7 2020 Up Boc Remedial Law Reviewer.pdf

  • Uploaded by: Yee Almeda
  • 0
  • 0
  • February 2021
  • PDF

This document was uploaded by user and they confirmed that they have the permission to share it. If you are author or own the copyright of this book, please report to us by using this DMCA report form. Report DMCA


Overview

Download & View 7 2020 Up Boc Remedial Law Reviewer.pdf as PDF for free.

More details

  • Words: 262,258
  • Pages: 533
Loading documents preview...
U.P. LAW BOC

REMEDIAL LAW

U.P. LAW BOC

REMEDIAL LAW

U.P. LAW BOC

REMEDIAL LAW

U.P. LAW BOC

REMEDIAL LAW

TABLE OF CONTENTS

CIVIL PROCEDURE ...................................................1 I. A.

B.

C.

D.

E.

CIVIL PROCEDURE ..................................... 2 GENERAL PRINCIPLES IN REMEDIAL LAW ...................................................................... 2 1. Distinguish: Substantive Law and Remedial Law .............................................................. 2 2. Rule-Making Power of the Supreme Court 2 3. Nature of Philippine Courts ....................... 3 JURISDICTION OF COURTS ....................... 5 1. Classification of Jurisdiction ...................... 5 2. Doctrines of Hierarchy of Courts and Continuity of Jurisdiction ............................. 6 3. Jurisdiction Of Philippine Courts ............... 6 4. Aspects of Jurisdiction ............................ 15 5. Distinguish: Error of Jurisdiction and Error of Judgment ................................................... 19 6. Distinguish: Jurisdiction and Venue ........ 20 7. Jurisdiction over Small Claims, Rules on Summary Procedure, Brgy. Conciliation ... 20 CIVIL PROCEDURE ................................... 22 1. General Provisions .................................. 22 2. Actions .................................................... 22 3. Cause Of Action ...................................... 26 4. Parties To Civil Actions ........................... 29 5. Venue ...................................................... 36 6. Pleadings ................................................ 38 7. Summons ................................................ 65 8. Motions ................................................... 72 9. Dismissal Of Actions ............................... 77 10. Pre-Trial .............................................. 80 11. Intervention ......................................... 87 12. Subpoena ........................................... 89 13. Computation Of Time .......................... 91 14. Modes Of Discovery ........................... 92 15. Trial ................................................... 103 16. Demurrer To Evidence ...................... 109 17. Judgments And Final Orders ............ 110 18. Post-Judgment Remedies ................ 116 19. Execution, Satisfaction, And Effect Of Judgments ............................................... 147 PROVISIONAL REMEDIES ...................... 167 1. Nature And Purpose ............................. 167 2. Jurisdiction Over Provisional Remedies .. 168 3. Preliminary Attachment ......................... 168 4. Preliminary Injunction ............................ 175 5. Receivership ......................................... 179 6. Replevin ................................................ 182 7. Provisional Remedies And Interim Reliefs Under Special Laws And Rules ............... 186 SPECIAL CIVIL ACTIONS ........................ 187 1. Nature Of Special Civil Actions ............. 187

2. Distinguish: Ordinary Civil Actions And Special Civil Actions ................................ 187 3. Jurisdiction And Venue ......................... 188 4. Interpleader ........................................... 188 5. Declaratory Reliefs And Similar Remedies 190 6. Review Of Judgments And Final Orders Or Resolution Of The Commission On Elections And The Commission On Audit ............... 194 7. Certiorari, Prohibition, And Mandamus .... 195 8. Quo Warranto ........................................ 201 9. Expropriation ......................................... 204 10. Foreclosure Of Real Estate Mortgage .......................................................... 210 11. Partition ............................................. 216 12. Forcible Entry And Unlawful Detainer ...... 219 13. Contempt .......................................... 226 NOTE: PARTS F-H ARE UNDER SPECIAL PROCEDURE, CRIMINAL PROCEDURE, AND EVIDENCE. ..................... 230 I.

J.

K.

L.

REVISED RULES ON SUMMARY .................. PROCEDURE ................................................. .................................................................. 230 1. Cases Covered By The Rule ................. 230 2. Effect Of Failure To Answer .................. 231 3. Preliminary Conference And Appearances Of Parties ................................................. 231 4. Prohibited Pleadings And Motions ........ 232 5. Appeal ................................................... 232 KATARUNGANG PAMBARANGAY ........ 233 1. Cases Covered ..................................... 233 2. Subject Matter For Amicable Settlement 233 3. Venue .................................................... 233 4. When Parties May Directly Go To Court 234 5. Execution .............................................. 234 6. Repudiation ........................................... 235 RULES OF PROCEDURE FOR SMALL CLAIMS CASES .......................................................... 235 1. Scope And Applicability Of The Rule ............. 235 2. Commencement Of Small Claims Action; Response ................................................ 236 3. Prohibited Pleadings And Motions .............. .............................................................. 238 4. Appearances ......................................... 238 5. Hearing; Duty Of The Judge ................. 238 6. Finality Of Judgment ............................. 239 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES .......................... 239 1. Scope And Applicability Of The Rule .... 239 2. Civil Procedure ...................................... 239

U.P. LAW BOC

3. 4. 5. M. 1.

2. 3. 4. 5.

Special Proceedings ............................. 244 Criminal Procedure ............................... 247 Evidence ............................................... 251 ALTERNATIVE DISPUTE RESOLUTION 251 Types Of Processes And Procedures In Adr; Comparison With Court-Annexed Mediation 252 Domestic Arbitration .............................. 252 Judicial Review Of Arbitral Awards ....... 253 Appeal From Court Decisions On Arbitral Awards .................................................. 254 Special Rules Of Court On ADR ........... 254

REMEDIAL LAW

F.

2. 3. 4. G.

