by the accused or by any Bail Bond Recognizance
person in his behalf. When a cash bail is
Is an obligation under Is an obligation of
allowed, the two parties to the transaction are
the State and the defendant. Unlike other bail seal given by the record, entered into
bonds, the money may then be used in the accused with one or before some court or
payment of that in which the State is more sureties, and magistrate duly
concerned – the fine and costs. The right of made payable to the authorized to take it,
the government is in the nature of a lien on proper officer with the with the condition to
the money deposited. (Esteban vs. condition to be void do some particular
Alhambra, G.R. No. 135012, Sept. 7, 2004). upon performance by act, the most usual
the accused of such condition in criminal
4. RECOGNIZANCE (Rule 114, Sec. 15) acts as he may cases being the
legally be required to appearance of the
Whenever allowed by the law or the perform accused for trial.
Rules, the court may release a Requires the Does not require the
person in custody on his own signature of the signature of the
recognizance or that of a responsible accused for its accused for its
person. validity. validity.

Instances When Accused May Be RELEASE WITHOUT BAIL (Rule 114,

Released On Recognizance
1. 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).
2. 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,
amended).
3. 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).
4. 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
Sec. 16)
1. When the accused has been in
custody for a period equal to or
more than the possible maximum
imprisonment prescribed for the
offense charged, without prejudice
to the continuation of the trial or the
proceedings on appeal.
2. When the maximum penalty to
which the accused may be
sentenced is destierro, but only after
30 days of preventive imprisonment.
BAIL, WHERE FILED (Rule 114, Sec. 17)
a. Bail in the amount fixed may be filed
with the:
1. Court where the case is
pending; or
2. In the absence or
as unavailability of the judge thereof,
with any, regional trial judge,
metropolitan trial judge or municipal
circuit trial judge in the province, city
or municipality.
Note: This is a special jurisdiction of the
MTC/MCTC.
b. Where the grant of bail is a matter of
discretion or the accused seeks to be
released on recognizance
 The application may only be fixed in the
court where the case is pending, whether
on preliminary investigation, trial or
appeal.

c. Any person in custody who is not yet
charged in court.
 May apply for bail with any court in the
province, city or municipality where he is
held.
 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.
FORFEITURE OF BOND (Rule 114, Sec. 21)
If the accused fails to appear in person as
required by the law or the Rules:
1. His bail shall be declared forfeited; and
2. His bondsmen are given 30 days within
which to produce his principal and to
show 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:
1. Produce the body of their principal or
give the reason for his non-production;
and
2. Explain why the accused did not appear
before the court when first required to
do so.
CANCELLATION OF BAIL (Rule 114, Sec. 22)
1) By application
Upon application of the bondsmen, with
due notice to the prosecutor, the bail
may be cancelled:
a. Upon surrender of the accused; or
b. Upon proof of the accused’s death.
2) Automatic
The bail shall be deemed automatically
cancelled upon:
a. Acquittal of the accused;
b. Dismissal of the case; or
c. Execution of the judgment of
conviction.
 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.
BAIL NOT A BAR TO OBJECTIONS ON
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
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.
BAIL IN EXTRADITION CASES (Govt. of
Hong Kong Special Administrative Region vs. Olalia,
Jr., 521 SCRA 49)
 While our extradition law does not provide for the
grant of bail an extradite, 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 granting/denying
bail is showing of clear and convincing evidence:
that which is lover than proof beyond reasonable
doubt but higher than proof of preponderance of
evidence.
 3) To be present and defend in person
RULE 115
RIGHTS OF THE ACCUSED
RIGHTS OF ACCUSED AT THE TRIAL
1) To be presumed innocent until the
contrary is proved beyond
reasonable doubt.
REASONABLE DOUBT – is that doubt
engendered by an investigation of the
whole proof and an inability, after such
investigation, to let the mind rest easy
upon the certainty of guilt.
NOTE: Absolute certainty of guilt is not
required, but moral certainty.
EQUIPOISE RULE – where the
evidence of the parties in a criminal
case are evenly balanced, the
constitutional presumption of innocence
should tilt in favor of the accused and
must be acquitted.
Exception to Presumption of
Innocence (Prima Facie Evidence of Guilt)
 Without infringing on the right of the
accused to be presumed innocent, the law
may properly provide that the existence of
certain set of facts, duly proved, may be
taken as prima facie evidence of the guilt
of a person (E.g. Art. 217, RPC).
 However, the statute established only a
prima facie presumption, thus giving the
accused opportunity to rebut it (People vs.
Mingoa, 92 Phil. 856)
2) To be informed of the nature and
cause of the accusation against him.
 This right is safeguarded by the
provisions on:
a. preliminary investigation
b. arraignment
c. requirements for sufficient
allegations in the information
d. bill of particulars and the rules
against duplicity (People vs. Geverola,
[CA], 66 O.G. 6043).
 Cannot be waived for reasons of
public policy.
and by counsel.
 Trial in absentia may be validly
conducted only if the accused has been
arraigned.
 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.
Requirements for 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).
RIGHT TO COUNSEL
 It is absolute and may be invoked at all
times even on appeal. (Telan vs. CA, G.R.
No. 95026, Oct 4, 1991)
 The right covers the period beginning
from custodial investigation, well into the
rendition of the judgment and even on
appeal. (People vs. Serzo, Jr., G.R. No.
118435, June 20, 1997) NOTE: While the
right to counsel is absolute, the right to
counsel de parte is not.
 It is not required, however that counsel
for the accused be present at the
promulgation of judgment of conviction
in order that such promulgation will be
valid.
 The right to counsel being a
fundamental one, the judge may not
hold trial of a criminal case in the
absence of the counsel for the accused
(Valdez vs. Aquilizan, 133 SCRA 150). Its
disregard will constitute a ground for
reversal of judgment of conviction
(People vs. Holgado, 85 Phil 752).
 When the accused appears without
counsel:
1. The court must inform the defendant
that it is his right to have an attorney
before being arraigned;
2. After giving him such information, the
court must ask him if he desires the
aid of an attorney;
 3. If he desires but is unable to employ
one, the court must assign an
attorney de oficio to defend him; and
 “Preference in the choice of
counsel” pertains more aptly and
specifically to a person under
investigation rather than an
accused in a criminal prosecution
(People vs. Larrañaga, July 21,
2005).
4. If the accused desires to procure an
attorney of his own, the court must
grant him reasonable time therefor.
 An application for continuance in
order to secure the services of
counsel is ordinarily addressed to
the discretion of the court and the
denial thereof is not ordinarily and
infringement of accused’s right to
counsel.
Constitutional guaranty to
representation does not mean that
accused may avoid trial by
neglecting or refusing to secure
assistance of counsel and by
refusing to participate in his trial
(People vs. Larrañaga, July 21,
2005).
 However, the accused is now permitted
to defend himself in person, upon
motion, where it sufficiently appears to
the court that he can properly protect his
rights by himself (Rule 115, Sec. 1[c]).
4) To testify as a witness in his own
behalf.
 If he testifies, he may be cross-
examined but only on matters covered
by his direct examination, unlike an
ordinary witness who can be cross-
examined as to any matter stated in the
direct examination or connected
therewith.
 His failure to testify is not taken against
him; but failure to produce evidence in
his behalf is considered against him.
5) To be exempt from being compelled
to be a witness against himself.
 This right may be waived by the failure
of the accused to invoke the privilege
after the incriminating question is asked
and before his answer.
 Covers testimonial compulsions only
and the production by the accused of
incriminating documents and articles
demanded from him; it does not cover
examination of his body as evidence
when it may be material.
 The accused may refuse altogether to
take the witness stand except where a
separate civil case is filed in which case
he has to take the stand therein but can
object to incriminating questions, where
he may be called as an adverse
witness.
Accused Ordinary Witness
Can refuse to either An ordinary witness
take the stand or can be compelled to
answer the question. take the stand and
can object only when
the incriminating
question is asked.
6) To confront and cross-examine the
witnesses against him at the trial.
 Either party may utilize as part of its
evidence the testimony of a witness who
is deceased, out of or can not with due
diligence be found in the Philippines,
unavailable or otherwise unable to
testify, given in another case or
proceeding, judicial or administrative,
involving the same parties and subject
matter, the adverse party having the
opportunity to cross-examine him.
 Main purpose is to secure the
opportunity of cross-examination and
the secondary purpose is to enable the
judge to observe the demeanor of
witnesses.
 The right of confrontation and cross-
examination may be waived expressly
or impliedly.
Confrontation in Criminal Law
The act of setting a witness face to
face with the accused so that the latter
may make any objection he has to the
witness, and the witness may identify
the accused, and this must take place in
the presence of the court having
jurisdiction to permit the privilege of
cross-examination.
7) To have compulsory process issued
to secure the attendance of
witnesses and production of other
evidence in his behalf.
 It is a necessary and legitimate court process
to issue a warrant of arrest to compel the
attendance of witnesses who have failed to
appear on the date of the trial despite due
notice (Beltran vs. Garcia, 41 SCRA 158).
8) To have speedy, impartial and public
trial.
 It means one that is conducted without
capricious, vexatious or oppressive
delays.
 May be waived by not objecting to
postponements or other delays of the
trial (Gunabe vs. Dir. Of Prisons, 77
Phil.993).
 There is no violation of the right when the
delay is imputable to the accused.
 It is an impartial trial when the judge is
not biased.
Note: Remedy if the judge is biased—
Motion to Inhibit.
TIME LIMIT FOR THE TRIAL OF
CRIMINAL CASES (RA No. 8493, Speedy
Trial Act of 1998”)
General Rule: Shall not exceed 180
days from the first day of trial.
Exceptions:
1. Those governed by the Rules on
Summary Procedure; or
2. Where the penalty prescribed by law
DOES NOT EXCEED 6 months
imprisonment or a fine of P1,000 or
both;
3. Those authorized by the Chief
Justice of the Supreme Court
 Where the prosecution, through repeated
motions for postponement causes delay to
supervene over the objections of the
accused, the court can dismiss the case
on motion of the accused and such
dismissal amounts to an acquittal.
TIME LIMIT BETWEEN FILING OF
INFORMATION AND ARRAIGNMENT
AND BETWEEN ARRAIGNMENT AND
TRIAL (Section 7, RA No. 8493, Speedy Trial
Act)
The arraignment of an accused shall
be held within 30 days from the filing of
the information, or from the date the
accused has appeared before the
justice, judge or court in which the
charge is pending, whichever date last
occurs.
Thereafter, where a plea of not
guilty is entered, the accused shall have
at least 15 days to prepare for trial. Trial
shall commence within 30 days from
arraignment as fixed by the court.
EXTENDED TIME LIMIT
Notwithstanding the provisions of Sec.
7, RA No. 8493, for the 1st 12-calendar-
month period following its effectivity, the
time limit with respect to the period from
arraignment to trial imposed by Sec. 7,
RA No. 8493, shall be 180 days. For the
2nd 12-month period the time limit shall
be 120 days, and for the 3rd 12-month
period the time limit with respect to the
period from arraignment to trial shall be
80 days.
Exclusion of the public from the
courtroom is valid when:
1. Evidence to be produced is
offensive to decency or public
morals; or
2. Upon motion of the accused;
3. Under the Child Witness Rule,
because the child might be
intimidated.
9) To appeal in all cases allowed and in
the manner prescribed by law.
 An appeal from a judgment of conviction
is not a matter of absolute right,
independently of constitutional or statutory
provisions allowing such appeal.
 But where the statute provides for the
right to appeal, such a right becomes a
part of the legal process and a denial
thereof would be transgressive of the due
process clause.
AN ACT DEFINING CERTAIN
RIGHTS OF PERSONS
ARRESTED, DETAINED OR
UNDER CUSTODIAL OF THE
ARRESTING, DETAINING AND
INVESTIGATING OFFICERS,
AND PROVIDING PENALTIES
FOR VIOLATIONS THEREOF
REPUBLIC ACT 7483
Rights Of Persons Arrested, Detained, Or
Under Custodial Investigation:
Duties of Public Officers:
a. Any person arrested detained or
under custodial investigation shall
AT ALL TIMES BE ASSISTED by
counsel.
b. Any public officer or employee, or
anyone acting under his order or his
 place, who arrests, detains or
investigates any person for the
commission of an offense shall:
 INFORM the latter, in a language
KNOWN TO AND UNDERSTOOD by
him, of his rights:
 To remain silent and
 To have competent and
independent counsel,
preferably of his own choice:
1. Who shall at all times be
allowed to confer
privately with the person
arrested, detained or
under custodial
investigation.
2. If such person cannot
afford the services of his
own counsel, he must be
provided with a  FAIILURE TO COMPLY:
competent and
independent counsel by
the investigating officer.
c. CUSTODIAL INVESTIGATION
REPORT
 Reduced to writing by the
investigating officer.
 Before such report is signed or
thumbmarked by the person
arrested, detained or under
custodial investigation
1. It shall be READ AND
ADEQUATELY EXPLAINED to
him by his counsel or
assisting counsel provided
by the investigating officer
2. In the language or dialect
known to such arrested or
detained person
3. EFFECT OF FAILURE TO
COMPLY:
The investigation report
shall be INADMISSIBLE as
evidence in any proceeding.
d. Any EXTRAJUDICIAL CONFESSION
made by a person arrested, detained
or under custodial investigation shall
be:
1. In writing; and
2. Signed by such person.
 in the presence of his
counsel or
 in the latter’s absence, upon
a VALID WAIVER, and in the
presence of:
i. any of the parents
ii. elder brothers and
sisters,
iii. his spouse,
iv. the municipal mayor,
v. the municipal judge,
vi. district school
supervisor, or
vii. priest or minister of the
gospel as chosen by
him;
 FAILURE TO
COMPLY:
Such extrajudicial
confession shall be
INADMISSIBLE as evidence in
any proceeding.
e. Any WAIVER by a person arrested or
detained under the provisions of Article
125 of the Revised Penal Code, or
under custodial investigation, shall be:
1. in writing and
2. signed by such person
3. in the presence of his counsel
The waiver shall be null and void
and of no effect.
f. Allowed VISITS by or conferences with:
1. Any member of his immediate
family; or
2. Any medical doctor or
3. Priest or religious minister chosen
by him of by any member of his
immediate family or by his counsel,
or
4. By any national non-governmental
organization duly accredited by the
Commission on Human Rights or
5. By any international non-
governmental organization duly
accredited by the Office of the
President
 “IMMEDIATE FAMILY” shall include:
i. his or her spouse;
ii. fiancé of fiancée;
iii. parent or child;
iv. brother or sister;
v. grandparent or grandchild;
vi. uncle or aunt;
vii. nephew or niece; and
viii. guardian or ward.
ASSISTING COUNSEL
Any Lawyer except:
1. Those directly affected by the case;
2. Those charged with conducting
preliminary investigation; or
3. Those charged with the prosecution of
crimes. arellano law
 RULE 116
ARRAIGNMENT AND
PLEA
ARRAIGNMENT is the formal mode of
implementing the constitutional right of the
accused to be informed of the nature of the
accusation against him (People vs. Pangilinan,
518 SCRA 368).
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
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;
3. By the judge or clerk of court;
4. By furnishing the accused with a copy of
the complaint or information;
5. By reading the complaint or information
in the language or dialect known to the
accused;
6. 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.
 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
A)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 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.
B) If Not Under Preventive Detention
(Rule 116, Sec. 1[g])
Within 30 days from the 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.
PLEA is the matter which the accused on
his arraignment alleges in answer to the
charge against him.
When a Plea of “NOT GUILTY” Should Be
Entered
1. When the accused so pleaded;
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.
When Accused Is Allowed To Plead Guilty
To A Lesser Offense Which Is Necessarily
Included In The Offense Charged (Rule 116,
Sec. 2)
1. At arraignment, the accused, with the
consent of the offended party and
prosecutor.
2. After arraignment but before trial, if the
accused withdraws his plea of not guilty.
3. 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])
DUTIES OF THE COURT WHEN PLEA OF
GUILTY TO A CAPITAL OFFENSE IS
MADE (Rule 116, Sec. 3)
1. Conduct a searching inquiry into the
voluntariness and full comprehension of
the consequences of his plea.
2. Require the prosecution to prove his
guilt and the precise degree of
culpability.
 The accused may present evidence
in his behalf.
 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.
WITHDRAWAL OF 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).
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 thereunder being void.
5. Court has no jurisdiction (p.392, Pamaran).
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 OFICIO 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:
1. A resident of the province; and
2. Of good repute for probity and
ability to defend the accused.
 RULE 117
BILL OF PARTICULARS (Rule 116, Sec. 9)
The Rules provide for this remedy to
MOTION TO QUASH
protect the accused from vague and
indefinite allegations in the complaint or MOTION TO QUASH is a special pleading
information. filed by the defendant before entering his
plea which hypothetically admits the truth of
Requirements: the facts alleged in the complaint or
1. The motion must be made before information at the same time that it sets up a
arraignment matter which, if duly proved, would preclude
2. It must specify the alleged defects further proceedings.
3. It must state the details desired  The court in resolving the motion cannot
consider facts contrary to those alleged
in the information or which do not
PRODUCTION OR INSPECTION OF appear on the face of the information,
MATERIAL EVIDENCE IN POSSESSION except those admitted by the
OF PROSECUTION (Rule 116, Sec. 10) prosecution.
Requirements:
1. On motion of the accused showing good Motion To Quash Motion To Dismiss
cause Under Rule 16
2. With notice to the parties
Governed by Rule Governed by Rule 16
3. Material evidence refer to written
117 of the Rules of of the Rules of Civil
statements, documents and things not Criminal Procedure Procedure
otherwise privileged in the possession
or under the control of the prosecution, Filed before the Should be filed within
defendant enters his the time for but prior
police or other law investigating
plea to the filing of the
agencies answer of the
defending party to the
 This is one of the modes of discovery in pleading asserting the
criminal cases for the accused only. claim against him.
GROUNDS FOR SUSPENSION OF Filed by the accused May be filed by any
ARRAIGNMENT (Rule 116, Sec. 11) defending party
against whom a claim
1. The accused appears to be suffering
is asserted in the
from an unsound mental condition which action.
effectively renders him unable to fully
understand the charge against him and If sustained, the court If granted, plaintiff
may order that may appeal or if
to plead intelligently thereto.
another complaint or subsequent case is
information. It is not a not barred, he may re-
 The court shall order his mental bar to another file the case;
examination and, if necessary, his prosecution for the An order granting a
confinement for such purpose. same offense unless motion to dismiss
the motion was based based on res judicata
2. There exists a prejudicial question. on grounds specified or where the claim or
3. A petition for review of the resolution of in sec. 3 (g) and (i) of demand has been
the prosecutor is pending at either the Rule 117. paid, waived,
Department of Justice, or the Office of abandoned, or
the President; provided, that the period otherwise
of suspension shall not exceed 60 days extinguished or where
counted from the filing of the petition the claim is
unenforceable under
with the reviewing office.
the Statute of Frauds
shall bar the refiling of
 The proper party must move for the the same action or
suspension based on the above grounds. 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 v. CA,
July, 5, 1993).
3. If granted – a final order; immediately
appealable, provided defendant will not
be placed in double jeopardy.
4. The defendant has been in former
jeopardy.
 Prescription of the offense as a ground for a
motion to quash is not waived as this is a
substantive right. arellano law
FORM AND CONTENTS (Rule 117, Sec. 2)
1. In writing;
2. Signed by the accused or his counsel;
3. Distinctly specify its factual and legal
grounds.
 The court shall consider no ground other
than those stated in the motion, except lack
of jurisdiction over the offense charged.