Time within which Claims shall be filed; Exceptions ............................................. 291 Statute of Non-Claims ........................... 291 Claim of Executor or Administrator against the Estate .............................................. 293 Payment of Debts .................................. 294 ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS ...................................................... 298

1. 2.

SPECIAL PROCEEDINGS .....................................267 II. SPECIAL PROCEEDINGS ....................... 268 A. SETTLEMENT OF ESTATE OF DECEASED PERSONS ............................................................. 268 1. Which Court has Jurisdiction ................ 269 2. Venue in Judicial Settlement of Estate . 269 3. Extent of Jurisdiction of Probate Court . 270 4. Powers and Duties of a Probate Court . 271 B. SUMMARY SETTLEMENT OF ESTATES ............ 271 1. Extrajudicial Settlement by Agreement Between Heirs; When Allowed ................ 271 2. Two-Year Prescriptive Period ............... 272 3. Affidavit of Self-Adjudication by Sole Heir ... .............................................................. 273 4. Summary Settlement of Estates of Small Value; When Allowed .............................. 273 5. Remedies of Aggrieved Parties after Extrajudicial Settlement of Estate ............ 274 C. PRODUCTION AND PROBATE OF WILL .............. 276 1. Nature of Probate Proceedings ............. 276 2. Who May Petition For Probate; Persons Entitled To Notice .................................... 277 D. ALLOWANCE OR DISALLOWANCE OF WILL ....... 277 3. Contents of petition for allowance of will ..... .............................................................. 278 4. Grounds for Disallowing a Will .............. 279 5. Reprobate; Requisites before Will Proved Outside Allowed in the Philippines; Effects of Probate ............................................. 280 E. LETTERS TESTAMENTARY AND OF ADMINISTRATION 281 1. When and to Whom Letters of Administration are Granted ................... 281 2. Order of Preference .............................. 283 3. Opposition to Issuance of Letters Testamentary; Simultaneous Filing of Petition for Administration ..................... 284 4. Powers and Duties of Executors and Administrators; Restrictions on the Powers ... .............................................................. 285 5. Appointment of Special Administrator ... 288 6. Grounds for Removal of Administrator .. 289

CLAIMS AGAINST THE ESTATE ........................ 290

1.

H.

I.

J.

K.

L.

M.

Actions by and against Executors ......... 298 Requisites before Creditor may bring an Action for Recovery of Property Fraudulently Conveyed by the Deceased .............................................................. 299 DISTRIBUTION AND PARTITION ........................ 300 1. Liquidation ............................................. 300 2. Project of Partition ................................. 300 3. Remedy of an Heir Entitled to Residue but Not Given His Share ............................. 301 4. Instances when Probate Court may Issue Writ of Execution ........................................... 301 TRUSTEES.................................................... 302 1. Distinguish Trustee and Executor/Administrator .......................... 302 2. Conditions of the Bond .......................... 303 3. Requisites for the Removal and Resignation of a Trustee ....................... 303 4. Grounds for the Removal and Resignation of a Trustee ........................................... 303 5. Extent of Authority of Trustee ................ 304 ESCHEAT ..................................................... 304 1. When to File .......................................... 304 2. Requisites for Filing of Petition .............. 305 3. Remedy of Respondent against Petition; Period for Filing a Claim ........................ 305 GUARDIANSHIP ............................................. 305 1. Venue .................................................... 306 2. Appointment of Guardians .................... 306 3. General Powers and Duties of Guardians ... .............................................................. 307 4. Termination of Guardianship ................. 309 ADOPTION .................................................... 310 1. Distinguish Domestic Adoption from Intercountry Adoption ...................................... 310 2. Domestic Adoption ................................ 310 3. Inter-country Adoption ........................... 313 WRIT OF HABEAS CORPUS ............................. 314 1. Contents of the Petition ......................... 316 2. Contents of the Return .......................... 317 3. Peremptory Writ and Preliminary Citation ... .............................................................. 317 4. When Not Proper or Applicable ............. 318 5. When Writ Disallowed or Discharged .... 318 6. Distinguished From Writ of Amparo and Habeas Data ............................................ 319

U.P. LAW BOC

N.

O.

P.

Q.

R.

7. Writ of Habeas Corpus In Relation To Custody of Minors [A.M. No. 03-04-04-SC] ... .............................................................. 319 WRIT OF AMPARO ......................................... 323 1. Coverage .............................................. 323 2. Differences Between Amparo and Search Warrant .................................................... 324 3. Who May File ........................................ 324 4. Contents of Return ................................ 326 5. Effects of Failure to File Return ............ 327 6. Omnibus Waiver Rule ........................... 327 7. Procedure for Hearing ........................... 327 8. Institution of Separate Action ................ 327 9. Effect of Filing a Criminal Action ........... 327 10. Consolidation .................................... 328 11. Interim Reliefs Available to Petitioner and Respondent ............................................. 328 12. Quantum of Proof in Application for Issuance of Writ of Amparo .................................... 329 WRIT OF HABEAS DATA ................................. 330 1. Scope of Writ ........................................ 330 2. Availability of Writ .................................. 330 3. Who May File ........................................ 331 4. Contents of the Petition ......................... 331 5. Contents of Return ................................ 331 6. Instances When Defenses May Be Heard in Chambers ................................................ 332 7. Consolidation ........................................ 332 8. Effect of Filing Criminal Action .............. 333 9. Institution of Separate Action ................ 333 10. Quantum of Proof in Application for Issuance of Writ of Habeas Data ............................ 333 CHANGE OF NAME ........................................ 343 1. Differences Under Rule 103, R.A. No. 9048 and Rule 108 ........................................... 343 2. Grounds for Change of Name ............... 345 ABSENTEES ................................................. 346 1. Purpose of the Rule .............................. 346 2. Who May File; When to File .................. 346

REMEDIAL LAW

B.

C.

D.

CANCELLATION OR CORRECTION OR ENTRIES IN THE CIVIL REGISTRY ................................................ 348

S.

APPEALS IN SPECIAL PROCEEDINGS ............... 351 1. Judgments and Orders for Which Appeal May Be Taken ......................................... 351 2. Modes of Appeal ................................... 352 3. Rule on Advance Distribution ................ 352

E.

CRIMINAL PROCEDURE ......................................353 III. A.

CRIMINAL PROCEDURE ................................. 354 GENERAL MATTERS............................... 354 1. Jurisdiction over Subject Matter and Jurisdiction over Person of the Accused Distinguished ........................................... 354 2. Requisites for Exercise of Criminal Jurisdiction .............................................. 357

F.

3. Jurisdiction of Criminal Courts .............. 357 4. When Injunction May Be Issued To Restrain Criminal Prosecution ............................... 359 PROSECUTION OF OFFENSES ......................... 359 1. Criminal Actions; How Instituted ........... 359 2. Who May File; Crimes That Cannot be Prosecuted De Officio .............................. 360 3. Criminal Actions, When Enjoined .......... 363 4. Control of Prosecution ........................... 363 5. Sufficiency of Complaint or Information 365 6. Designation of Offense .......................... 367 7. Cause of the Accusation ....................... 368 8. Duplicity of the Offense; Exception ....... 369 9. Amendment or Substitution of Complaint or Information ............................................... 369 10. Venue of Criminal Actions ................. 372 11. Intervention of Offended Party .......... 373 PROSECUTION OF CIVIL ACTION ...................... 373 1. Rule on Implied Institution of Civil Action with Criminal Action ........................................ 373 2. When Civil Action May Proceed Independently .......................................... 374 3. When Separate Civil Action Is Suspended . .............................................................. 375 4. Effect of Death of the Accused or Convicted On Civil Action ......................................... 375 5. Prejudicial Question .............................. 376 6. Rule on Filing Fees in Civil Action Deemed Instituted With the Criminal Action ........... 377 PRELIMINARY INVESTIGATION ............. 377 1. Nature of Right ...................................... 377 2. Purposes of Preliminary Investigation ... 378 3. Who May Conduct Determination of Existence of Probable Cause .................. 379 4. Resolution of the Investigating Prosecutor .. .............................................................. 381 5. Review .................................................. 382 6. When Warrant of Arrest May Issue ....... 383 7. Cases Not Requiring Preliminary Investigation nor Covered By the Rule on Summary Procedure ................................ 383 8. Remedies of Accused If There Was No Preliminary Investigation ......................... 384 9. Inquest .................................................. 385 ARREST .................................................... 386 1. Arrest, How Made ................................. 386 2. Arrest without Warrant, When Lawful .... 386 3. Method of Arrest .................................... 390 4. Requisites of a Valid Warrant of Arrest . 392 5. Determination of Probable Cause For Issuance of Warrant of Arrest .................. 392 BAIL .......................................................... 392 1. Nature ................................................... 392 2. When a Matter of Right; Exceptions ...... 393 3. When a Matter of Discretion .................. 394

U.P. LAW BOC

G.

H.

I.

J.

4. Hearing of Application for Bail in Capital Offenses .................................................. 396 5. Guidelines in Fixing Amount of Bail ...... 396 6. When Bail Not Required ....................... 397 7. Increase or Reduction of Bail ................ 397 8. Forfeiture and Cancellation of Bail ........ 398 9. Application not a Bar to Objections on Illegal Arrest, Lack of or Irregular Preliminary Investigation ............................................ 398 ARRAIGNMENT AND PLEA .................... 398 1. How Made ............................................. 399 2. When a Plea of Not Guilty Should Be Entered .................................................... 401 3. When Accused May Enter a Plea of Guilty to a Lesser Offense ..................................... 401 4. Accused Pleads Guilty to Capital Offense; What the Court Should Do ...................... 401 5. Searching Inquiry .................................. 402 6. Improvident Plea of Guilty to a Capital Offense .................................................... 402 MOTION TO QUASH ................................ 403 1. Grounds ................................................ 404 2. Distinguish Motion to Quash from Demurrer to Evidence .............................................. 406 3. Effects of Sustaining the Motion to Quash .. .............................................................. 407 4. Exception to the Rule that Sustaining the Motion is Not a Bar to Another Prosecution .. .......................................................... 408 5. Double Jeopardy ............................... 408 6. Provisional Dismissal ........................ 411 PRE-TRIAL ............................................... 411 1. Matters to Be Considered During Pre-Trial 412 2. What the Court Should Do When Prosecution and Offended Party Agree to the Plea Offered by the Accused ................... 412 3. Pre-Trial Agreement .............................. 413 4. Non-Appearance during Pre-Trial ......... 413 5. Pre-Trial Order ...................................... 413 TRIAL ........................................................ 414 1. Instances When Presence of Accused is Required by Law ........................................... 414 2. Suspension on Account of Absence of Witnesses ................................................ 414 3. Trial in absentia ..................................... 415 4. Remedy When Accused is not Brought to Trial within the Prescribed Period ............ 415 5. Requisites for Discharge of the Accused to Become a State Witness ......................... 416 6. Effects of Discharge of Accused as State Witness .................................................... 416 7. Demurrer to Evidence ........................... 417 8. Guidelines on Continuous Trial (A.M. No. 1506-10-SC) ................................................ 418

REMEDIAL LAW

K.

L.

M.

N.

O.