When certiorari may be entertained if GROUNDS FOR MOTION TO QUASH (Rule

MTQ is denied 117, Sec. 3)
1. When the action is necessary to 1. That the facts charged do not constitute
promote public welfare and public an offense;
policy; or 2. That the court trying the case has no
2. Where the case has attracted jurisdiction over the offense charged;
nationwide attention, making it 3. That the court trying the case has no
imperative to proceed with dispatch in jurisdiction over the person of the
the consideration thereof, or accused;
3. Where the appeal is found to be an 4. That the officer who filed the information
improper remedy because the order had no authority to do so;
which is sought to be reviewed is merely 5. That it does not conform substantially to
interlocutory or peremptory in character the prescribed form;
and the appeal therefrom can be 6. That more than one offense is charged
interposed only after final judgment and except when a single punishment for
may, therefore, be of no avail; various offenses is prescribed by law;
4. In the interest of more enlightened and 7. That the criminal action or liability has
substantial justice. been extinguished;
8. That it contains averments which, if true,
WHEN TO FILE would constitute a legal excuse or
General Rule: At any time before entering justification; and
his plea, the accused may move to quash 9. That the accused has been previously
the complaint or information. convicted or acquitted of the offense
 The motion to quash must be filed charged, or the case against him was
before the arraignment. Thereafter, no dismissed or otherwise terminated
motion to quash can be entertained by without this express consent.
the court.
 It may even be filed during the
preliminary investigation. Motion To Quash Demurrer To
Exceptions: A motion to quash can be filed Evidence
and entertained at any stage of the Filed before the Filed after the
proceeding when: (Miranda vs. Sandiganbayan, defendant enters his prosecution has
464 SCRA 165) plea. rested its case.
1. The complaint or information does not Does not go into the Based upon the
charge an offense. merits of the case but inadequacy of the
2. The court has no jurisdiction over the is rather anchored on evidence adduced by
offense charged. matters not directly the prosecution in
3. The offense or penalty has been concerned with the support of the
extinguished. question of guilt or accusation.
innocence of the
accused.
 Governed by Rule Governed by Sec. 23,
117. Rule 119.
AMENDMENT OF THE COMPLAINT OR
INFORMATION (Rule 117, Sec. 4)
If based on an alleged defect of the
complaint or information which can be cured
by amendment, the court shall order that an
amendment be made.
If it is based on the ground that the facts
charged do not constitute an offense, the
prosecution shall be given by the court an
opportunity to correct the defect by
amendment.
 The motion to quash shall be granted if:
1. The prosecution fails to make the
amendment; or
2. The complaint or information still
suffers from the same defect despite
the amendment
EFFECT OF SUSTAINING THE MOTION
TO QUASH (Rule 117, Sec. 5)
The court may order that another
complaint or information be filed except if
barred.
1. If the order is made, the accused, if in
custody, shall not be discharged unless
admitted to bail.
2. If no order is made or if having been
made, no new information is filed within
the time specified in the order or within
such further time as the court may allow
for good cause, the accused, if in
custody, shall be discharged unless he
is also in custody for another charge.
ORDER SUSTAINING THE MOTION TO
QUASH NOT A BAR TO ANOTHER
PROSECUTION (Rule 117, Sec. 6)
General Rule: An order sustaining the
motion to quash is not a bar to another
prosecution for the same offense.
Exception: When the motion was based on
following grounds:
1. That the criminal action or liability has
been extinguished.
2. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent.
An order denying a motion to quash is
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.
DOUBLE JEOPARDY (Rule 117, Sec. 7)
Means that when a person is charged
with an offense and the case is terminated
either by acquittal or conviction or in any
other manner without the consent of the
accused, the latter cannot again be charged
with the same or identical offense.
Requisites:
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.
 If the case is dismissed upon
defendant’s 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:
1. For the same offense.
2. For an attempt to commit the said
offense.
3. For a frustration of the said offense.
4. 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:
a. If predicated upon right to
speedy trial of the accused;
b. Due to a variance between
the proof and allegations;
c. In the strength of a
demurrer to evidence;
d. Insufficiency of evidence
Dismissal Acquittal
Does not decide the Always based on the
case on the merits or merits; that is, the
that the defendant is defendant is acquitted
not guilty. because the evidence
does not show
defendant’s guilt
beyond reasonable
doubt.
 If an act is punished by a law and an
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).
Test For Determining Whether the 2
Offenses are Identical
1. 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 prosecutor and of the
offended party except as provided
in section 1(f) of Rule 116
(improper affirmative plea to a
lesser offense)
2. 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.
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, April 1,
2003).
Provisional Dismissal becomes
PERMANENT for failure to revive the
case within:
a. 1 year – for offenses punishable by
imprisonment not exceeding 6 years.
b. 2 years – for offenses punishable by
imprisonment of more than 6 years.
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.
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:
1. When the information does not charge
an offense;
2. Lack of jurisdiction of the court;
3. Extinction of the offense or penalty, and;
4. Double jeopardy.
 RULE 118
PRE-TRIAL
PURPOSE: 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).
PRE-TRIAL IS MANDATORY (Rule 118, Sec.
1)
In all criminal cases cognizable by the:
1. Sandiganbayan;
2. Regional Trial Court;
3. Metropolitan Trial Court;
4. Municipal Trial Court in Cities;
5. Municipal Trial Court;
6. Municipal Circuit Trial Court.
Period for Court to Order Pre-Trial
Conference
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.
Matters to Be Considered During Pre-
Trial
1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of
the parties;
4. Waiver of objections to admissibility of
evidence;
5. Modification of the order of trial if the
accused admits the charge but
interposes a lawful defense;
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case.
 Agreements covering these matters shall be
approved by the court.
 Plea Bargaining- the process whereby the
accused and the prosecutor in a criminal
case work out a mutually satisfactory
disposition of the case subject to court
approval.
PRE-TRIAL AGREEMENT AS EVIDENCE
AGAINST THE ACCUSED (Rule 118, Sec. 2)
Requisites:
1. Reduced in writing; and
2. 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).
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.
Pre-Trial Order- An order issued by the
court after the pre-trial conference.
Effects of Pre-Trial Order
1. Binds the parties;
2. Limits the trial to matters not disposed
of; and
3. Controls the course of the action during
the trial, unless modified by the court to
prevent manifest injustice.
RULE 119
TRIAL
TRIAL 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).
 Trial shall commence within 30 days
from receipt of the pretrial order
 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.
POSTPONEMENT ON ACCOUNT OF THE
ABSENCE OF A WITNESS
Requisites:
1. That the witness is material and appears
to the court to be so.
2. That the party who applies has not been
guilty of neglect.
3. That the witnesses can be had at the
time to which the trial is deferred and
incidentally
4. That no similar evidence could be
obtained (US vs. Ramirez, 39 Phil. 783).
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:
1. Mandamus to compel a dismissal of the
information.
2. Habeas corpus to obtain his freedom, if
he is restrained of his liberty.
3. Adhere faithfully to the session hours
prescribed by laws.
4. Maintain full control of the proceedings.
EXCLUSIONS TO THE COMPUTATION OF
TIME FOR TRIAL TO COMMENCE (Rule
119, Sec. 3)
1. Proceedings concerning the accused
(e.g. physical and mental examination,
prejudicial question);
2. Absence or unavailability or essential
witness;
3. Mental incompetence or physical
inability of the accused;
4. Dismissal of information for the filing of
another charge against the accused for
the same offense;
5. Accused is joined for trial with co-
accused over whom the court has not
acquired jurisdiction;
6. Continuance.
REMEDY WHERE ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE TIME
LIMIT (Rule 118, Sec. 9)
 The information may be dismissed on
motion of the accused on the ground of
denial of his right to speedy trial.
 Dismissal shall constitute double
jeopardy.
 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 An adjudication on
be brought on the the merits, the final
same 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)
ORDER OF TRIAL (Rule 119, Sec. 11) Accused may have witnesses examined
1. The prosecution shall present evidence conditionally in his behalf before trial upon
to prove the charge and, in the proper motion with notice to all other parties.
case, the civil liability.
2. The accused may present evidence to The motion must state:
prove his defense and damages, if any, 1. Name and residence of witness;
arising from the issuance of a 2. Substance of testimony;
provisional remedy in the case. 3. Witness is sick or infirm as to afford
3. The prosecution and the defense may, reasonable ground to believe that he will
in that order, present rebuttal and sur- not be able to attend the trial or resides
rebuttal evidence unless the court, in more than 100 km from the place of trial
furtherance of justice, permits them to and has no means to attend the same,
present additional evidence bearing or other similar circumstances exist that
upon the main issue. would make him unavailable or prevent
4. Upon admission of the evidence of the him from attending trial.
parties, the case shall be deemed  The motion shall be supported by
submitted for decision unless the court an affidavit and such other evidence as the
directs them to argue orally or to submit court may require.
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 EXAMINATION OF DEFENSE WITNESS
modified. (Rule 119, Sec. 13)
Modes of Discovery Application for
 A departure from the order of the under the Civil examination of
trial is not reversible as where it was Procedure witness under the
agreed upon or not seasonably objected (Rules 24) Rules of Criminal
to, but not where the change in the order Procedure (Rule
of the trial was timely objected by the 119, Sec. 12)
defense. Rule 24 applies in a The procedure set
suppletory character forth must be
 Where the order of the trial set in all matters not complied with strictly
forth under this section was not followed specifically touched
by the court to the extent of denying the on by Sec. 12, Rule
prosecution an opportunity to present its 119 and the
evidence, the trial is a nullity (People vs. preceding sections.
Balisacan, 17 SCRA 1119). The taking of The conditional
depositions under examination of a
REVERSE TRIAL Rule 24 is taken for defense witness
the preservation of a under Sec.12 and 13,
When the accused admits the act or
material witness’ Rule 119 are taken for
omission charged in the complaint or testimony. the preservation also
information but interposes a lawful defense, of a material witness’
the trial court may allow the accused to testimony.
present his evidence and thereafter give the
prosecution the opportunity to present his If the court is satisfied that the
rebuttal evidence. examination of witness is necessary as
 Refusal of the court to reverse the order provided in Sec 4, an order directing that the
of trial upon demand of the accused who witness be examined shall be made and a
pleads self-defense as a defense is NOT
a reversible error (People vs. Gutierrez, 302
copy served on the fiscal.
SCRA 643).
The examination shall be taken before
APPLICATION FOR EXAMINATION OF any judge or, if not practicable, before any
WITNESS FOR ACCUSED BEFORE TRIAL member of the Bar in good standing so
(Rule 119, Sec. 12) designated in the order.
 The examination shall proceed
notwithstanding the absence of the
prosecutor provided he was duly notified of
the hearing.
 A written record of the testimony shall be
taken.
BAIL TO SECURE APPEARANCE OF
MATERIAL WITNESS (Rule 119, Sec. 14)
Requisites:
1. Court is satisfied, upon proof or oath,
that a material witness will not testify
when required;
2. Motion by either party;
3. 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 PROTECTION PROGRAM
1. 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.
2. To avoid the commission of a crime.
3. To take all necessary precautions to
avoid detection by others of the facts
concerning the protection provided him.
4. To comply with legal obligations and civil
judgment against him.
5. To cooperate with respect to all
reasonable requests of officers and
employees.
6. To regularly inform the appropriate
program official of his current activities
and address. arellano law
7.
EXAMINATION OF WITNESS FOR THE
PROSECUTION (Rule 119, Sec. 15)
A witness may be conditionally examined
when s/he:
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)
1. Joint trial – if jointly charged.
2. 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 granted, the
testimony of one accused imputing the
crime to his co-accused is not
admissible against the latter had the
opportunity for cross-examination.
DISCHARGE OF ACCUSED TO BE STATE
WITNESS (Rule 119, Sec. 17)
Motion to discharge should be made by
the prosecution before resting its case.
Requisites for Discharge:
1. Absolute necessity for testimony
2. No other direct evidence available for
the prosecution
3. Testimony can be substantially
corroborated in its material points
4. Accused not the most guilty
5. Accused has never been convicted of
any offense involving moral turpitude
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.
EFFECTS OF MOTION TO DISCHARGE
(Rule 119, Sec. 18)
1. 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.
2. 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.
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.
The accused shall not be discharged if there
appears a good cause to detain him.
 Apparently, to raise the defense of double
jeopardy, three requisites must be present:
1. A first jeopardy must have attached
prior to the second;
2. The first jeopardy must have been
validly terminated; and
3. 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 arraignment,
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:
1. When evidence to be presented is
offensive to decency or public morals; or
2. On motion of accused.
3. Under the Child Witness Rule, because
the child might be intimidated.
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.
DEMURRER TO EVIDENCE (Rule 119, Sec.
23)
Ground: Insufficiency of evidence.
When/ How Dismissed:
1. On the court’s own initiative after giving
the prosecution the opportunity to be
heard; or
2. Upon demurrer to evidence filed by the
accused with or without leave of court.
Motion for leave of court to file demurrer RULE 120
to evidence:
1. Shall specifically state its grounds;
JUDGMENT
2. Shall be filed within a non-extendible
period of 5 days after prosecution rests JUDGMENT is the adjudication by the court
its case. that the accused is guilty or not guilty of the
offense charged and the imposition of the
 The prosecution may oppose the motion proper penalty and civil liability provided for
within a non-extendible period of 5 days from by law. (Rule 120, Sec. 1)
receipt.
 It is not necessary that the judge who tried
Effects of Denial of Demurrer to the case be the same judicial officer to
Evidence: decide it. It is sufficient that he be apprised of
1. a. If filed with leave of court – accused the evidence already presented by a reading
may adduce evidence in his defense. of the transcript of the testimonies already
b. If filed without leave of court – introduced, in the same manner as appellate
courts review evidence on appeal.
accused shall be deemed to have
waived his right to present evidence
Form of Judgment:
and submits the case for judgment,
1. Written;
based on prosecution’s evidence.
2. In the official language;
2. Not reviewable by appeal or certiorari
3. Personally and directly prepared by the
before judgment.
judge;
4. Signed by the judge;
Effects of Granting Demurrer to
5. With a clear and distinct statement of
Evidence:
the fact and the law on which it is based.
1. Dismissal, amounting to acquittal.
2. Not appealable.  If judgment is not put in writing, the remedy
is to file a petition for mandamus to compel
Demurrer in Demurrer in Civil the judge to put in writing the decision of the
Criminal Case Cases court.
In case of denial
In case of denial, CONTENTS OF JUDGMENT OF
accused waives his
accused may present CONVICTION (Rule 120, Sec. 2)
right to present
evidence even if no 1. The legal qualification of the offense
evidence if leave of
leave of court was
court was not
secured.
constituted by the acts committed by the
obtained. accused and the aggravating and
Order sustaining Plaintiff can appeal mitigating circumstances attending its
demurrer is not from order sustaining commission.
appealable. demurrer. 2. The participation of the accused,
whether as principal, accomplice or
REOPENING (Rule 119, Sec. 24) accessory.
Rules: 3. The penalty imposed upon the accused.
1. Must be made before finality of 4. The civil liability or damages caused by
judgment of conviction the wrongful act, unless civil action has
2. Purpose – to avoid a miscarriage of been reserved or waived.
justice
3. Proceedings must terminate within 30 CONTENTS OF JUDGMENT OF
days from order granting it ACQUITTAL (Rule 120, Sec. 2)
4. Motu proprio by the judge or upon 1. a. That evidence of the prosecution
motion, with hearing in either case. absolutely failed to prove the guilt of the
accused; or
b. That the evidence merely failed to
prove his guilt beyond reasonable doubt
2. That the act or omission from which the
civil liability might arise:
a) did not exist; or
 b) 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
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.
 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).
PROMULGATION OF JUDGMENT – 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.
PROMULGATION 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.
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
1. The judgment is recorded in the criminal
docket; and
2. 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.
MODIFICATION OF JUDGMENT.
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.
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.
 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.
RULE 121
NEW TRIAL OR
RECONSIDERATION
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.
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.
GROUNDS FOR NEW TRIAL (Rule 121, Sec.
2)
1. Errors of law or irregularities committed
during the trial prejudicial to the
substantial right of the accused.
2. New and material evidence discovered.
Requisites:
a. That the evidence was discovered
after trial;
 b. That such evidence could not have 5. Notice of the motion for new trial or
been discovered and produced at the reconsideration shall be given to the
trial even with the exercise of fiscal.
reasonable diligence;
c. That it is material not merely  While the rule requires that an affidavit
cumulative, corroborative or of merits be attached to support a
impeaching; motion for new trial based on newly
d. The evidence is of such a weight that discovered evidence, yet the defect of
lack of it may be cured by testimony
it would probably change the under oath of the defendant at the
judgment if admitted. hearing of the motion (Paredes v. Borja, 3
SCRA 495).
 Evidence is considered material if there is
reasonable likelihood that the testimony or
evidence could have produced a different
EFFECTS OF GRANTING A NEW TRIAL
result and the accused would have been OR RECONSIDERATION (Rule 121, Sec. 6)
acquitted (Tan Ang Bun vs. CA, 182 SCRA 1. When a new trial is granted on the
238). ground of:
a. Errors of law or irregularities
GROUNDS FOR RECONSIDERATION (Rule committed during the trial – all
121, Sec. 3) proceedings and evidence not
1. Errors of law in the judgment; affected by the commission of such
2. Errors of fact in the judgment. errors and irregularities shall stand,
BUT those affected thereby shall be
Civil Action Criminal Action set aside and taken anew.
New Trial The court may, in the interest of
justice, allow the introduction of
1. FAME; 1. Errors of law or
irregularities additional evidence.
2. Newly
committed during trial; b. Newly discovered evidence –
Discovered
Evidence. 2. Newly Discovered the evidence already taken shall
Evidence. stand, and the newly discovered and
such other evidence as the court
Civil Action Criminal Action
may, in the interest of justice, allow to
Reconsideration be introduced, shall be taken and
1. Award of 1. Err considered together with the
excessive ors of law in the evidence already in the record
damages; judgment; 2. In all cases, when the court grants new
2. Insufficiency of 2. Err trial or reconsideration, the original
evidence; ors of fact in the judgment shall be set aside and a new
3. Decision or final judgment. judgment rendered accordingly.
order is contrary to
law.  The effect of the granting of a new trial is not
to acquit the accused of the crime of which
REQUISITES FOR A MOTION FOR NEW the judgment finds him guilty, but precisely to
TRIAL OR RECONSIDERATION (Rule 121, set aside said judgment so that the case
Sec. 4) may be tried de novo as if no trial had been
1. It must be in writing. conducted before.
2. It must be filed with the court.
 Unlike the rule in Civil Cases, the remedy of
3. It must state the grounds on which it is the aggrieved party being appeal in due
based. time, an order granting a new trial rendered
4. If the motion for new trial is based on in Criminal Cases is also interlocutory BUT is
newly discovered evidence, it must be controllable by certiorari or prohibition at the
supported by the affidavits of the instance of the prosecution.
witness by whom such evidence is
expected to be given, or duly New Trial or New Trial or
authenticated copies of documents Reconsideration Reconsideration
which it is proposed to introduce in under Rule 37 under Rule 121
evidence. Governed by the Governed by the
 Rules of Civil Rules of Criminal Interlocutory Order – does not dispose of a
Procedure Procedure case completely, but leaves something more
On motion of the On motion of the to be done on the merits.
aggrieved party accused or at the
court’s instance Instances When Appeal Does Not Put the
Within the period for Anytime before a
Accused in Double Jeopardy
taking an appeal judgment of 1. If the dismissal is made upon motion, or
conviction becomes with the express consent of the
final accused;
Grounds for new trial: Grounds for new trial:
2. If the dismissal is not an acquittal or
(a) fraud, accident, (a) errors or based upon consideration of the
mistake or excusable irregularities evidence or of the merits of the case;
negligence (FAME) prejudicial to the 3. If the question to be passed upon by the
and (b) newly substantial rights of appellate court is purely legal so that the
discovered evidence the accused have case should be remanded to the court of
been committed origin for it to determine the guilt or
during trial and (b) innocence of the accused.
new and material
evidence has been
General Rule: A private prosecutor in a
discovered
criminal case has no authority to act for
Grounds for Errors of law or fact in the People of the Philippines before a
reconsideration: judgment
court on appeal. It is the government’s
Damages awarded
are excessive, that counsel, the SolGen, who appears in
the evidence is criminal cases or their incidents before
insufficient to justify the SC. At the very least, the Provincial
the decision or final fiscal himself, with the conformity of the
order or that the Solicitor General shall act for the People
decision or final order of the Philippines.
is contrary to law Exception: The civil award in a criminal
case may be appealed by the private
prosecutor on behalf of the offended
party or his successors. arellano law
RULE 122
WHERE APPEAL MAY BE TAKEN (Rule 122,
APPEAL Sec. 2)
1. RTC – In cases decided by the MeTC,
WHO MAY APPEAL (Rule 122, Sec. 1) MTCC, MTC, MCTC,
Any party may appeal from judgment or final 2. CA or SC – decisions by the RTC, in the
order, unless the accused will be placed in proper cases provided by law
double jeopardy. 3. SC – in cases decided by the CA.