JUDGMENT .............................................. 421 1. Requisites of a Judgment ...................... 421 2. Contents of Judgment ........................... 422 3. Promulgation of Judgment; Instances of Promulgation of Judgment in Absentia .... 423 4. Instances when Judgment Becomes Final 424 NEW TRIAL OR RECONSIDERATION..... 425 1. Grounds for New Trial ........................... 425 2. Grounds for Reconsideration ................ 425 3. Requisites Before a New Trial May be Granted on Ground of Newly Discovered Evidence .................................................. 425 4. Effects of Granting a New Trial or Reconsideration ....................................... 426 APPEAL .................................................... 427 1. Effect of an Appeal ................................ 427 2. Where to Appeal ................................... 427 3. How Appeal Taken ................................ 427 4. Effect of Appeal by Any of Several Accused .................................................................... 433 5. Grounds for Dismissal of Appeal ........... 434 SEARCH AND SEIZURE .......................... 434 1. Nature of Search Warrant ..................... 434 2. Distinguish From Warrant of Arrest ....... 435 3. Application for Search Warrant; Where Filed ...................................................... 436 4. Probable Cause for Issuance of Search Warrant .................................................... 437 5. Personal Examination by Judge of the Applicant and Witnesses ......................... 437 6. Particularity of Place to Be Searched and Things to Be Seized ................................ 438 7. Personal Property to be Seized ............ 438 8. Exceptions to the Search Warrant Requirement ............................................ 439 9. Remedies From Unlawful Search And Seizure .................................................... 443 10. Cybercrime Warrants ........................ 444 PROVISIONAL REMEDIES IN CRIMINAL CASES .......................................................... 450 1. Nature ................................................... 450 2. Kinds of Provisional Remedies ............. 451

EVIDENCE ............................................................. 453 IV. A. 1. 2. 3. 4. 5.

EVIDENCE ................................................... 454 GENERAL PRINCIPLES........................... 454 Concept of Evidence ............................. 454 Scope and Applicability of the Rules of Evidence .................................................. 454 Distinguish: Proof vs. Evidence ............. 455 Distinguish: Factum Probans v. Factum Probandum .............................................. 455 Admissibility of Evidence ....................... 455

U.P. LAW BOC

6.

B.

C.

D.

E.

F.

Burden of Proof and Burden of Evidence ... .............................................................. 460 7. Presumptions ........................................ 461 8. Construction of the Rules of Evidence .. 465 9. Quantum of Evidence ........................... 466 JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ................................................ 467 1. What Need Not Be Proved .................... 467 2. Matters of Judicial Notice ...................... 467 3. Judicial Admissions ............................... 470 OBJECT (REAL) EVIDENCE.................... 472 1. Nature of object evidence ..................... 472 2. Requisites for Admissibility ................... 472 3. Categories of Object Evidence ............. 473 4. Chain Of Custody In Relation To Sec 21 Of The Comprehensive Dangerous Drugs Act Of 2002 .................................................... 473 5. DNA Evidence ....................................... 474 DOCUMENTARY EVIDENCE ................... 477 1. Meaning of Documentary Evidence ...... 477 2. Requisites for Admissibility ................... 477 3. Original Document Rule ........................ 477 4. Electronic Evidence .............................. 479 5. Parol Evidence Rule ............................. 482 6. Authentication and Proof of Documents ..... .............................................................. 484 TESTIMONIAL EVIDENCE ................................ 487 1. Qualifications of a Witness .................... 487 2. Disqualifications of Witnesses .............. 488 3. Examination of a Witness ..................... 494 4. Admissions and Confessions ................ 502 5. Hearsay Rule ........................................ 507 6. Opinion Rule ......................................... 515 7. Character Evidence .............................. 517 8. Judicial Affidavit Rule [A.M. 12-8-8-SC] 518 OFFER AND OBJECTION ........................ 521 1. Offer of Evidence .................................. 521 2. When to Make an Offer ......................... 522 3. Objection ............................................... 522 4. Repetition of an Objection ..................... 523 5. Ruling .................................................... 523 6. Striking Out an Answer ......................... 524 7. Tender of Excluded Evidence ............... 524

REMEDIAL LAW

U.P. LAW BOC

G.

H.

I.

J.

4. Hearing of Application for Bail in Capital Offenses .................................................. 396 5. Guidelines in Fixing Amount of Bail ...... 396 6. When Bail Not Required ....................... 397 7. Increase or Reduction of Bail ................ 397 8. Forfeiture and Cancellation of Bail ........ 398 9. Application not a Bar to Objections on Illegal Arrest, Lack of or Irregular Preliminary Investigation ............................................ 398 ARRAIGNMENT AND PLEA .................... 398 1. How Made ............................................. 399 2. When a Plea of Not Guilty Should Be Entered .................................................... 401 3. When Accused May Enter a Plea of Guilty to a Lesser Offense ..................................... 401 4. Accused Pleads Guilty to Capital Offense; What the Court Should Do ...................... 401 5. Searching Inquiry .................................. 402 6. Improvident Plea of Guilty to a Capital Offense .................................................... 402 MOTION TO QUASH ................................ 403 1. Grounds ................................................ 404 2. Distinguish Motion to Quash from Demurrer to Evidence .............................................. 406 3. Effects of Sustaining the Motion to Quash .. .............................................................. 407 4. Exception to the Rule that Sustaining the Motion is Not a Bar to Another Prosecution .. .......................................................... 408 5. Double Jeopardy ............................... 408 6. Provisional Dismissal ........................ 411 PRE-TRIAL ............................................... 411 1. Matters to Be Considered During Pre-Trial 412 2. What the Court Should Do When Prosecution and Offended Party Agree to the Plea Offered by the Accused ................... 412 3. Pre-Trial Agreement .............................. 413 4. Non-Appearance during Pre-Trial ......... 413 5. Pre-Trial Order ...................................... 413 TRIAL ........................................................ 414 1. Instances When Presence of Accused is Required by Law ........................................... 414 2. Suspension on Account of Absence of Witnesses ................................................ 414 3. Trial in absentia ..................................... 415 4. Remedy When Accused is not Brought to Trial within the Prescribed Period ............ 415 5. Requisites for Discharge of the Accused to Become a State Witness ......................... 416 6. Effects of Discharge of Accused as State Witness .................................................... 416 7. Demurrer to Evidence ........................... 417 8. Guidelines on Continuous Trial (A.M. No. 1506-10-SC) ................................................ 418

REMEDIAL LAW

K.

L.

M.

N.

O.

JUDGMENT .............................................. 421 1. Requisites of a Judgment ...................... 421 2. Contents of Judgment ........................... 422 3. Promulgation of Judgment; Instances of Promulgation of Judgment in Absentia .... 423 4. Instances when Judgment Becomes Final 424 NEW TRIAL OR RECONSIDERATION..... 425 1. Grounds for New Trial ........................... 425 2. Grounds for Reconsideration ................ 425 3. Requisites Before a New Trial May be Granted on Ground of Newly Discovered Evidence .................................................. 425 4. Effects of Granting a New Trial or Reconsideration ....................................... 426 APPEAL .................................................... 427 1. Effect of an Appeal ................................ 427 2. Where to Appeal ................................... 427 3. How Appeal Taken ................................ 427 4. Effect of Appeal by Any of Several Accused .................................................................... 433 5. Grounds for Dismissal of Appeal ........... 434 SEARCH AND SEIZURE .......................... 434 1. Nature of Search Warrant ..................... 434 2. Distinguish From Warrant of Arrest ....... 435 3. Application for Search Warrant; Where Filed ...................................................... 436 4. Probable Cause for Issuance of Search Warrant .................................................... 437 5. Personal Examination by Judge of the Applicant and Witnesses ......................... 437 6. Particularity of Place to Be Searched and Things to Be Seized ................................ 438 7. Personal Property to be Seized ............ 438 8. Exceptions to the Search Warrant Requirement ............................................ 439 9. Remedies From Unlawful Search And Seizure .................................................... 443 10. Cybercrime Warrants ........................ 444 PROVISIONAL REMEDIES IN CRIMINAL CASES .......................................................... 450 1. Nature ................................................... 450 2. Kinds of Provisional Remedies ............. 451

EVIDENCE ............................................................. 453 IV. A. 1. 2. 3. 4. 5.

EVIDENCE ................................................... 454 GENERAL PRINCIPLES........................... 454 Concept of Evidence ............................. 454 Scope and Applicability of the Rules of Evidence .................................................. 454 Distinguish: Proof vs. Evidence ............. 455 Distinguish: Factum Probans v. Factum Probandum .............................................. 455 Admissibility of Evidence ....................... 455

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

b. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

I. CIVIL PROCEDURE A. GENERAL PRINCIPLES IN REMEDIAL LAW 1. Distinguish: Substantive Law and Remedial Law Substantive law – Creates, defines, and regulates rights and duties concerning life, liberty, or property the violation of which gives rise to a cause of action. [Bustos v. Lucero, G.R. No. L-2068 (1948)] Remedial law – Lays down methods by which the rights and obligations arising from substantive law are protected, enforced, and given effect. [Bustos v. Lucero, G.R. No. L2068 (1948)] Note: Procedural rules are not laws, for they are promulgated by the Supreme Court in their rule-making capacity under the Constitution and do not originate from the legislative [Alvero v. Dela Rosa, G.R. No. L-286 (1946)]. However, procedural rules have the force and effect of law, if not in conflict with positive law, since procedural rules are subordinate to statute. [Inchausti & Co v. De Leon, G.R. No. 7887 (1913)]

2. Rule-Making Power of the Supreme Court Sec. 5(5), Art. VIII of the Constitution provides that: a. The SC shall have the power to promulgate rules concerning: 1. The protection and enforcement of constitutional rights, 2. Pleading, practice, and procedure in all courts, 3. Admission to the practice of law, 4. The Integrated Bar, and 5. Legal assistance to the underprivileged.

The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. [Neypes v. CA, G.R. No. 141524 (2005)] Note that the power to establish procedural rules is no longer shared by the SC with Congress.

a. Limitations on the Rule-Making Power of the Supreme Court The rules of procedure promulgated by the SC must: a. Provide a simplified and inexpensive procedure for speedy disposition of cases, b. Uniform for all courts of the same grade; and c. Not diminish, increase or modify substantive rights. [Sec. 5(5), Art. VIII, Constitution]

b. Power of the SC to Amend and Suspend Procedural Rules General rule: COMPLIANCE Compliance with procedural rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances. [Pilapil v. Heirs of Briones, G.R. No. 150175 (2007)] Exception: AMENDMENT OR SUSPENSION Basis for the SC’s power to amend or suspend its rules: 1. Rule-Making power vested by the Constitution, and 2. Sec. 5(g) of Rule 135: Every court shall have power to amend and control its process and orders so as to make them conformable to law and justice. The power of the SC to suspend its own rules or to exempt a particular case from its operation whenever the purposes of justice require it, cannot be questioned. Substantial rights must reign supreme over technicalities.