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.
HOW APPEAL TAKEN (Rule 122, Sec. 3)
1. 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.
2. 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.
3. 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.
4. Automatic review by the CA –
a. Where the RTC imposed the death
penalty;
b. Notice of appeal is not necessary.
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)
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)
1. 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.
2. 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.
3. 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.
4. 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.
EFFECT OF APPEAL BY ANY OF
SEVERAL ACCUSED (Rule 122, Sec. 11)
1. 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.
2. The appeal of the offended party from
the civil aspect shall not affect the
criminal aspect of the judgment or order
appealed from.
3. Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party. (People vs. Mateo, G.R. Nos.
147678-87, July 7, 2004)
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.
APPOINTMENT OF COUNSEL DE OFICIO
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:
1. 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.
2. To transmit with the record on a form to
be prepared by the clerk of court of the
appellate court, a certificate of
compliance with this duty and of the
response of the appellate to his inquiry.
RULE 123
PROCEDURE IN THE
MUNICIPAL TRIAL
COURTS
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.
RULE 124
PROCEDURE IN THE
COURT OF APPEALS
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)
1. Appellant fails to file his brief within the
time prescribed by this Rule, except
where the appellant is represented by a
counsel de officio.
2. Appellant escapes from prison or
confinement,
3. Appellant jumps bail; or
4. Appellant flees to a foreign country
during the pendency of the appeal.
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)
1. Try cases and conduct hearings;
2. Receive evidence;
3. Perform all acts necessary to resolve
factual issues raised in cases falling
under its original and appellate
jurisdiction;
4. 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 –
a. Render judgment; and
b. 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.
RULE 125
PROCEDURE IN THE
SUPREME COURT
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)
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.
RULE 126
SEARCH AND SEIZURE
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.
COURT WHERE APPLICATION FOR
SEARCH WARRANT SHALL BE 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.
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)
1. The warrant must be issued upon
probable cause;
2. Probable cause must be determined
personally by the judge;
3. The judge must have personally
examined, under oath and affirmation,
and in the form of searching questions
and answers, the applicant and his
witnesses;
4. The warrant must particularly describe
the place to be searched and the things
to be seized which may be anywhere in
the Philippines;
5. The warrant must be issued for one
specific purpose or in connection with
one specific offense.
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.
“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.
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.
EXAMINATION OF COMPLAINANT;
RECORD (Rule 126, Sec. 5)
1. Before issuing the warrant;
2. The judge must personally examine in
the form of searching questions and
answers the complainant and the
witnesses he may produce;
3. In writing and under oath;
4. On facts personally known to them; and
5. Attach to the record their sworn
statements, together with the affidavits
submitted.
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 substantially in the form
prescribed by these Rules.
Knock and Announce Principle
Generally, officers implementing a search
warrant must:
a. announce their presence,
b. identify themselves to the accused and
to persons who rightfully have
possession of the premises to be
searched, and
c. 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)
Remedies to an Unlawful Search
1. A motion to quash the search warrant;
2. A motion to suppress as evidence the
objects illegally taken;
3. Where the search warrant is a patent
nullity, certiorari lies to nullify the same;
4. Replevin, if the objects are legally
possessed.
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:
1. Give a detailed receipt for the same to
the lawful occupant of the premises in
whose presence the search and seizure
were made, or
2. 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:
1. Summon the person to whom the
warrant was issued; and
2. Require him to explain why no return
was made. arellano law
IF THE RETURN HAS BEEN MADE, the
judge shall:
1. Ascertain whether Section 11 of this
Rule has been complied with; and
2. 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 following day if
not beyond the 10-day period.
SEARCH INCIDENT TO LAWFUL ARREST
(Rule 126, Sec. 13)
A person lawfully arrested may, without
search warrant, be searched:
1. For dangerous weapons; or
2. 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.
When a search may be validly conducted
without a search warrant:
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 v. Rodriguez, G.R. No. 95902, February 4,
1992).
7. 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:
a. A prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
b. The evidence was inadvertently
discovered by the police who have the right
to be where they are;
c. The evidence must be immediately
apparent;
d. 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.
IN WHAT COURT MAY A MOTION TO
QUASH BE FILED (Rule 126, Sec. 14)
1. Before the court that issued the warrant
2. 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;
3. 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.
RULE 127
PROVISIONAL REMEDIES
IN CRIMINAL CASES
AVAILABILITY OF PROVISIONAL
REMEDIES (Rule 127, Sec. 1)
 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.
 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: see Sec. 6,

Rule 61, 1997 Rules of Civil Procedure.

EVIDENCE
EVIDENCE 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)
RULE 128
GENERAL PROVISIONS
Evidence Distinguished From
Proof
EVIDENCE PROOF
The MEDIUM / EFFECT and
MEANS of proving or RESULT of evidence.
disproving a fact.  Establishment of a
fact by evidence.
 The degree and
quantity of evidence
that produces
conviction.
Applicability Of Rules Of Evidence
 The rules apply only to judicial
proceedings. (Rule 128, Sec. 1)
 The Rules of Court shall not apply to
election cases, land registration,
cadastral, naturalization and insolvency
proceedings, and other cases, except by
analogy or in a suppletory character and
whenever practicable and convenient.
(Rule 1, Sec. 4)
 The rule on formal offer of
evidence is not applicable to
a case involving a petition
for naturalization. (Ong Chia
vs. Republic, 328 SCRA 749)
KINDS OF EVIDENCE:
A. According to its ABILITY TO
ESTABLISH THE FACT IN DISPUTE
1. Direct Evidence is evidence which
proves a fact in dispute without the
aid of any inference or presumption.
2. Circumstantial/Indirect Evidence
is proof of facts from which, taken
collectively, the existence of the
particular fact in dispute may be
2010 REMEDIAL LAW
inferred as a necessary or probable
consequence.
 In appreciating circumstantial evidence,
the facts must establish such certainty of
guilt of the accused as to convince the
judgment beyond reasonable doubt that
the accused is the one who committed the
offense. (People vs. Ador, 432 SCRA 1)
B. According to WEIGHT AND
ACCEPTABILITY
1. Primary/Best Evidence is that
which most certainty exhibits the
fact in question.
2. Secondary Evidence is that which
is inferior to primary/best evidence
and permitted by law only when the
better evidence is not available.
C. According to DEGREE OF ITS VALUE
IN ESTABLISHING A DISPUTED FACT
1. Corroborative Evidence - that
which tends to confirm, validate or
strengthen evidence already
presented. It may be of the same
kind as that already proffered or
may also be of a different type from
that previously offered.
 The marked money used in the buy bust
operation is not indispensable to drug
cases, it is merely corroborative
evidence. (People vs. Domingcil, 419
SCRA 291)
2. Cumulative Evidence - additional
evidence of the same kind and
character that tends to prove the
same proposition.
3. Prima Facie Evidence - that which
is sufficient to maintain proof of a
particular fact until contradicted or
overcome by other evidence.
4. Conclusive Evidence - that which
is incontrovertible.
D. According to its NATURE / FORM
1. Object Evidence (Real / Physical)
is that which is addressed to the
senses of the court, as where the
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objects are presented for the
inspection of the court. Capable of
being exhibited to, examined or
viewed by the court. Referred to as
Evidence by Autoptic Proference.
2. Documentary Evidence is
evidence which consists of writings,
words, numbers, figures, symbols or
other modes of written expression
offered as Proof of their Contents.
3. Testimonial/Oral Evidence is the
testimony of man, which may be
oral, or written.
E. According to its QUALITY
1. Relevant Evidence is evidence
which tends in any reasonable
degree to establish the probability or
improbability of the fact in issue. It
has a rational probative value.
2. Material Evidence is one that has
rational connection to the fact to be
proved.
 The terms “relevant” and “material”
are practically the same. They are
used interchangeably by the
Supreme Court.
 To illustrate: In proving the fact of
death, a love letter may be relevant
but not material.
 Materiality of evidence is NOT
NECESSARY for admissibility
3. Competent Evidence is evidence
which is not excluded by the law or
by the Rules of Court.
 E.g. A secondary evidence
(photocopy) is incompetent in the
existence of best evidence
(original).
F. OTHER TYPES OF EVIDENCE
1. Credible Evidence if it is not only
admissible evidence but also
believable and used by the court in
deciding a case.
2. Expert Evidence is testimony of a
witness requiring a special
knowledge, skill, experience or
training which he is shown to
possess.
3. Collateral Facts are matters other
than facts in issue and which are
offered as a basis merely for
inference as to the existence or non-
existence of the facts in issue.
4. Rebuttal Evidence is evidence
which is given to explain, repel,
2010 REMEDIAL LAW
counteract or disprove facts given in
evidence by the adverse party.
5. Positive Evidence is when a
witness affirms that a fact did or did
not occur. “I know he’s not there.”
6. Negative Evidence is when a
witness states that he did not see or
know the occurrence of a fact. “I did
not know if he was there or not.”
 Positive evidence has greater
weight than negative evidence.
THE BERRY RULE (Berry vs. State of Georgia
[1891])
Before a New Trial may be granted on the
ground of a NEWLY DISCOVERED
EVIDENCE, the following must be shown:
1. that the evidence was discovered after
trial;
2. such evidence could not have been
discovered and produced at the trial
even with the exercise of reasonable
diligence;
3. it is material and not merely
corroborative, cumulative or
impeaching;
4. the evidence is of such weight that it
would probably change the judgment if
admitted. (Custudio vs. Sandiganbayan, 453
SCRA 24)
The question of whether the evidence is
Newly Discovered has TWO ASPECTS:
a. Temporal Aspect – when the evidence
was discovered;
b. Predictive Aspect – when it should or
could have been discovered.
Distinction between Fact and Inference
Fact Inference
A conclusion derived A statement about the
from what is known. unknown derived from
what is known.
Something that is A guess supported by
capable of actual reason.
demonstration.
Evidentiary Questions Involved In the
Relationship Between Two Facts:
A. FACTUM PROBANDUM – the ultimate
fact sought to be established; proposition
to be established, hypothetical, and that
which one party affirms and the other
denies.
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 2010 REMEDIAL LAW

B. FACTUM PROBANS – the evidentiary  In order to revive the defense of alibi, it must
fact by which the factum probandum is to be shown that there is physical impossibility
be established; material evidencing the for the accused to be present at the scene of
proposition, existent, and offered for the the crime.
consideration of the tribunal.
EVIDENCE IS ADMISSIBLE IF:
1. It is relevant to the issue; (Relevancy
Distinction between Factum Probandum
Test)
and Factum Probans
2. It is not excluded by law or by any of the
FACTUM FACTUM rules of evidence, therefore,
PROBANDUM PROBANS
Competency Test. (Rule 128, Sec.3)
The ULTIMATE FACT The EVIDENTIARY
or fact sought to be FACT or the fact by TWO AXIOMS OF ADMISSIBILITY BY
established. which the factum WIGMORE:
probandum is to be
established.
1. Axiom of Relevancy. None but facts
having rational probative value are
May be ascertained The material admissible.
from the: evidencing the 2. Axiom of Competency. All facts having
1. Pleadings proposition.
rational probative value are admissible
2. Pre-trial order unless some specific rule forbids their
3. Issues which are admission.
tried with the
express or implied Distinctions between Admissibility of Evidence
consent of the
and Weight of Evidence
parties (Sec. 5,
Rule 10) Admissibility of
Weight of Evidence
Evidence
Conceived of as Conceived of for
hypothetical; that practical purposes Pertains to the ability Pertains to the effect
which one party affirms as existent, and is of the evidence to be of evidence admitted.
and the other denies. offered as such for allowed and accepted
the consideration of subject to its
the court. relevance and
Note: If a fact is competence.
ADMITTED, it cannot
be a factum Substantive essence The probative value
probandum because it or characteristic of evidence which the
is no longer in issue. feature of evidence court may give to
as would make it admit after complying
worthy of with the rules of
General Rule: The Rules of Evidence shall consideration by the relevancy and
be the same in all courts and in all trials and court before its competency.
hearings. (Rule 128, Sec. 2) admission.
Exceptions:
The rules of evidence do not apply to:  Admissibility is determined by the law in
a. Civil actions and criminal actions force at the time the evidence is presented.
Therefore there is no vested right of
governed by the Rules on Summary
evidence.
Procedure;  Failure to object renders evidence that is
b. Agrarian cases; otherwise admissible to be admitted.
c. Rules regarding the testimony of
witnesses from examinations, etc., in Note: Evidence otherwise inadmissible under the
cases under the MTC (where the parties law at the time the action accrued, may be
merely submit their position papers and their received in evidence provided it is admissible
witnesses’ affidavits and counter-affidavits.); under the law in force during the trial.
d. Quasi judicial bodies.
3 KINDS OF ADMISSIBILITY OF
ALIBI – not always a weak defense; it is EVIDENCE
only weak where positive identification 1. Multiple Admissibility – if evidence is
exists. Where the latter is present, the same relevant and competent for two or more
will prevail.

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purposes under the different rules of
law.
 e.g., a testimony of a person may be
part of res gestae, declaration of interest
or even a dying declaration.
 It must be established that an evidence
shall be used for more than one
purpose. The court will not take judicial
notice thereof.
2. Conditional Admissibility – a fact
offered in evidence may appear to be
immaterial at the time it is offered but
relevance or materiality of which will
readily be seen when connected to
other evidence not yet offered.
 Rule: Evidence of such fact may be
received on condition that the other
facts are subsequently proved.
3. Curative Admissibility – refers to a
situation where incompetent evidence
was erroneously received by the court
despite objection from the other 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:
a. competent evidence – whose rights are violated, admissible for
presentation of original; or
b. incompetent evidence – 1.
presentation of testimony of a third
person not party to the document.
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
2010 REMEDIAL LAW
reasonable degree to establish the
probability or improbability of the fact in
issue. (Sec. 4, Rule 128)
Constitutional Rules of Exclusion:
“The Fruit of the Poisonous Tree”
a) Art. III, Section 3(2)
Any evidence obtained in violation of
this or the preceding section [ART III
Sec. 2 and 3(1)] shall be inadmissible
for any purpose in any proceeding.
b) Art. III, Section 12(3)
Any confession or admission obtained in
violation of this or Section 17 hereof
shall be inadmissible in evidence
against him.
c) Art. III, Section 17
No person shall be compelled to be a
witness against himself.
Rights Protected by the EXCLUSIONARY
RULE
1. Right against unreasonable
searches and seizure (Art. III, Sec. 2, 1987
Constitution)
2. Right to privacy and inviolability of
communication (Art. III, Sec. 3, 1987
Constitution)
3. Rights of a person under investigation
for an offense (Art. III, Sec. 12, 1987
Constitution)
4. Right against self-incrimination (Art.
III, Sec. 17, 1987 Constitution)
Absolutely Inadmissible
Evidence obtained :
1. From unreasonable searches and
seizures; or
2. In violation of the right of privacy of
communication and correspondence.
Relatively Inadmissible
(Inadmissible only against the person
other purposes) – Evidence obtained:
In violation of the right to be
informed of the right to remain silent and
to have competent and independent
counsel;
2. From means which vitiate the free
will; and
3. In violation of the right against self-
incrimination.
STATUTORY RULES OF EXCLUSION:
a) NIRC (National Internal Revenue
Code), Sec. 201, as amended by RA
8424
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Sec. 201. Effect of Failure to Stamp
Taxable Document. — An instrument,
document or paper which is required by law
to be stamped and which has been signed,
issued, accepted or transferred without being
duly stamped, shall not be recorded, nor
shall it or any copy thereof or any record of
transfer of the same be admitted or used in
evidence in any court until the requisite
stamp or stamps shall have been affixed
thereto and cancelled.
No notary public or other officer
authorized to administer oaths shall add his
jurat or acknowledgment to any document
subject to documentary stamp tax unless the
proper documentary stamps are affixed
thereto and cancelled.
Failure to stamp a document required by
law to be stamped shall render the document
inadmissible in any court until the requisite
stamp or stamps shall have been affixed
thereto and cancelled (Sec. 201 NIRC).
b) General Banking Act of 2000,
Republic Act 8791, Sec. 55.1
Elements of the Exclusion
1. Director, officer, employee, or agent
of any bank who discloses;
2. Disclosure to unauthorized person;
3. Information relative to the funds or
properties in the custody of the bank
belonging to private individuals,
corporations, or any other entity;
and
4. Without a court order.
Note: This provision covers only property in
the custody of the bank other than bank
deposits. For bank deposits, RA 1405
governs. Note also that the provision does
not state the nature of the inadmissibility. It is
submitted that it is a rule of absolute
inadmissibility.
c) Republic Act 1405: Law on Secrecy of
Bank Deposits
General Rule: 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 an absolutely confidential
nature and may not be examined,
inquired or looked into by any person,
government official, bureau or office.
2010 REMEDIAL LAW
Exceptions:
1. Written permission of the depositor;
2. Impeachment;
3. Order of a competent court in cases
of bribery;
4. Dereliction of duty of public officials;
5. Where the money deposited or
invested is the subject matter of the
litigation; and
6. Anti-Money Laundering Act.
ANTI-WIRE TAPPING ACT
REPUBLIC ACT NO. 4200
Unlawful Acts (Republic Act 4200, Sec 1):
1. Any person, not being authorized by all
the parties to any private communication
or spoken word, to:
a. tap any wire or cable; or
b. by using any other device or
arrangement, to secretly overhear,
intercept, or record such
communication or spoken word by
using a device commonly known as
a dictaphone or dictagraph or
walkie-talkie or tape recorder, or
however otherwise described. arellano
law
2. Any person to knowingly possess any
tape record, wire record, disc record, or
any other such record, or copies thereof,
of any communication or spoken word
secured in the manner prohibited by this
law;
3. Any person to replay the same for any
other person or persons;
4. Any person to communicate the
contents thereof, either verbally or in
writing; or
5. Any person to furnish transcriptions
thereof, whether complete or partial, to
any other person.
Note: The use of such record or any copies
thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in
Section 3 hereof, shall not be covered by this
prohibition.
CONDITIONS FOR VALID WIRETAPPING
(Republic Act 4200, Secs. 2 and 3)
1. Performed by any peace officer;
2. Authorized by a written order of the
Court;
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 2010 REMEDIAL LAW

3. In cases involving the crimes of: vii. showing that the testimony elicited was
a. Treason; voluntarily made without any kind of
inducement. (Torralba vs. People, 467
b. Espionage; SCRA 552)
c. Provoking war and disloyalty in case COLLATERAL MATTERS are matters other
of: war, piracy, mutiny in the high than the facts in issue and which are offered
seas, rebellion, conspiracy; and as a basis for inference as to the existence
proposal to commit: or non-existence of facts in issue. This term
i. rebellion; connotes an absence of a direct connection
ii. inciting to rebellion; between the evidence and the matter in
iii. sedition; dispute.
iv. conspiracy to commit:
a. sedition;  While the evidence may not bear directly on
b. inciting to sedition, the issue, it will be admitted if it has the
kidnapping, espionage tendency to corroborate or supplement facts
and other offenses established previously by direct evidence, or
against national to induce belief as to the probability or
security. improbability of a fact in issue.

Note: Information obtained in violation of Two Considerations

the anti-wiretapping act is absolutely 1. Whether the incompetent evidence
inadmissible, to wit: is seasonably objected to; and
2. Whether regardless of the
Sec. 4. Any communication or spoken word, objections, the admission of such
or the existence, contents, substance, evidence will cause a plain and unfair
purport, effect, or meaning of the same or prejudice to the party against whom it
any part thereof, or any information therein was admitted.
contained obtained or secured by any
person in violation of the preceding sections
of this Act shall not be admissible in
evidence in any judicial, quasi-judicial,
legislative or administrative hearing or RULE 129
investigation. WHAT NEED NOT BE
 An extension telephone cannot be placed in PROVED
the same category as a dictaphone,
dictagraph or the other devices enumerated
in Section 1 of RA No. 4200 as the use 3 THINGS THAT NEED NOT BE PROVED:
thereof cannot be considered as "tapping" the
wire or cable of a telephone line (Gaanan vs. 1. Matters of mandatory judicial notice;
IAC 145, SCRA 112). 2. Matters of discretionary judicial notice;
3. Judicial admissions.
 Even a person privy to a communication who
records his private conversation with another
without the knowledge of the latter violates JUDICIAL NOTICE is when courts may
the anti-wiretapping act. The recording is properly take and act on matters without
inadmissible in evidence (Ramirez v. CA, 248 proof because such are already known to it.
SCRA 590).
 This, however, does not include personal
 Before a TAPE RECORDING is admissible
as evidence and given probative value, the knowledge of the facts by the judge.
following requisites must be established:  This is based on consideration of expediency
i. a showing that the recording device was and convenience.
capable of taking testimony;  It is, thus, a substitute for detailed evidence.
ii. a showing that the operator of the
device was competent;
iii. establishment of authenticity and
correctness of the recording; REQUISITES OF JUDICIAL NOTICE:
iv. a showing that changes, additions or 1. The matter must be of common
deletions have not been made; knowledge;
v. a showing of the manner of preservation
of the recording;
vi. identification of the speakers; and

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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.
3 KINDS OF JUDICIAL NOTICE
1. Mandatory
2. Discretionary
3. Requiring a hearing
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;
 Statutes are not the “acts of the
legislative” pertained here.
7. The laws of nature;
8. The measure of time; and
9. The geographical divisions.
Note: Courts cannot take judicial notice of
foreign laws. [Relate to Rule 39, Sec, 4]
(Laureano vs. CA and Singapore Airlines, 324
SCRA 414)
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.
 When parties in a case agree on what the
foreign law provides, there are admissions of
fact which the other parties and the court are
made to rely upon, hence they are estopped
to subsequently take a contrary position.
 The mere personal knowledge of the judge is
not the judicial knowledge of the court;
judicial cognizance is taken only of those
matters which are “commonly” known.
 A fact may be of judicial notice and not of
judge’s personal knowledge and vice versa.
 The rule refers to facts which ought to be
known to judges because of their judicial
functions.
2010 REMEDIAL LAW
B. DISCRETIONARY JUDICIAL NOTICE
Refers to matters which are: [ a.k.a. 3
Grounds]
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.
 e.g., That Filipino women as witnesses
are ordinarily docile and timid.
When Court Takes Judicial Notice:
1. During trial; or
2. 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)
Exception:
When judge may take judicial notice of
record of another case previously tried
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:
1. They are expressly authorized by
statute; and
2. On appeals of decisions by the inferior
court when such courts had taken notice
of a municipal ordinance.
When Hearing is Necessary: (Rule 129, Sec.
3)
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1. During the trial:
i. the court motu propio, or on request
of a party; and
ii. Announces its intention to take
judicial notice of any matter.
2. After trial and before judgment or on
appeal:
i. The court motu propio, or on
request of a party;
ii. Takes judicial notice of any matter,
and
iii. 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).
C. JUDICIAL ADMISSIONS
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.
The admission may be contradicted only
by showing that:
1. It was made through palpable
mistake; or
2. No such admission was made.
Note:
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)
 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)
2010 REMEDIAL LAW
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.
 As far as the one who offered it,
depositions are admissions.
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:
1. 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;
2. The same were withdrawn with the
permission of the court therein; and
3. The court deems it proper to relieve the
party therefrom.
SELF-SERVING RULE:
 It prohibits the admission of declaration of a
witness in his favor.
 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.
RULE 130
RULES OF ADMISSIBILITY
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 2010 REMEDIAL LAW

A. OBJECT / REAL EVIDENCE (Sec. 3. Offensiveness to human sense; and

1, Rule 130) 4. Inconvenience and unnecessary
expense of litigation.
Evidence addressed to the senses of the
Note: Photographs are real evidence, but
court.
they should be authenticated by:
1. The one who took the picture; and
 Always accompanied by testimonial
2. The person in the picture.
evidence to support the object
presented which is not a rule of
exclusion. B. DOCUMENTARY EVIDENCE (Sec.
 Ocular inspection qualifies as object 3, Rule 130)
evidence. Refers to writings and any material
containing modes of written expressions
REQUISITES FOR ADMISSIBILITY OF offered as proof of their contents.
OBJECT EVIDENCE:
1. Relevant;  Any object or material having any matter
2. Competent; expressed or described upon it by marks
3. Identified; Not present in capable of being read.
 If offered as proof of the existence of such
4. Authenticated; Testimonial
document, it is an object evidence.
5. Duly Marked; and Evidence
6. Formally Offered REQUISITES FOR ADMISSIBILITY OF
DOCUMENTARY EVIDENCE:
Note: Appearance of the victim is object 1. Relevant;
evidence. (People vs. Rullepa, 398 SCRA 567) 2. Competent;
Ocular Inspection or “View” – the court 3. Identified; Not present in
can go to the place where the object is 4. Authenticated; Testimonial
located, when object evidence cannot be 5. Duly Marked; and Evidence
brought to court. 6. Formally Offered

“View” Part of the Trial Documents Under the Rules on

The inspection or view outside the
courtroom should be made in the presence
of the parties; or at least with previous notice
to them in order that they may show the
object to be viewed. Such inspection is a
part of the trial, inasmuch as evidence is
thereby being received.
Electronic Evidence
 Electronic documents are the
functional equivalents of paper-based
documents.
 Any reference to a document
under the rules on evidence shall be
deemed to include electronic evidence.