Page 2 of 525

U.P. LAW BOC

CIVIL PROCEDURE

The overarching aim of procedure is to achieve substantial justice, hence, the power to suspend if required in order to achieve the latter. [De Guzman v. Sandiganbayan, G.R. No. 103276 (1996)] The constitutional power of the SC to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the ROC. [Pinga v. Heirs of Santiago, G.R. No. 170354 (2006)] Parties praying for a relaxation of procedural rules must show the need for exceptional treatment. [Prieto v. Alpadi Development Corp., G.R. No. 191025 (2013)] What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts [CIR v. Mirant Pagbilao Corp., G.R. No. 159593 (2006)] Reasons which would warrant suspension of the Rules include: 1. Presence of special and compelling circumstances, 2. The merits of the case, 3. A cause not entirely attributable to the fault or negligence of the party favored by the suspension, 4. A lack of any showing that the review sought is merely frivolous or dilatory, 5. A showing that the rights of the other party will not be unjustly prejudiced by the suspension, [Sarmiento v. Zaratan, G.R. No. 167471 (2007)] 6. Transcendental matters of life, liberty or state security, [Mindanao Savings and Loan Association v. Vda. De Flores, G.R. No. 142022 (2005)] 7. To relieve a litigant of an injustice commensurate with his failure to comply with prescribed procedure, or [Cu-Unjieng v. CA, G.R. No. 142022 (2005)] 8. Where substantial and important issues await resolution. [CIR v. Mirant Pagbilao Corp., G.R. No. 159593 (2006)]

REMEDIAL LAW

3. Nature of Philippine Courts a. Meaning of a Court A court is an organ of government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it as well as the public administration of justice. It is also the place where justice is administered [1 Riano 65, 2014 Bantam Ed., citing Black’s Law Dictionary, Am. Jur. and C.J.S.]

b. Distinguish: Court vs. Judge Court Judge Tribunal officially Officer of such assembled under tribunal authority of law A being comparable A physical person to a corporation A judge is a public A court is an office officer [1 Riano 65-66, 2014 Bantam Ed.] A court is an entity possessing a personality separate and distinct from the men who compose or sit on it [People v. Carlos, G.R. No. L-239 (1947)]. Jurisdiction does not attach to the judge but to the court. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it [ABC Davao Auto Supply v. CA, G.R. No. 113296 (1998)]

c. Classification Courts

of

Regular Courts: a. Supreme Court b. Court of Appeals c. Regional Trial Courts d. Metropolitan Trial Courts e. Municipal Trial Courts f. Municipal Circuit Trial Courts

Page 3 of 525

Philippine

U.P. LAW BOC

CIVIL PROCEDURE

Special Courts: a. Sandiganbayan b. Court of Tax Appeals

d. Courts of Original Appellate Jurisdiction

and

A court is one with original jurisdiction when actions or proceedings are originally filed with it.

REMEDIAL LAW

A constitutionally-mandated court refers to a court whose creation by Congress is mandated by a constitutional provision, of which there is only one example: the Sandiganbayan [Sec. 4, Art. XI, Constitution]. While its existence is mandated by the Constitution, its creation was through and by P.D. 1486, issued by President Marcos.

g. Courts of Law and Equity

A court is one with appellate jurisdiction when it has the power of review over the decisions or orders of a lower court. [1 Riano 47, 2016 Bantam Ed.]

Philippine courts are courts of both law and equity. Both legal and equitable jurisdictions are dispensed with in the same tribunal. [US v. Tamparong, 31 Phil 321-327 (1915)]

Appellate jurisdiction refers to a process which is but a continuation of the original suit, not a commencement of a new action [Morales v. CA, G.R. No. 126623 (1997)]

Equity jurisdiction is used to describe the power of the court to resolve issues presented in a case, in accordance with the rules of fairness and justice, and in the absence of a clear, positive law governing such issues. [1 Riano 41, 2016 Bantam Ed.]

e. Courts of General and Special Jurisdiction Courts of general jurisdiction are those with competence to decide on their own jurisdiction and take cognizance of all cases, civil and criminal, of a particular nature. Courts of special/limited jurisdiction are those which have jurisdiction only for a particular purpose or a clothed with special powers for the performance of specified duties beyond which they have no authority of any kind. [1 Riano 47, 2016 Bantam Ed.]

f. Constitutional Courts

and

Statutory

A constitutional court is one created by a direct constitutional provision, an example of which is the SC. Only the SC is a constitutional court. A statutory court is one created by a law other than the Constitution. All other courts are statutory courts. [1 Riano 45-46, 2016 Bantam Ed.]

Equity, which has been aptly described as a “justice outside legality,” is applied only in the absence of, and never against, statutory law. Aequetas nunquam contravenit legis [GF Equity, Inc. v. Valenzona, G.R. No. 156841 (2005)]

h. Principle of Judicial Hierarchy Also known as “The Doctrine of Hierarchy of Courts” General Rule: A case must be filed with the lowest court possible having the appropriate jurisdiction. For example, although the SC, CA, and the RTC have concurrent jurisdiction over certiorari, prohibition, and mandamus, a direct invocation of the SC is improper. A petition must be first made to the lowest court - the RTC. [1 Riano 42, 2016 Bantam Ed] Exception: The Supreme Court may disregard hierarchy of courts if warranted by the following reasons: 1. Where special and important reasons are present,

Page 4 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

2. When dictated by public welfare and policy, 3. When demanded by interest of justice, 4. Where the challenged orders are patent nullities, 5. Where compelling circumstances warrant, and 6. Where genuine issues of constitutionality must be immediately addressed. [1 Riano 44-45, 2016 Bantam Ed] Rationale 1. It would be an imposition upon the limited time of the Court; and 2. It would inevitably result in a delay, in the adjudication of cases, which are remanded or referred to the lower court as the proper forum, or a trier of facts [People v. Azarraga, G.R. No. 187117 (2011)] A disregard of the doctrine of hierarchy of courts warrants, as a rule, the outright dismissal of a petition [De Castro v. Carlos, G.R. No. 194994 (2013)]

i. Doctrine of Non-Interference/ Doctrine of Judicial Stability The Doctrine of Non-Interference/ Doctrine of Judicial Stability holds that courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. [Lapu-Lapu Devt Corp v. Group Management Corp 388 SCRA 493, 508] It also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. [Villamor v. Salas 203 SCRA 540, 543] Note: Such doctrine applies also to administrative bodies. When the law provides for an appeal to the CA or SC from the decision of an administrative body, it means that such body is co-equal with the RTC and is then beyond the control of the latter. [Philippine Sinter Corp v. Cagayan Electric Power and Light Co. Inc., G.R. No. 127371 (2002)]

in consonance with the well-established principle that no man shall be affected by any proceeding to which he is a stranger [Sps. Crisologo v. Omelio, A.M. No. RTJ-12-2321 (2012), citing Sec. 16, Rule 39, and quoting Naguit v. CA, G.R. No. 137675 (2000)]

B.