Demonstrative RULES IN DOCUMENTARY EVIDENCE

Real Evidence
Evidence 1. Best Evidence
Tangible object that Tangible evidence 2. Parol Evidence
played some actual that merely 3. Electronic Evidence
role in the matter illustrate a matter of
1. BEST EVIDENCE (Sec. 3, Rule 130)
that gave rise to the importance in the
General Rule: When the subject of
litigation. litigation.
inquiry is the contents of a document, no
evidence shall be admissible other than
GROUNDS FOR EXCLUDING OBJECT the original document itself.
EVIDENCE: Exceptions: (a.k.a. Secondary Evidence
Inherent Limitations: Rule)
a. Irrelevance / immateriality; and When the original:
b. Illegally obtained evidence. 1. Has been lost or destroyed, or
cannot be produced in court, without
Non-inherent Limitations: bad faith on the part of the offeror;
1. Undue prejudice;
2. Indecency or impropriety;

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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.
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
2010 REMEDIAL LAW
the marked bill, but merely its existence
(People v. Tandoy, 192 SCRA 28).
When Is A Document Original (Rule 130,
Sec. 4)
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
transaction, all the entries are likewise
equally regarded as originals.
Note: Carbon copy is not secondary
evidence but a duplicate original. However
when it is made and signed at the same time
as the original, it becomes primary evidence.
SECONDARY EVIDENCE (Sec. 5, Rule
130)
When Secondary Evidence may be
admitted:
1. The original has been lost or
destroyed, or cannot be produced in
court:
a. Prove due execution or existence;
b. Prove cause of unavailability without
bad faith on the part of the offeror;
and
c. Proof of contents in the following
order:
1. Copy of the writing;
2. Recital of its contents in some
authentic document; or
3. 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)
 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)
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2. The original is in the custody or
under the control of the adverse party:
a. Adverse party had reasonable
notice to produce the original
(Subpoena duces tecum);
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.
b. Proof of the original’s existence;
c. Adverse party fails to produce the
original; and
d. Proof of contents in the following
order;
1. Copy of the writing;
2. Recital of its contents in some
authentic document; or
3. Testimony of witnesses. (Rule
130, Sec. 6)
3. 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])
4. 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:
1. Copy of the writing;
2. Recital of its contents in
some authentic document; or
3. Testimony of witnesses.
(Rule 130, Sec. 5)
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.
2010 REMEDIAL LAW
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:
a. The copy is a correct copy of the
original, or a specific part thereof.
b. 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.
 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).
 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).
 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).
2. PAROL EVIDENCE (Sec. 9, Rule 130)
Means extrinsic evidence or evidence
aliunde.
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 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.
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 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.
 If the ground is “subsequently-agreed”
terms, the “subsequently-agreed” terms
must also be put in issue in the
pleadings.
 The rule applies only to the terms of an
agreement. If the evidence sought to be
admitted refers to matters other than the
terms of the agreement (e.g. statement
of facts), then the Parol Evidence Rule
does not apply, such evidence is
admissible.
 Parol Evidence Rule applies only to the
parties to the agreement. It does not
apply where Parol Evidence Rule is
invoked against a litigant who is a
stranger to the 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 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.
Purpose of the Rule:
2010 REMEDIAL LAW
To give stability to written agreement and
remove the temptation and possibility of
perjury, which would be afforded if parol
evidence was admissible.
 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.
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.
Exception:
Collateral Oral Agreement - a contract
made prior to or contemporaneous with
another agreement and IF ORAL and NOT
INCONSISTENT with written contract IS
ADMISSIBLE within the exception to parol
evidence rule.
An Agreement is “COLLATERAL” if it meets
the following requirements:
a. It is not a part of the integrated written
agreement in any way;
b. It is not inconsistent with the written
agreement in any way, including both
the express and implied provisions of
the written agreement; and
c. It is not closely connected with the
principal transaction as to form part and
parcel thereof.
KINDS OF AMBIGUITY:
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 meaning uncertain.
2. Extrinsic or Patent Ambiguity –
ambiguity is patent on the face of the
writing itself and requires something to
be added in order to ascertain the
meaning of the words used.
3. Intermediate Ambiguity – where
the ambiguity consists in the use of
equivocal words designating the person
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 2010 REMEDIAL LAW

or subject matter, parol evidence of  The evidence aliunde is either

collateral or extrinsic matter may be testimonial evidence or
introduced for the purpose of aiding the documentary evidence.
court in arriving at the meaning of the
language used. Principle of “Falsa Demonstratio Non
4. Nocet Cum De Corpore Constat":
False description does not injure or vitiate a
Distinctions between Parol Evidence document, provided that the thing or person
intended has once been sufficiently
Rule and Best Evidence Rule described.
Parol Evidence Rule Best Evidence Rule
As to availability of the original Rule on Conditional Agreements:
Presupposes that the Contemplates a 1. Conditions Precedent – may be
original is available in situation when the established by parol evidence because
court. original is not there is no varying of the terms of the
available in court written contract by extrinsic agreement
and/or there is a for the reason that there is no contract in
dispute as to whether existence; there is nothing upon which
said writing is the to apply the excluding rule.
original. 2. Conditions Subsequent – may not
As to what is prohibited by the rule be established by parol evidence.
Prohibits the varying Prohibits the
of the terms of a introduction of RULE ON SUBSEQUENT AGREEMENTS:
written agreement. substitutionary Parol Evidence Allowed. The rule
evidence in lieu of the forbidding the admission of parol evidence
original document to alter or contradict a written instrument
regardless of whether does not apply so as to prohibit the
or not it varies the
establishment by parol evidence of an
contents of the
original
agreement between the parties in writing,
entered into subsequent to the time when
the written instrument was executed,
Parol Evidence Rule Best Evidence Rule notwithstanding that such agreement may
As to who may invoke the rule have the effect of changing the contract of
Can be invoked only Can be invoked by the parties as evidenced by the writing; for
when the controversy any party to an action parol evidence merely goes to show that the
is between the parties regardless of whether parties have exercised their right to change
to the written such party the same, or to make a new and
agreement, their participated or not in independent contract, provided such
privies, or any party the writing involved. contract is not invalid under the statute of
directly affected frauds or otherwise.
thereby.
As to documents to which it may be Express Trusts on Immovables (Art. 1443,
applicable NCC)
With the exception of Applies to all kinds of Cannot be proved by parol evidence.
wills, applies only to writing. STATUTE OF FRAUDS (Art. 1403 and 1405
documents which are NCC):
contractual in nature.  If the following agreements are not in
writing and subscribed, it is
Note: INTRINSIC and INTERMEDIATE unenforceable and evidence thereof is
AMBIGUITIES are curable by evidence aliunde inadmissible:
or extraneous evidence and will be admissible as 1. Special promise to answer for the
long as such ambiguity is put in issue. debt, default, or miscarriage of
another;
PATENT AMBIGUITY cannot be cured 2. Obligations not to be performed
by evidence aliunde, and are therefore within a year from the making
inadmissible. thereof;

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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 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:
 Failure to object to the presentation of
oral evidence, or
 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).
 In a foreclosure of REM case, plaintiff
invokes the registered mortgage agreement.
Defendant answered that the contract did not
express the true agreement of the parties
because it did not include the undertaking of
plaintiff to construct roads on the land.
Furthermore, defendant argued that the
ordinance that requires the construction of
such roads in the subdivision before the lots
could be sold is deemed included in the
contract.
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 v.
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. v.
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
2010 REMEDIAL LAW
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 v.
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 can not 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)
3. ELECTRONIC EVIDENCE
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
>>>>>> PURPLE NOTES COMMISSION 182

who was a party to the same or has
oersonal knowledge thereof. (Vidallon-
Magtolis vs. Salud, 469 SCRA 439)
RULES ON ELECTRONIC
EVIDENCE
A.M. NO. 01-7-01-SC,
AUGUST 1, 2001
RULE 1
Scope: - Applies whenever an electronic
data message is offered or used in
evidence.
Cases Covered: - These Rules shall apply
to all civil actions and proceedings, as well
as quasi-judicial and administrative cases.
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,
2010 REMEDIAL LAW
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 electronic
document and the signer’s public key can
accurately determine:
 whether the transformation was created
using the private key that corresponds to the
signer’s public key; and
 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. For purposes of these
Rules, an electronic signature includes digital
signatures.
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“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.
2010 REMEDIAL LAW
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:
1. It is not proscribed by law; and
2. There is waiver because the CENR
Commissioner himself referred to such
signature, thus admitting its validity.
(Heirs of Sabanpan vs. Comorposa, 408
SCRA 692)
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;
4. By mechanical or electronic re-
recording;
5. By chemical reproduction;
6. Other equivalent techniques which
accurately reproduces the original,
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.
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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:
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
 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.
 Authentication of electronic signatures
may be authenticated in any of the
following manner:
2010 REMEDIAL LAW
1. By evidence that a method
or process was utilized to establish
a digital signature and verity the
same;
2. By any other means
provided by law; or
3. 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
>>>>>> PURPLE NOTES COMMISSION 185

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:
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 tot he 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,
2010 REMEDIAL LAW
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
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
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competent to testify on the accuracy
thereof.
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
 Interpretation of a writing according to
its legal meaning in the place of
execution (Rule 130, Sec 10)
 Instrument construed so as to give effect
to more provisions (Rule 130, Sec 11)
 Interpretation according to intention of
the parties (Rule 130, Sec 12)
 Particular provisions over general
provisions (Rule 130, Sec 12)
 Interpretation according to
circumstances of the parties and the
subject (Rule 130, Sec 13)
 Terms presumed to be used in primary
and general acceptation, evidence of
local, technical, or peculiar signification
use admissible (Rule 130, Sec 14)
 Written words control printed (Rule 130,
Sec 15)
 When the characters are difficult to
decipher, or the language is foreign, the
evidence of experts and interpreters is
admissible (Rule 130, Sec 16)
 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)
 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.
 Preference for natural right (Rule 130, Sec
18)
2010 REMEDIAL LAW
 Usage may be considered (Rule 130, Sec
19)
C. TESTIMONIAL EVIDENCE
1. QUALIFICATION OF WITNESSES
(Sec. 20, Rule 130)
WITNESS is a person who testifies in a case
or gives evidence before a judicial tribunal.
Qualifications 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.
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 relative disqualifications
may be raised when it becomes apparent
that the subject matter of the testimony
covers inadmissible matters.
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);
>>>>>> PURPLE NOTES COMMISSION 187

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:
 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;
2010 REMEDIAL LAW
5. He should not, at any time, been
convicted of a crime involving moral
turpitude.
THE RULE ON
EXAMINATION OF A
CHILD WITNESS
A.M. No. 00-4-07-SC;
December 15, 2000
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;
1. Capacity of observation;
2. Capacity of recollection; and
3. Capacity of communication. (Recto
vs. Republic, 440 SCRA 79)
COMPETENCY UNDER THIS RULE:
Every child is presumed qualified to
be a witness. However, the court shall
conduct a competency examination of a
child, motu propio or 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.
>>>>>> PURPLE NOTES COMMISSION 188

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 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.
Exception to the 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
2010 REMEDIAL LAW
offer such statement and its
particulars to provide him a fair
opportunity to object.
 If the child is available, the
court shall, upon motion of the
adverse party, require the child
to be present at the
presentation of the hearsay
statement for cross-
examination by the adverse
party.
 When the child is unavailable,
the fact of such circumstance
must be proved by the
proponent.
2. 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.
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.
 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)
>>>>>> PURPLE NOTES COMMISSION 189
 2010 REMEDIAL LAW

 A wife who is a co-defendant of her husband in a

case of collusive fraud, where their interests are
MARITAL DISQUALIFICATION RULE: not separate, can not be examined as a hostile
(Sec. 22, Rule 130) witness by the adverse party. (Lezama vs.
Requisites: Rodriguez, 23 SCRA 1166)
1. Marriage subsists;
 Another exception to the Marital Disqualification
2. A spouse is a litigant; Rule: when the relations (harmonious
3. No consent from the spouse-litigant; and relationship/domestic peace) the State seeks to
4. Not a civil case by one against the other, protect is already strained. (Alvarez vs. Ramirez,
or a criminal case for a crime committed 473 SCRA 72)
by one against the other or the latter's
direct descendants or ascendants. DEAD MAN’S STATUTE (a.k.a.
Survivorship Rule): (Sec. 23, Rule 130)
Reason for the Rule: Applies only to a civil or special
To obviate perjury and to prevent domestic proceeding.
disunity and unhappiness.
Requisites:
Distinction between Marital Disqualification and 1. The witness is a party or assignor of a
Marital Privilege party to a case or persons in whose
behalf a case is prosecuted;
Marital Marital Privilege
2. That the action is against an executor or
Disqualification (Sec. 24) administrator or other representative of
(Sec. 22) a deceased person or a person of
Covers all matters Covers only those unsound mind;
regardless of source communicated by one 3. That the subject matter of the action is a
spouse to another claim or demand against the estate of
Applies during the Applies during and the deceased person or against person
marriage after the marriage of unsound mind; and
A spouse must be a A spouse need not be 4. That his testimony refers to any matter
litigant a litigant of fact which occurred ante lite motam
(before the death of such deceased
Invoked when a Invoked when the
spouse is called to testimony appears to person or before such person became
testify cover privileged of unsound mind).
matters
Assignor herein refers to an assignor of a
Absolute Relative cause of action which has already arisen and
disqualification disqualification not the assignor of a right before any cause
of action accrued.
Note: The exceptions under the marital
disqualification and marital communications
rule are the same. Purpose of the Rule:
To guard against the temptation to give false
MARRYING THE WITNESS: testimony on the part of the surviving party,
An accused can effectively “seal the lips” of and to put the parties to the suit in equal
a witness by marrying the witness. As long footing with regard to the opportunity to
as a valid marriage is in existence at the produce evidence (since adverse party can
time of the trial, the witness-spouse cannot no longer rebut testimony).
be compelled to testify even when the crime
charged is against the witness, and even Distinction between Dead Man’s Statue and
though the marriage was entered into for the Marital Disqualification Rule
express purpose of suppressing the Marital
testimony. Dead Man’s Statute Disqualification
Rule
Who May Object: Only partial It is a complete and
Only the spouse-party may object on the disqualification as the absolute
testimony and not the spouse who is offered witness is only disqualification.
as a witness. prohibited from
testifying on the