JURISDICTION OF COURTS

Jurisdiction is the power of the court to hear, try, and decide a case. [Cuenca v. PCGG, 535 SCRA 102] In its expanded concept, it includes the authority of the court to execute its decisions since such is an essential aspect of jurisdiction and is the most important part of litigation [Echegaray v. Sec. of Justice, G.R. No. 132601 (1999)] Note: Jurisdiction is not the authority of the judge to hear a case, but that of the court. Jurisdiction over a case attaches to the court, and not the judge hearing it. It is not the decision rendered, but rather the authority of the court to decide the case.

1. Classification of Jurisdiction a. Distinguish: Appellate Original

Original

and

Appellate

A court is one with appellate jurisdiction when it has the power to review on appeal the decisions or orders of a lower court. [1 Riano 47, 2016 Bantam Ed.] A court is one with original jurisdiction when actions or proceedings may be originally filed with it.

When not applicable The doctrine of judicial stability does not apply where a third party claimant is involved – this is Page 5 of 525

U.P. LAW BOC

b. Distinguish: Special

General

and

General

Special Courts of special jurisdiction are those Courts of general which have jurisdiction are jurisdiction only for a those with particular purpose or competence to clothed with special decide on their own powers for the jurisdiction and take performance of cognizance of all specified duties cases of a particular beyond which they nature. have no authority of any kind. [1 Riano 47, 2016 Bantam Ed.]

c. Distinguish: Concurrent Exclusive

Exclusive jurisdiction precludes the idea of co-existence and refers to jurisdiction possessed to the exclusion of others. [Cubero v. Laguna West Multi-Purpose Cooperatives, Inc., G.R. No. 166833 (2006)]

REMEDIAL LAW

CIVIL PROCEDURE

Exclusive

and

Concurrent/ Coordinate Concurrent jurisdiction is also called coordinate jurisdiction. It is the power of different courts to take cognizance of the same subject matter. Where such jurisdiction exists, the court first taking cognizance of the case assumes jurisdiction to the exclusion of the other courts.

[1 Riano 49, 2016 Bantam Ed.]

2. Doctrines of Hierarchy Courts and Continuity Jurisdiction

of of

Doctrine of Hierarchy of Courts According to the doctrine of hierarchy of courts, in case of concurrence of jurisdiction, a case must be filed first before the lowest court possible EXCEPT if one can advance a special reason which would allow a part to directly resort to a higher court. [1 Riano 43, 2016 Bantam Ed.]

Doctrine of Continuity of Jurisdiction Also known as the doctrine of adherence of jurisdiction. Once jurisdiction is vested, the same is retained up to the end of the litigation. [De la Rosa v. Roldan, G.R. No. 133882 (2006)]

3. Jurisdiction Courts

Of

Philippine

a. Supreme Court General Rule: The SC is not a trier of facts. Exception: The SC can look into the facts of a case: 1. When the conclusion is a finding grounded entirely on speculation, surmises and conjectures; 2. When the inference made is manifestly mistaken, absurd or impossible; 3. Where there is a grave abuse of discretion; 4. When the judgment is based on a misapprehension of facts; 5. When the findings of fact are conflicting; 6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; 7. When the findings are contrary to those of the trial court; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based;

Page 6 of 525

U.P. LAW BOC

CIVIL PROCEDURE

9. When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents; and 10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. [Aklan v. Enero, G.R. No. 178309, January 27, 2009]

Agency, the petition shall only be cognizable by the CA and must be filed there b. c. d. e. f.

EXCLUSIVE ORIGINAL JURISDICTION Petitions for certiorari, prohibition, and mandamus against appellate courts, namely: a. Court of Appeals, [Sec. 17, R.A. 296] b. Commission on Elections, [Sec 7, Art. IX, Constitution] c. Commission on Audit, [Sec. 7, Art. IX, Constitution] d. Sandiganbayan, and [P.D. 1606 as amended] [1 Riano 106, 2014 Bantam Ed.] e. Court of Tax Appeals (not en banc). [1 Riano 92, 2016 Bantam Ed.] (if en banc, SC in appellate jurisdiction) CONCURRENT ORIGINAL JURISDICTION 1. With CA a. Petitions for certiorari, prohibition, and mandamus against first-level courts and bodies, namely i. RTCs [Sec. 21(1), B.P. 129] ii. Civil Service Commission [R.A. 7902] iii. Central Board of Assessment Appeals [P.D. 464; B.P. 129; R.A. 7902] iv. NLRC and [St. Martin Funeral Homes v. NLRC, G.R. No. 130866 (1998); R.A. 7902] v. Other Quasi-Judicial Agencies. [B.P. 129; R.A. 7902; Heirs of Hinog v. Melicor, G.R. No. 140954 (2005) [1 Riano 106-107, 2014 Bantam Ed.] Note: Although there is concurrent jurisdiction as the Constitution grants this to the SC, SC A.M. No. 07-7-12 issued on 4 December 2007 provides that if the petition involves an act/omission of a Quasi-Judicial

REMEDIAL LAW

Quo Warranto petitions, Writ of Habeas Corpus, Writ of Amparo, Writ of Habeas Data, and [1 Riano 9394, 2016 Bantam Ed.] Writ of KaIikasan. [Sec. 3, Rule 7, Part 3, Rules of Procedure for Environmental Cases]