>>>>>> PURPLE NOTES COMMISSION 190

 2010 REMEDIAL LAW

matters therein man’s statute is not applicable. (Reyes vs. Wells,

54 Phil 102)
specified.
Applies only to a civil Applies to a civil or  Mere witnesses not parties to the case are not
case or special criminal case, subject disqualified by the dead man’s statute.
proceeding over the only to the 2 Furthermore, the rule requires that the defendant
must be the estate. It does not apply where the
estate of a deceased exceptions provided
heirs are being sued in their individual capacities.
or insane. therein: “Representatives” are only those who, like the
1) in a civil case by executor, are sued in their representative, not
one against the personal, capacity. (Guerrero vs. St. Clare’s
other; or Realty 124 SCRA 553)
2) in a criminal case  This in effect ruled that the Dead Man’s Statute
for a crime can not be invoked against a plaintiff-corporation.
committed by Interest no longer disqualifies a witness.
one against the Officers/stockholder of corporation may testify in a
other or the case filed against the estate of a deceased by the
latter’s direct corporation. (Lichauco vs. Atlantic Gulf, 84 Phil.
descendants or 330)
ascendant.
 If there is no instrument evidencing the claim, it
would be difficult to prove the claim in the estate
 Facts favorable to the deceased are NOT proceeding because of the dead man’s statute.
prohibited: However, if there is such an instrument, it is not
Inasmuch as the statutes are designed barred by the dead man’s statute. (Neibert vs.
Neibert, April 29, 1961)
to protect the interest of a deceased or
insane person, they do not exclude  The prohibition does not apply when testimony is
testimonies which are favorable to the offered to prove a claim less than what is
representative of such person. established under a written contract. (Icard vs.
Marasigan, 71 Phil 419)
WHEN THE “Dead Man’s Statute” OR
“Survivorship Rule” DOES NOT APPLY:  Heirs of a deceased are “representatives” within
the ambit of the dead man’s statute; the rule is
1. Testimony of mere witnesses who are waived by the defendant if he files a counterclaim
neither party plaintiffs, nor their against plaintiff; adverse party may testify to
assignors, nor persons in whose behalf transactions or communications with deceased
a case is prosecuted which were made with an agent of such person if
the agents is still alive and can testify as long as it
2. If the plaintiff is the executor or is confined to the transactions. (Goñi v. CA, 144
administrator or other representative of SCRA 222)
a deceased person, of the person of
unsound mind  Where the plaintiff is sued for counterclaim, the
Survivorship Rule does not apply. (Razon vs. IAC,
3. In an action against a partnership 207 SCRA 234)
4. If the person/s mentioned under the rule
files a counterclaim PRIVILEGED COMMUNICATIONS:
5. When the testimony refers to fraudulent 1. Marital Privilege [Rule 130, Sec 24 (a)];
transactions committed by the persons 2. Attorney-Client [Rule 130, Sec 24(b)];
mentioned in the rule 3. Physician-Patient [Rule 130, Sec 24) (c)];
6. When there is a waiver 4. Priest-Penitent [Rule 130, Sec 24) (d)];
7. When the testimony of a plaintiff refers 5. State Secrets [Rule 130, Sec 24(e)];
to the non-occurrence of a fact because 6. The guardian ad litem shall not testify in
in that case, the plaintiff does not testify any proceeding concerning any
on the occurrence of a fact but on its information, statement, of opinion
non-occurrence received from the child in the course of
8. In cadastral cases serving as a guardian ad litem, unless
the court finds it necessary to promote
 The dead man’s statute does not apply where the
case is filed by the estate. Besides, cross-
the best interests of the child [Sec. 5(e) of
examination of the witness is a waiver of the the Rule on Examination of a Child Witness];
privilege. (Razon vs. IAC, 207 SCRA 234) 7. Editors may not be compelled to
disclose the source of published news.
 If the witness sought to be disqualified is not the
(RA 53, as amended by RA 1477, Sec 1);
plaintiff (e.g. disinterested 3rd party), the dead

>>>>>> PURPLE NOTES COMMISSION 191


8. Voters may not be compelled to disclose
for whom they voted;
9. Trade secrets [Cocoland Development v NLRC
GRN 98458 July 17, 1996];
10. Bank Deposits (RA 1405).
DISQUALIFICATION BY REASON OF
PRIVILEGED COMMUNICATION (Sec. 24,
Rule 130)
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.
 Unless waived, the disqualification
under Section 24 remains even after the
various relationships therein have
ceased to exist.
A. MARITAL PRIVILEGE: (par. (a), Sec.
24)
Requisites:
a. The spouses must be legally
married;
b. The communication must be
confidential and made during the
marriage; and
c. The spouse against whom such
evidence is being offered has not
given 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
2010 REMEDIAL LAW
for instance. (U.S. vs. Antipolo, 37 Phil
726)
Rule 130, Sec. 22: Marital Disqualification
Rule:
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 3 rd
party, without collusion or voluntary disclosure on
the part of either spouse, it is not privileged;
illegality of seizure must be raised by motion
before trial for return of letter; unanswered letter is
inadmissible (People vs. Carlos, 47 Phil. 626)
B. ATTORNEY-CLIENT PRIVILEGE: (par.
(b), Sec. 24, Rule 130)
Requisites:
a) There must be a communication
made by the client to the attorney or
an advice given by the attorney to
his client;
b) Communication must have been
made in confidence;
c) The communication or advice must
have been given either in the course
of the professional employment or
with a view to professional
employment.
 The phrase “with a view to” includes
those communication made during
consultation preparatory to professional
employment.
 Preliminary communication made for the
purpose of creating attorney-client
relationship is within the privilege.
 The relationship between the attorney
and the client is said to exist where a
person employs the professional
services of an attorney or seeks
professional guidance, even though the
attorney declines to handles the case.
However, if the communications
were not made for the purpose of
creating that relationship, they will not
be covered by the privilege.
 NOT Applicable:
>>>>>> PURPLE NOTES COMMISSION 192

a. When intended to be made public;
b. When intended to be
communicated to others;
c. When received form third persons
not acting in behalf of or as agents
of the client;
d. When intended for an unlawful
purpose; and
e. When made in the presence of
third parties who are strangers to
the attorney-client relationship.
Note: The lawyer-client privilege
extends to the staff of the lawyer.
Hence, in this case, the rule that “if
made in the presence of 3rd persons, it
is not considered confidential” is NOT
APPLICABLE.
General Rule: A lawyer may not invoke
the privilege and refuse to divulge the
name or identify of his client.
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.
 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).
C. PHYSICIAN-PATIENT PRIVILEGE:
(par. (c), Sec. 24, Rule 130)
2010 REMEDIAL LAW
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;
and
4. The privilege is invoked in a civil
case, whether the patient is a party
thereto or not.
NOT Applicable:
 When the communication was not given
in confidence.
 When the communication is irrelevant to
the professional employment.
 Then the communication was made for
an unlawful purpose.
 When the information was intended to
be made public.
 When there was a waiver of the
privilege either by provisions of
contract or law.
E.g. A filed a case against B for
Acknowledgment of Paternity. B sought
for the medical exam of A. Dr. X
examined A. A, later on, asked for a
copy of the medical result. In this case,
the Doctrine of Privileged
Communication will not apply because
there is a waiver of the privilege under
Rule 27, Sec. 4.
 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.
 The physician-patient privilege is not violated
by permitting physician to give expert
testimony regarding hypothetical facts. (Lim
v. CA, 214 SCRA 273)
 Non-physician testimony on a medical
psychologist’s report is not covered by the
physician-patient privilege. (Krohn v. CA, 233
SCRA 146)
D. PRIEST-PENITENT PRIVILEGE:
(par. (d), Sec. 24, Rule 130)
Requisites: The confession must be
made to the minister or priest in his
professional character and in the course
>>>>>> PURPLE NOTES COMMISSION 193

of discipline enjoined by the rules of
practice of the denomination to which
the priest of minister belongs; and
 “Priest” does not mean that he is an
ordained priest. Mike Velarde and
Ely Soriano falls under this
category; even the Mormons
roaming around.
 A spiritual adviser does not
necessarily mean “Priest” as used
here.
1. The confession must be of a
penitential character, that is
confession of sins with a view to
obtaining pardon and spiritual
advice or assistance
 Communication made not in the
course of religious discipline but in
contemplation of a crime is NOT
privileged.
E. STATE SECRETS: (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.
NOT Applicable:
a. When the information is useful
evidence to vindicate the innocence
of an accused person;
b. When such information would
lessen the risk of a false testimony;
c. When it is essential to the proper
disposition of the case; and
d. 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.
 Absent a claim of need to protect military,
diplomatic or sensitive national security
secrets, executive privilege can not prevail
over due process. (US v. Nixon, 418 U.S.
683)
2010 REMEDIAL LAW
Special Laws with Regard to State
Secrets:
1. RA 7653 (New Central Bank Act), Sec.16
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.
2. 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.
3. 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.
F. 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) 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
>>>>>> PURPLE NOTES COMMISSION 194

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
3) 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.
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.
2. TESTIMONIAL PRIVILEGE
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.
2010 REMEDIAL LAW
Hence, a descendant may be compelled
to testify in a criminal case where:
1. The descendant-witness himself is the
victim; or
2. 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)
3. 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
Admissions that are Admissible Against
a Party:
1. Admissions against interest
2. Compromises
3. EXCEPTIONS to Res Inter Alios Acta:
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.
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 In an administrative complaint against a lawyer for

his negligence in the performance of his duties as
Elements for an Admission to be counsel, “Respondent’s failure to file an answer to
Admissible: the complaint despite notice from the IBP amounts
1. Must involve matters of fact, not of law; to an admission of the allegations therein…”
2. Must be categorical and definite; (Pilapil vs. Carillo, AC No. 5843, Jan. 14, 2003)
 President’s admission binds the corporation.
3. Must be knowingly and voluntarily (Keller & Co. vs. COB, January 16, 1986)
made; and
4. Must be adverse to the admitter’s COMPROMISES
interest. Otherwise it would be self-
serving and generally inadmissible. Offer of Compromise
Civil Cases Criminal Cases
Distinctions
An offer of An offer of
ADMISSION CONFESSION compromise is not an compromise by the
Statement of fact Statement of fact admission of any accused may be
which does not which involves an liability and is not received in evidence
involve an acknowledgment of admissible in as an implied
acknowledgment of guilt or liability without evidence against the admission of guilt.
guilt or liability any exculpatory offeror.
statement Exception:
Express or tacit Always express Exception: 1. Those involving
When such offer is quasi-offenses;
May be made by third Made only by the clearly not only to buy 2. Those allowed by
persons and, in party himself, and, in peace but amounts to law to be
certain cases, are some instances, are an admission of compromised (i.e.
admissible against a admissible against his liability the offered Tax Cases);
party co-accused compromise being 3. Plea of guilty later
directed only to the withdrawn;
NOTE: Every confession is an admission, amount paid. 4. As unaccepted
but not all admissions are confessions. offer of a plea of
guilty to a lesser
offense;
SELF–SERVING DECLARATIONS are 5. An offer or
unsworn statements made by the declarant payment of
out of court and which are favorable to his medical, hospital
interest. It is not admissible in evidence or other expenses
because of the lack of opportunity to cross- occasioned by an
examine. injury; and
6. Under the
Distinctions Katarungang
Pambarangay
DECLARATIONS Law.
ADMISSIONS
AGAINST INTEREST
Made against the Need not be made Reason Compromise Is Allowed In Civil
proprietary or against pecuniary or Cases: It is the policy of the law to favor the
pecuniary interest of proprietary interest. settlement of disputes, to foster
the parties.
compromises and to promote peace. (Genato
Made by a person Made by a party vs. Silapan, Adm. Case. No. 4078, July 14, 2003)
who is either himself, and is
deceased or unable primary evidence and Note: An offer of compromise that may be
to testify. competent though he considered an implied admission need NOT
be present in court be made by the accused himself, it may be
and ready to testify. made by his lawyer or relatives, provided it is
Must be made ante May be made any made with the consent of the accused or
litem motam. time. with his knowledge and he does not stop it.

 The unexplained flight of an accused may be Distinctions

taken as evidence having tendency to establish Offer of Ordinary Admission
his guilt. (Adame vs. CA, GR No. 139830, Nov. 21, Compromise
2002)
The proposal is The intention is

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tentative and any apparently to admit 3. The acts or declaration refers to

statement made in liability and to seek to matters within the scope of his
connection with it is buy or secure relief authority
hypothetical to buy against a liability
peace and in recognized as such. B. Co-Conspirator’s Statements
contemplation of Requisites:
mutual concessions.
1. Act or declaration of a conspirator;
DOCTRINE OF RES INTER ALIOS ACTA 2. Relating to the conspiracy;
“Res inter alios acta altere nocere non 3. Made during its existence; and
debet” 4. The conspiracy is shown by
Things done between two persons ought not evidence other than such act of
to injure or prejudice those who are not declaration;
parties to it.
 The rights of a party cannot be C. Admission By Privies
prejudiced by the act, declaration or
PRIVIES are those who have mutual or
omission of another.
successive relationship to the same
A. First Branch right of property or subject matter.
 Admission by third party. (Rule 130,
Sec. 28) Kinds of Privies:
Those arising from:
Exceptions to First Branch of Res 1. Contract
Inter Alios Acta Rule: 2. Law – e.g. Succession
1. Admission by a co-partner or agent 3. Blood – e.g. father and son
(Rule 130, sec.29) Requisites:
2. Admission by a co-conspirator (Rule 1. Act, declaration, or omission (ADO)
130, Sec. 30)
is made by a predecessor-in-
3. Admission by privies (Rule 130, Sec.
31)
interest;
2. ADO is made while holding the title
B. Second Branch in relation to the property.
 Similar acts as evidence (Rule 130, Sec. 3. ADO must be in relation to the
34) property.

 The res inter alios acta rule refers only to the

extrajudicial declarations or admissions and
not to testimony given on the witness stand
Exceptions:
where the party adversely affected has the a. Where the declarations are made in
opportunity to cross-examine the declarant. the presence of the transferee and he
(People vs. Camiling, 424 SCRA 698) acquiesce in the statement or asserts
no right where he ought to speak;
ADMISSION BY THIRD PARTY (Sec. 28)
b. Where there has been prima facie
General Rule: extrajudicial acts of a person
case of fraud established, as where
other than a party are inadmissible against
the possession of the thing after the
such party.
transfer remains with the seller or
Exceptions:
transferor; or
1. Partner’s/Agent’s Admissions
c. Where the evidence establishes a
2. Co-Conspirator’s Statements
continuing conspiracy to defraud.
3. Admission by Privies
4. Admission by Silence
D. Admission by Silence
Requisites:
A. Partner’s/Agent’s Admissions
1. The act or declaration is made in the
Requisites:
presence and within the hearing or
1. The acts or declaration were made
observation of party;
during the existence of partnership.
2. The party does or says nothing;
2. That the partnership be previously
3. The act or declaration naturally calls
proven by evidence other than the
for action of comment if not true;
admission itself;
and

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4. Such action or comment is proper
and possible on the part of the party.
Note:When Silence NOT Considered
an Admission (exception to the
exception):
1. If made on the advise of the
counsel; and
2. If done due to lack of full
appreciation or understanding.
Doctrine of Adoptive Admission:
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.
CONFESSION
A categorical acknowledgment of guilt
made by an accused in a criminal case
without any exculpatory statement or
explanation.
 This rule is generally applicable in criminal
cases.
 There can also be a confession of judgement
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:
1. 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.
2. Extrajudicial Confession is one made
in any other place or occasion and
2010 REMEDIAL LAW
cannot sustain a conviction UNLESS its
voluntariness is proven and
corroborated by evidence of the corpus
delicti.
Requisites for Admissibility of
Extrajudicial Confessions:
1. Express;
2. Voluntary;
3. With the assistance of a competent
and independent counsel; and
4. In writing
Corpus delicti – refers to a particular
crime and signifies that the specific
offense had been actually committed by
someone.
General Rule: An extrajudicial confession is
admissible against the confessor only. It is
incompetent evidence against his co-
accused for being hearsay and because of
the res inter alios acta rule.
Exceptions: (When admissible against the co-
defendants)
1. If the co-defendants impliedly
acquiesced in or adopted said
confession;
2. Interlocking confessions – if the accused
persons voluntarily and independently
executed identical confession without
collusion and corroborated by other
evidence;
3. Where the accused admitted the facts
stated by the confessant after being
apprised of such confession;
4. If they are charged as co-conspirators of
the crime which was confessed by one
of the accused and said confession is
used only as corroborating evidence;
5. Where the confession is used as
circumstantial evidence to show the
probability of participation by the
conspirator;
6. When the confessant testified for his co-
defendant; and
7. Where the co-conspirator’s extrajudicial
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
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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.
4. PREVIOUS CONDUCT AS
EVIDENCE
General Rule: Evidence that one did or did
not do a certain thing at one time is not
admissible to prove that he did or did not do
the same or similar thing at another time.
Exceptions: It may be received to prove a
specific.
1. Intent;
2. Knowledge;
3. Identity;
4. Plan;
5. System;
6. Scheme;
7. Habit;
8. Custom; or
9. Usage, and the like.
Unaccepted Offer - An offer in writing to pay
a particular sum of money or to deliver a
written instrument or specific personal
property, if rejected without valid cause is
equivalent to the actual production and
tender of the money, instrument, or property.
5. TESTIMONIAL KNOWLEDGE
Rule: A witness can testify only to those
facts which he knows of his personal
knowledge, that is which are derived from
his own perception, except as otherwise
provided in the rules. (Sec. 36, Rule 130)
HEARSAY EVIDENCE – means that kind of
evidence which derives its value not solely
from the witness himself, but also in part
because of the veracity and competency of
some other person from whom the witness
may have received his information.
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.
2010 REMEDIAL LAW
Hearsay Twice Removed:
 Also called “doubled hearsay”.
 Even the source of the hearsay
introduced is itself hearsay.
Classification of Out-of-Court
Statements:
1. 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.
2. 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.
6. 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).
 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.
EXCEPTIONS TO THE HEARSAY RULE
A. DYING DECLARATION (Sec. 37):
Requisites:
1. Declaration of a dying person;
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2. Made under the consciousness of exceptions to res hearsay

an impending death; inter alios acta
3. His death is the subject of inquiry;
Evidence against the Evidence against
4. As evidence of the cause and successor in interest even the declarant,
surrounding circumstances of such of the admitter his successor in
death; and interest, or 3rd
5. That the statement is complete in persons
itself (People vs. De Joya, 203 SCRA 343).
6. Declaration relates to facts which Admitter need not Declarant is dead or
be dead or unable to unable to testify
the victim is competent to testify.
testify
 To be complete in itself does not mean Relates to title to Relates to any
that the declaration must recite property interest
everything that constituted the res
gestae of the subject of his statement,
Admission need not Declaration must be
but that his statement of any given fact be against the against the interest
should be a full expression of all that he admitter’s interest of the declarant
intended to say as conveying his
meaning in respect of such fact.  “Declaration against interest” has been
 A dying declaration may be oral or expanded to include all kinds of interest, that
written or made by signs which could be is, pecuniary, proprietary, moral or even
penal. The confession of a person who made
interpreted and testified to by a witness
a declaration against his own interest (having
thereto. been missing since his abduction, cannot be
 A dying declaration may be attacked on called upon to testify definitely), is admissible
the ground that any of the requisites for in evidence because no sane person will be
its admissibility are not present and the presumed to tell a falsehood to his own
same may be impeached in the same detriment. (People vs. Bermal, June 19,
manner as the testimony of any other 1997)
witness on the stand.
 If the declarant does not die, the C. ACT OR DECLARATION ABOUT
declaration would not be admissible PEDIGREE (Sec. 39):
under this rule but considered as part of
the res gestae. Requisites:
 Best evidence rule not applicable to 1. The actor or declarant is dead or
dying declaration. unable to testify;
 Dying declaration favorable to the 2. The act or declaration is made by a
accused is admissible. person related to the subject by birth
 Dying declaration is not considered a
or marriage;
confidential communication between
spouses.
3. The relationship between the
declarant/actor and the subject is
shown by evidence other than such
act/declaration; and
B. DECLARATION AGAINST INTEREST 4. The act/declaration was made ante
(Sec. 38) litem motam or prior to the
controversy.
Requisites:
1. Declarant is dead or unable to Pedigree includes relationship, family
testify; genealogy, birth, marriage, death, the
2. Against the interest of the declarant; dates when and the places where these
3. That at the time he made said facts occurred, the names of the
declaration, the declarant was relatives, and facts of family history
aware that the same was contrary to intimately connected with pedigree.
his interest.
General Rule: Where the party claiming
Distinctions: seeks recovery against a relative
Admission By Declaration Against common to both claimant and declarant,
Privies Interest but not from the declarant himself or the
One of three Exception to declarant’s estate, the relationship of the

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 2010 REMEDIAL LAW

declarant to the common relative may

not be proved by the declaration itself.  The definite opinion held about a person
in the community in which he lives.
Exception: Where it is sought to reach  The general or substantially undivided
reputation.
the estate of the declarant himself and
 Need not be unanimous. arellano law
not merely to establish a right through
his declaration to the property of some
What Common Reputation May Be
other members of the family. (Tison vs. CA,
276 SCRA 582) Admitted To Prove:
1. Matters of public interest more than
D. FAMILY TRADITIONS (Sec. 40) 30 years old (considered ancient);
2. Matters of general interest more
Requisites for Admissibility of than 30 years old;
Hearsay Evidence as to Family 3. Matters respecting marriage or
Reputation or Tradition Regarding moral character and related facts;
Pedigree: and
It is necessary that: 4. Individual moral character.
1. The witness testifying thereto must
be a member, by consanguinity or  The 30-year period does not apply to
affinity, of the same family as the matters respecting marriage and moral
character.
subject; and
Evidence of Negative Good Repute
2. Such reputation or tradition must
Where the foundation proof shows that
have existed in that family ante
the witness was in such position that he
litem motam.
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
Distinctions:
that the witness had heard nothing
Act Or Declaration Family Reputation against the person.
About Pedigree or Tradition
Regarding Pedigree
F. RES GESTAE (Sec. 42)
Witness need not be a Witness is a member of
member of the family the family
 Literally means “Things Done”
Testimony is about what Testimony is about
 Includes the circumstances, facts
declarant, dead or family reputation or
unable to testify, has tradition covering and declarations incidental to the
said concerning the matters of pedigree main fact or transaction necessary
pedigree of the to illustrate its character and also
declarant’s family
includes acts, words or declarations
which are closely connected
E. COMMON REPUTATION (Sec. 41) therewith as to constitute part of the
transaction.
Requisites:
1. The facts must be of public or Types of Res Gestae:
general interest; 1. Spontaneous Statements (First
2. That the common reputation must Sentence, Sec. 42) – statements
have been ancient or for more than made by a person while a startling
30 years (no such requirement in occurrence is taking place or
cases of proving marriages and immediately prior or subsequent
moral character); thereto with respect to the
3. That the reputation must have been circumstances thereof.
existing previous to the controversy;
and
4. The common reputation must be Requisites:
among people who had an a. There must be a startling
adequate opportunity of observing occurrence; and
the person’s conduct.

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 2010 REMEDIAL LAW

b. While a startling occurrence is attacks was committed

taking place or immediately prior Justification in the Trustworthiness based
or subsequent thereto, a spontaneity of the upon its being given an
statement has been made; statement awareness of impending
death
c. Statement must relate to the
circumstances of the startling
occurrence. Statement must be
spontaneous. G. ENTRIES IN THE COURSE OF
2. Verbal Acts (Second Sentence, BUSINESS (Sec. 43)
Rule 42) – statements
Requisites:
accompanying an equivocal act
1. Entrant must be deceased or unable
material to the issue and giving it a
to testify;
legal significance.
2. Entries were made at or near the
Requisites: time of the transaction to which they
1. Act or occurrence refer;
characterized must be 3. Entrant was in a position to know
equivocal; the facts stated in the entries;
2. Such act must be material 4. Entries were made by entrant in his
to the issue; professional capacity of his duty;
3. Statements must and
accompany the equivocal act; 5. Entries were made in the ordinary or
and regular course of business or duties.
4. Statements give legal
significance to the equivocal act.  Both official and business records are
only prima facie evidence.
 If the person making the entry is still
alive, use the record to refresh his
memory. (Rule 132, Sec. 16)
Distinctions  A writing or document made
Verbal Acts Spontaneous contemporaneously with a transaction in
Statement which are evidenced facts pertinent to
The res gestae is the The res gestae is the an issue, when admitted as proof of
equivocal act startling occurrence those facts, is ordinarily regarded as
more reliable proof and of greater
Verbal act must be Statements may be
probative force than the oral testimony
contemporaneous with made prior, while or
or must accompany the immediately after the of a witness as to such facts based
equivocal act startling occurrence upon memory and recollection. (PAL vs.
Ramos, March 23, 1992)
Statements must explain Statements need not
the equivocal act and explain the principal fact
give it a legal H. ENTRIES IN OFFICIAL RECORDS
significance (Sec. 44)

Requisites:
Distinctions 1. The entries were made by:
Res Gestae In Dying Declarations a. A public officer in the
Connection With A performance of his duties; or
Homicidal Act b. A person in the performance
May be made by the Can be made only by of a duty specially enjoined by
accused himself after or the victim law;
during the killing or that 2. Entrant has personal knowledge of
of a 3rd person the facts stated by him or such facts
Res Gestae In Dying Declarations were acquired by him from reports
Connection With A made by persons under a legal duty
Homicidal Act to submit the same; and
May precede Made only after the 3. Such entries were duly entered in a
,accompany or be made homicidal attacks has regular manner in the official
after the homicidal been committed
records.

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 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., 409 SCRA 43)
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.
I. 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.
e.g., NEDA reports, part of the
newspaper which reports the prices of
shares
 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. (Meralco vs.
Quisumbing, 336 SCRA 172)
J. LEARNED TREATISES (Sec. 46)
Requisites for Admissibility of
Hearsay Evidence as to Learned
Treatises (used to prove unwritten
foreign law):
2010 REMEDIAL LAW
1. If the court takes judicial notice that
the writer of the statement in the
treatises, periodical or pamphlet is
recognized in his 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.
K. 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 non-hearsay, out of court
statements;
 operative acts which give rise to
legal consequences.
7. OPINION RULE
General Rule: The opinion of a witness is
not admissible.
Exceptions: Admissible opinion evidence
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 2010 REMEDIAL LAW

1. On a matter requiring special establish in any reasonable degree

knowledge, skill, experience or training, the probability or improbability of the
which he is shown to possess (Rule 130, offense charged.
Sec. 49);
2. The identity of a person about whom Note, However: (exception to the
he has adequate knowledge (Rule 130, exception)
Sec. 50[a]); 1. Proof of the bad character of the victim
3. A handwriting with which he has in a murder case is not admissible if the
sufficient familiarity (Rule 130, Sec. 50[b]); crime was committed through treachery
4. The mental sanity of a person with and premeditation (People vs. Soliman,
101 Phil. 767)
whom he is sufficient acquainted (Rule 2. In prosecution for rape, evidence of
130, Sec. 50[c]); or complainant’s past sexual conduct,
5. The witness’ impression of the opinion thereof or of his/her reputation
emotion, behavior, condition or shall not be admitted unless, and only to
appearance of a person. (Rule 130, Sec. the extent that the court finds that such
50[d]) evidence is material and relevant to the
case (Rape Shield, RA 8505 Sec. 6)
 An EXPERT WITNESS is one who
belongs to the profession/calling to which the B. In Civil Cases ((b), Sec. 51)
subject matter of the inquiry relates and who
possess special knowledge on questions on  Only when pertinent
which he proposes to express an opinion. to the issue of character involved in
the case.
There is no definite standard of determining
the degree of skill/knowledge that a witness
must possess in order to testify as an expert. C. Rule 132, Sec. 14. Evidence of good
It is sufficient that the following factors are character of witness. – Evidence of the
present: good character of a witness is not
1. Training and admissible until such character has
education;
2. Particular, first-hand been impeached.
familiarity with the facts of the case;  In both civil and criminal
or cases, the bad moral character of a
3. Presentation of witness may always be proved by either
authorities or standards upon which party (Rule 132, Sec. 11)
his opinion is based.

The question whether a witness is properly Good Moral Character - a character that
qualified to give an expert opinion on measures up as good among the people in
ballistics rests with the discretion of the court. the community in which the person lives, or
(People vs. Abriol, 267 SCRA 327) one that is up to the standard of the average
citizen.
8. CHARACTER EVIDENCE (Sec. 51)
General Rule: Character evidence is NOT
Distinction between the Rule on
admissible. Character in Criminal and Civil
Exceptions: Cases
A. In Criminal Cases: Criminal Cases Civil Cases
1. Accused may prove his good moral It is evidence of the Such evidence is with
character which is pertinent to the good character of the equal good reason
moral trait involved in the offense accused is most not admitted, because
charged. properly and with no presumption would
2. In rebuttal, the prosecution may good reason fairly arise, in the very
prove the bad moral character of the admissible in great proportion of
evidence because such cases, from the
accused which is pertinent if moral
there is a fair and just good character of the
trait is involved in the offense presumption that a defendant, that he did
charged. person of good not commit the
 Hence, prosecution may not initially character would not breach of contract or
attack the character of the accused. commit a crime. civil duty alleged
3. Moral character of the offended against him.
party may be proved if it tends to
Character Reputation

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 2010 REMEDIAL LAW

That which a person It is what a person is 1. To sustain CONVICTION:

or thing really is estimated, said,  Evidence of guilt beyond
supposed, or thought reasonable doubt.
to be by others 2. Preliminary Investigation:
Internal External  Prima Facie Case – engender a
well-founded belief that a crime has
Substance Shadow been committed and that the
Signifies the reality Signifies what is accused is probably guilty thereof
reputed or understood 3. For Issuance of warrant of arrest:
from, or reported to  Probable Cause – that there is
be the reality about a reasonable ground to believe that
person or thing the accused has committed an
offense
It is what a man is Refers to the qualities
morally, and consists one is supposed to
of the qualities which possess; may be HIERARCHY OF EVIDENCE
constitute the one’s estimated or From most burdensome to least:
individual reputed character, in 1. Overwhelming evidence
contradistinction to 2. Proof beyond reasonable doubt
his real character 3. Clear and convincing evidence
4. Preponderance of evidence
5. Substantial evidence
6. Prima facie evidence
RULE 131 7. Probable cause
8. Iota of evidence
BURDEN OF PROOF AND
PRESUMPTIONS Overwhelming Evidence is that which can
never be controverted or overturned by any
other evidence.
BURDEN OF PROOF is the duty of a party
to present evidence of the facts in issue Proof Beyond Reasonable Doubt does not
necessary to establish his claim or defense mean such a degree of proof as, excluding
by the amount of evidence required by law. possibility of error, produces absolute
(Sec. 1, Rule 131) certainty. Moral certainty is only required, or
that degree of proof which produces
Upon Whom Burden of Proof Rests: conviction in an unprejudiced mind. (Rule 134,
A. Civil Cases: Sec. 2)
1. PLAINTIFF has the burden of proof
to show the truth of his allegations if Clear and Convincing Evidence is the
the defendant raises a negative quantum of proof required according to law.
defense.  In Extradition cases, the extradite may be
2. DEFENDANT has the burden of allowed to post bail only upon clear and
proof if he raises an affirmative convincing evidence showing that:
defense on the complaint of the 1. Once allowed to post bail, the
applicant will not be a flight risk or a
plaintiff. danger to the community; and
2. There exist special humanitarian
B. Criminal Cases: and compelling circumstances to justify
 PROSECUTION has the burden of the grant of bail. (Government of Hong
proving guilt of the accused Kong vs. Olalia, Jr., April 19, 2007)
because of the presumption of
innocence. Preponderance of Evidence is that which
is more convincing and more credible than
Degree of Proof Necessary to Meet the one offered by the adverse party.
Burden Of Proof:
A. Civil Cases: Substantial Evidence is such relevant
 Preponderance of evidence evidence as a reasonable mind might accept
as adequate to support a conclusion. (Rule
B. Criminal Cases: 133, Sec. 5)

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 2010 REMEDIAL LAW

Burden Of Proof Burden Of

Prima Facie Evidence is that which, Evidence
standing alone, is sufficient to maintain proof
Generally Generally
of a matter unless controverted by a determined by the determined by the
superior evidence. pleadings filed by developments of the
Note: In Extradition proceedings, the quantum of the parties. trial, or by the
evidence required is only prima facie evidence;
provisions of
but in order that a petition for bail therein be
substantive law or
granted, clear and convincing evidence is
necessary. procedural rules
which may relieve
Iota Of Evidence (Scintilla of Evidence) – the party from
e.g., Circumstantial evidence (Rule 134, Sec. 4) presenting evidence
on the facts alleged.
BURDEN OF EVIDENCE
 The logical necessity of a party, during a SWEETHEART DEFENSE
particular time of the trial, to create a An admission of carnal knowledge of the
prima facie case in his favor or to victim and consequently places on the
destroy that created against him by accused the burden of proving the supposed
presenting evidence. relationship by substantial evidence. (People
vs. Antonio, 430 SCRA 619)

 In both civil and criminal cases, the  As an affirmative defense, sweetheart

burden of evidence lies on the party who defense must be established with convincing
asserts an affirmative allegation. evidence – by some documentary and/or
other evidence of relationship. (People v.
Bautista, 430 SCRA 469)
Upon Whom Burden of Evidence Rests:
PRINCIPLE OF NEGATIVING
A. Civil Cases:
AVERMENTS
1. PLAINTIFF has to prove his
General Rule: Negative allegations need not
affirmative allegations in the
be proved, whether in a civil or criminal
complaint.
action.
2. DEFENDANT has to prove the
Exception: Where such negative allegations
affirmative allegations in his
are essential parts of the cause of action or
counterclaim and his affirmative
defense in a civil case, or are essential
defenses.
ingredients of the offense in a criminal case
or defenses thereto.
B. Criminal Cases:
1. PROSECUTION has to prove its  HOWEVER, in civil cases, even if the
affirmative allegations in the negative allegation is an essential part of the
information regarding the elements cause of action or defense, such negative
of the crime as well as the attendant allegation does not have to be proved if it is
circumstances. only for the purpose of denying the existence
2. DEFENSE has to prove its of a document which should properly be in
affirmative allegations regarding the the custody of the adverse party.
existence of justifying or exempting  In criminal cases, it is not incumbent upon
the prosecution to adduce positive evidence
circumstances, absolutory causes or
to support a negative averment the truth of
mitigating circumstances. which is fairly indicated by established
circumstances and which, if untrue, could
Distinctions: readily be disproved within the defendant’s
Burden of Proof Burden of possession or control.
Evidence
PRESUMPTION is an inference of the
Lies on the same Shifts from party to
existence or non-existence of a fact which is
party all throughout party, depending
the proceeding and upon the exigencies
permitted to be drawn from the proof of
does not shift. of the case, in the other facts.
course of the trial. Classification of Presumptions:

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 2010 REMEDIAL LAW

1. Presumption of Law (Presumption a. Non-owner transferor who

in Juris) is a deduction which the law later acquires title passes ownership to
expressly directs to be made from the transferee by operation of law (Art.
particular facts. 1434, NCC);
2. Presumption of Fact (Presumption b. Agent who alienates can not
in Hominis) is a deduction which reason claim title against the transferee (Art.
draws from facts proved without an 1435, NCC);
express direction from the law to that c. A lessee or a bailee is
effect. estopped from asserting title to the thing
 Presumptions of facts are borne by reason leased or received, as against the lessor
through human experience or bailor. (Art. 1436, NCC);
d. In a contract between 3rd
Distinctions: persons concerning immovable property,
Presumption of Law Presumption of Fact one of them is misled by a person with
Certain inference A discretion is vested respect to the ownership or real right
must be made in the tribunal as to over the real estate, the latter is
whenever the facts drawing the inference precluded from asserting his legal title or
appear which furnish interest therein, provided all these
the basis of the requisites are present:
inference 1. Fraudulent representation or
Reduced to the fixed Derived wholly and wrongful concealment of facts is
rules and form part of directly from the known to the party estopped;
the system of circumstances of the 2. Party precluded must intend that the
jurisprudence particular case by other should act upon the facts as
means of the
common experience
misrepresented;
of man 3. Party misled must have been
unaware of the true facts; and
4. Party defrauded must have acted in
Kinds of Presumptions of Law:
accordance with the
1. Conclusive Presumption (juris et
misrepresentation. (Art. 1437, NCC)
de jure) which is not permitted to be
e. One who has allowed another to assume
overcome by any proof to the contrary.
apparent ownership of personal property
2. Rebuttable Presumption (juris
for the purpose of making any transfer
tantum) is that which the law permits to
of it, cannot, if he received the sum for
be overcome or contradicted by proofs to
which a pledge has been constituted,
the contrary, otherwise, the same remains
set up his own title to defeat the pledge
satisfactory and is considered sufficient
of the property, made by the other to a
evidence of the fact in dispute.
pledgee who received the same in good
faith and for value. (Art. 1438 NCC)
Classes of CONCLUSIVE
PRESUMPTIONS: DISPUTABLE PRESUMPTIONS
1. Estoppel In Pais (Rule 131, Sec. 2[a]) – (See Rule 131 , Sec. 3)
Whenever a party has, by his own
declaration, act, or omission, NO PRESUMPTION OF LEGITIMACY OR
intentionally and deliberately led another ILLEGITIMACY (Rule 131, Sec. 4)
to believe a particular thing true, and to There is no presumption of legitimacy or
act upon such belief, he cannot, in any illegitimacy of a child born three hundred
litigation arising out of such declaration, days following the dissolution of the
act or omission, be permitted to falsify it. marriage or the separation of the spouses.
2. Estoppel by Deed (Rule 131, Sec. 2[b]) Whoever alleges the legitimacy or
– The tenant is not permitted to deny the illegitimacy of such child must prove his
title of his landlord at the time of the allegation.
commencement of the relation of
landlord and tenant between them.

Statutory Instances of Estoppel:

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RULE 132
PRESENTATION OF
EVIDENCE
A. EXAMINATION OF 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: To 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.
 The rules now require even the statements
of the judge be recorded.
Obligation 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;
2010 REMEDIAL LAW
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:
 Republic Act 1379, Section 8 – the law
providing for the forfeiture of unlawfully
acquired property.
 Presidential Decree 749 – in
prosecutions for bribery and graft.
ORDER IN THE EXAMINATION OF AN
INDIVIDUAL WITNESS
a. Direct examination by the proponent;
b. Cross-examination by the opponent;
c. Re-direct examination by the proponent;
d. Re-cross-examination by the opponent.
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)
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 cross-examination of a witness is a
prerogative of the party against whom the
witness is called. (People vs. Fabre, 385
SCRA 185)
 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)
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
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matters inquired about in the direct
examination.
Witness may be cross-examined by the
adverse party—
a. As to any matters stated in the direct
examination, or connected therewith;
and
b. With sufficient fullness and freedom, to
test his accuracy and truthfulness and
freedom from interest or bias, or the
reverse; and
c. To elicit all important facts bearing upon
the issue.
RE-DIRECT EXAMINATION (Rule 132, Sec. 7)
 To explain or supplement his
answers given during the cross-
examination.
 Court may allow questions on
matters not dealt with during the cross-
examination.
RE-CROSS-EXAMINATION (Rule 132, Sec. 8)
 On matters stated in his re-direct
examination. Court may allow questions
on other matters.
RECALLING WITNESS (Rule 132, Sec. 9)
 After the examination of a witness by
both sides has been concluded
 The witness cannot be recalled without
leave of the court. The court will grant or
withhold leave in its discretion, as the
interests of justice may require.
Note: A witness can be recalled only
with leave of the court.
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:
a)Cross examination;
b)Preliminary matters;
c)Difficulty in getting direct and intelligible
answers from a witness who is:
i. Ignorant, or
ii. A child of tender years, or
iii. Feeble mind, or
iv. A deaf-mute;
2010 REMEDIAL LAW
d)Unwilling or hostile witness
e)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.
IMPEACHMENT OF ADVERSE PARTY'S
WITNESS (Rule 132, Sec. 11)
A witness may be impeached by the party
against whom he was called, by:
a. Contradictory evidence;
b. By evidence that his general reputation
for truth, honesty, or integrity is bad; or
c. By evidence that he has made at other
times statements inconsistent with his
present testimony
 But not by evidence of particular
wrongful acts, except that it may be
shown by the examination of the
witness, or the record of the judgment,
that he has been convicted of an
offense.
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)
a. An unwilling; or
b. hostile witness; or
c. 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.
Grounds for Declaring a Witness
Unwilling or Hostile:
a. Adverse interest;
b. Unjustified reluctance to testify; or
c. 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;
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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.
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.
3. If the statements be in writing they
must be shown to the witness before
any question is put to him concerning
them.
WHEN WITNESS MAY REFER TO
MEMORANDUM (Rule 132, Sec. 16)
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.
2 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
2010 REMEDIAL LAW
recall the acts involved and is entitled to
lesser weight.
 Allowing a witness to refer to her notes
rests on the sound discretion of the trial court.
(People vs. Plasencia, November 7, 1995)
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.
 Whenever a writing is shown to
a witness, it may be inspected by the
adverse party. (Rule 132, Sec. 18)
B. AUTHENTICATION AND PROOF OF
DOCUMENTS
CLASSES OF DOCUMENTS (Rule 132, Sec.
19)
For the purpose of their presentation in
evidence, documents are either:
1. Public documents are:
a) The written official acts, or records of
the official acts of the sovereign
authority, official bodies and tribunals,
and public officers, whether of the
Philippines, or of a foreign country;
b) Documents acknowledged before a
notary public except last wills and
testaments; and
 Last will and testaments are
excluded as public documents
because they have their own
requirements over and above
acknowledgment.
 Affidavits are not public documents
because they only require a jurat.
c) Public records, kept in the
Philippines, of private documents
required by law to be entered therein.
2. All other writings are private.
 If a document is intended by law to be a part
of public or official record, then such private
document becomes a public document. E.g.
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 2010 REMEDIAL LAW

filing of document with BIR turns it into a b. has seen the writing purporting to be
public document. (Monteverde vs. People,
his upon which the witness has
387 SCRA 196)
acted or been charged; and
Distinctions: c. has thus acquired knowledge of the
handwriting of such person.
Public Documents Private Documents
2. By a comparison, made by the witness
Genuineness and Must prove or the court, with writings admitted or
authenticity genuineness and due treated as genuine by the party against
presumed. execution. whom the evidence is offered, or proved
Binding against the Binds only parties to to be genuine to the satisfaction of the
parties and 3rd the document. judge.
persons. 3. By expert evidence. (Rule 130, Sec.49)
Certain transactions
are required to be in a Requisites for admissibility of private
public document (e.g. document:
donation of real 1. Offered as authentic – due execution
property). and authenticity must be proved;
2. Either by anyone who saw the
PROOF OF PRIVATE DOCUMENT document executed or written;
Before any private document offered as 3. Evidence of the genuineness of the
authentic is received in evidence, its due signature or handwriting of the maker;
execution and authenticity must be proved 4. Any witness who believes it to be the
either: handwriting of such person because;
1. By anyone who saw the document 5. He has seen the person write, or has
executed or written; or seen writing purporting to be his;
2. By evidence of the genuineness of 6. Upon which the witness has acted or
the signature or handwriting of the been charged;
maker. 7. Has thus acquired knowledge of the
Any other private document need only handwriting of such person;
be identified as that which it is claimed to be. 8. A comparison, made by the witness or
(Rule 132, Sec. 20) the court, with writings;
9. Admitted or treated as genuine by the
WHEN AUTHENTICATION OF party against whom the evidence is
DOCUMENT NOT REQUIRED offered, or proved to be genuine to the
1. When writing is an ancient document satisfaction of the judge.
(Rule 132, Sec. 21)

Requisites to be considered an Ancient PUBLIC DOCUMENTS AS EVIDENCE (Rule

Document:
i. More than 30 years old;
ii. Found where it should be; and
iii. Unblemished by alteration 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)
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;
132, Sec. 23)
a. 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.
b. 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 RECORD (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

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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.
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.
WHAT ATTESTATION OF COPY MUST
STATE (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; and
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)
PUBLIC RECORD OF A PRIVATE
DOCUMENT
Public record of a private document may be
proved by:
a. The original record; or
b. 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)
PROOF OF LACK OF RECORD (Rule 132,
Sec. 28)
1. A written statement, signed
by an officer having the custody of an
2010 REMEDIAL LAW
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.
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)
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.
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.
Failure to do otherwise will render the
same inadmissible in evidence.
 There shall be no difference between sealed
and unsealed private documents insofar as
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their admissibility as evidence is concerned.
(Rule 132, Sec. 32)
DOCUMENTS WRITTEN 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.
C. OFFER AND OBJECTION
OFFER OF EVIDENCE (Rule 132, Sec. 34)
The court shall consider no evidence
which has not been formally offered. The
purpose for which the evidence is offered
must be specified.
Note: Failure to do so will render the
evidence excluded.
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.
WHEN OBJECTION TO EVIDENCE
OFFERED MUST BE MADE (Rule 132, Sec.
36)
a. Orally – immediately after the offer is
made.
b. In writing – within 3 days after notice
of the offer, unless a different period is
allowed by the court.
c. 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):
1. FORMAL – goes into the formalities
required by law. e.g., leading;
2010 REMEDIAL LAW
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)
a. In the course of the examination of a
witness;
b. Objection has been made;
c. Reasonably apparent that the questions
being propounded are of the same class
as those to which objection has been
made; and
d. Adverse party records his continuing
objection to such class of questions.
RULING OF THE COURT AFTER
OBJECTION (Rule 132, Sec. 38)
 Must be given immediately, unless it
desires to take reasonable time to
inform itself on the question presented.
 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 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.
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.
 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.
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 Mere fact that a document is marked as an exhibit

does not mean it has been offered as evidence.
TENDER OF EXCLUDED EVIDENCE Marking at the pre-trial was only for the purpose of
(a.k.a. Proffer of Evidence a.k.a. Offer of identifying them at that time. However, if an exhibit
Proof) (Rule 132, Sec. 40) has been duly identified by testimony, duly
How Done: recorded and has itself been incorporated into the
records (i.e., recital of the contents of the exhibit),
1. Object or Documentary Evidence – it may still be admitted as evidence against the
have the same attached or made part of adverse party even if there be no formal offer
the record. of exhibits. (Tabuena vs. CA, 196 SCRA 650).
2. Testimonial – state for the record:
a. The name and other
personal circumstances of the RULE 133
witness; and WEIGHT AND
b. The substance of the
proposed testimony.
SUFFICIENCY OF
EVIDENCE
When evidence considered offered:
 The court shall consider no evidence, even an
extra-judicial confession, which was not formally Distinction:
offered the mere fact that evidence has been Admissibility Weight and
identified and marked in the course of the
examination of a witness, without the contents
Sufficiency
being recited in his testimony, does not mean that The following Depends upon the
it has been formally offered as evidence. requisites must be appreciation of the
Identification of documentary evidence is done in present for an judge. The
the course of the trial and is accompanied by the evidence to be appreciation of the
marking of the evidence as an exhibit, while the
formal offer of documentary evidence is done only
admissible: weight of evidence
when the party rests its case (People vs. Franco, 1. Rel by the trial courts is
269 SCRA 211). evant always conclusive
 Where the genuineness and due execution of 2. Co upon the appellate
documents of an instrument attached to a mpetent court.
complaint are deemed admitted by failure to 3. Ide
specifically deny it under oath, such instruments
are considered as evidence although they were ntified*
not formally offered. (Philippine Bank of 4. Aut
Commerce vs. CA, 195 SCRA 567) henticated*
 Even if there was no formal offer made, evidence 5. Dul
can be considered when the following requisites y Marked*
are present: (1) duly identified by testimony, and
(2) incorporated in the records of the case.
6. For
(Ramos vs. Dizon, 498 SCRA 17) mally Offered

Note: Rule 8, Sec. 8. How to contest such  Not applicable in Testimonial Evidence
documents. — When an action or defense
is founded upon a written instrument, copied
in or attached to the corresponding pleading
as provided in the preceding section, the
genuineness and due execution of the In determining where the preponderance
instrument shall be deemed admitted unless or superior weight of evidence on the
the adverse party, under oath, specifically issues involved lies, the court may
denies them, and sets forth what he claims consider:
to be the facts; but the requirement of an 1. All the facts and circumstances of the
oath does not apply when the adverse party case;
does not appear to be a party to the 2. The witnesses' manner of testifying;
instrument or when compliance with an 3. Their intelligence;
order for an inspection of the original 4. Their means and opportunity of
instrument is refused. knowing the facts to which they are
 Actionable documents are admissible testifying;
in evidence even if not formally 5. The nature of the facts to which they
offered. testify;

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6. The probability or improbability of their SUBSTANTIAL EVIDENCE – that amount

testimony;
7. Their interest or want of interest;
8. Their personal credibility so far as the
same may legitimately appear upon
the trial;
9. Number of witnesses, though the
preponderance is not necessarily with
the greater number; and (Rule 133, Sec.
1)
10. Cause of action on the ground of
reformation of instrument must be
proven by clear and convincing
evidence.
 In a criminal case, the accused is entitled to
an acquittal, unless his guilt is shown beyond
reasonable doubt.
 Proof beyond reasonable doubt does not
mean such a degree of proof 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)
 A defense of self-defense must be proven by
clear and convincing evidence.
 An extrajudicial confession made by an
accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of
corpus delicti. (Rule 133, Sec. 3)
 The basic fundamental rule in criminal cases
is that “the testimony must not only credible
by itself but must emanate from a credible
witness.” (People vs. Suarez, 456 SCRA
333)
 In cases against judges which pray for their
suspension, dismissal or disbarment, the
weight of evidence requires proof beyond
reasonable doubt. (Reyes vs. Mangino,
January 31, 2005)
of relevant evidence which a reasonable
mind might accept as adequate to justify a
conclusion. (Rule 133, Sec. 5)
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,
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.
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.
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.

CIRCUMSTANTIAL EVIDENCE, WHEN

SUFFICIENT (Rule 133, Sec. 4)
Circumstantial evidence is sufficient for
conviction if;
1. There is more than one circumstance;
2. The facts from which the inferences are
derived are proven; and
3. The combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.
 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)

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