2. With RTC a. Cases affecting ambassadors, public ministers, and consuls [Sec. 21(2), B.P. 129] b. Petitions for certiorari, prohibition, and mandamus against lower courts [1 Riano 93, 2016 Bantam Ed.] c. Quo Warranto petitions, d. Writ of Habeas Corpus, e. Writ of Amparo, and f. Writ of Habeas Data. 3. With Sandiganbayan a. Writ of Amparo, and b. Writ of Habeas Data. APPELLATE JURISDICTION SC has appellate jurisdiction over petitions for review on certiorari (appeal by certiorari under Rule 45) against the a. CA, b. Sandiganbayan, c. RTC with respect to: 1. Pure questions of law [Sec. 1, Rule 45] and 2. Cases falling under Sec. 5, Art. VIII, Constitution (i) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (ii) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

Page 7 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

(iii)

All cases in which the jurisdiction of any lower court is in issue, (iv) All criminal cases in which the penalty imposed is reclusion perpetua or higher, and (v) All cases in which only an error or question of law is involved, and [Sec. 5(2), Art. VIII, Constitution] d. CTA in its decisions rendered en banc [1 Riano 107, 2014 Bantam Ed.] e. MTC in the exercise of their delegated jurisdiction, where the decision, had it been rendered by RTC, would be appealable directly to the SC. [Sec. 34, B.P. 129, as amended] Such is the case because the MTC, when acting under delegated jurisdiction, is deemed to be acting as an RTC. [1 Riano 106, 2016 Bantam Ed.] Only pure questions of law are involved when no evidentiary matters are to be evaluated by the SC. If the only issue is whether or not the conclusions of the trial court are in consonance with law and jurisprudence, then the issue is a pure question of law [Urbano v. Chavez, G.R. No. 87977 (1990)] Note that the SC has held that appeals from quasi-judicial agencies – even only on a question of law alone – may be brought to the CA, via Rule 43 of the ROC. This constitutes an exception to the general rule that appeals on pure questions of law are brought to the SC [Santos v. Committee on Claims Settlement, G.R. No. 158071 (2009)] (also see (a)(1)(v) under concurrent jurisdiction of the SC)

b. Court of Appeals EXCLUSIVE ORIGINAL JURISDICTION Actions for annulment of judgments of the RTC [see: Sec. 9(2), B.P. 129; Sec. 1, Rule 47] CONCURRENT ORIGINAL JURISDICTION 1. With SC a. Petitions for certiorari, prohibition, and mandamus against first-level courts and bodies, namely i. RTCs [Sec. 21(1), B.P. 129]

ii.

Civil Service Commission [R.A. 7902] iii. Central Board of Assessment Appeals [P.D. 464; B.P. 129; R.A. 7902] iv. NLRC and [St. Martin Funeral Homes v. NLRC, G.R. No. 130866 (1998); R.A. 7902] v. Other Quasi-Judicial Agencies. [B.P. 129; R.A. 7902; Heirs of Hinog v. Melicor, G.R. No. 140954 (2005) [1 Riano 106-107, 2014 Bantam Ed.] b. Quo Warranto petitions, c. Writ of Habeas Corpus, d. Writ of Amparo, e. Writ of Habeas Data, and [1 Riano 9394, 2016 Bantam Ed.] f. Writ of KaIikasan. [Sec. 3, Rule 7, Part 3, Rules of Procedure for Environmental Cases] 2. With RTC a. Petitions for certiorari, prohibition and mandamus against lower courts and bodies b. Quo warranto petitions, and c. Writ of Habeas Corpus [1 Riano 96, 2016 Bantam Ed.] d. Writ of Amparo, and [Sec. 3, Rule on the Writ of Amparo] e. Writ of Habeas Data [Sec. 3, Rule on the Writ of Habeas Data] 3. With Sandiganbayan a. Writ of Amparo, and b. Writ of Habeas Data APPELLATE JURISDICTION 1. By ordinary appeal a. From judgments of RTC and Family Courts, [Sec. 9(3), B.P. 129, as amended; Sec. 14, R.A. 8369] b. Over decisions of the MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction. [Sec. 34, B.P. 129, as amended by R.A. 7691]

Page 8 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. By petition for review a. From judgments of the RTC rendered in its appellate jurisdiction, and [Sec. 22, B.P. 129, as amended; Rule 42; Sec. 9, B.P. 129] b. From decisions, resolutions, orders or awards of the Civil Service Commission and other quasi-judicial bodies mentioned in Rule 43. [Sec. 9(3), B.P. 129] Note: The enumeration of quasi-judicial agencies under Sec. 1, Rule 43 is not exclusive [Wong v. Wong, G.R. No. 180364 (2014), quoting Cayao-Lasam v. Sps. Ramolete, G.R. No. 159132 (2008)] 3. From decisions of the Office of the Ombudsman in administrative disciplinary cases [1 Riano 96-97, 2016 Bantam Ed.]

c. Court of Tax Appeals EXCLUSIVE ORIGINAL JURISDICTION 1. Over tax collection cases involving final and executory assessments for taxes, fees, charges, and penalties; Provided, however, that collection cases where the principal amount of taxes and fees. exclusive of charges and penalties claimed, is less than P1,000,000 shall be tried by the proper Municipal Trial Court Metropolitan Trial Court, and Regional Trial Court. APPELLATE JURISDICTION 1. Exclusive appellate jurisdiction in tax collection cases: a. Over appeals from the judgements, resolutions or orders of the Regional Trial Courts in tax collection cases originally decided by them, in their respective territorial jurisdiction. b. Over petitions for review of the judgments, resolutions, or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over tax collection cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts, and the Municipal Circuit

REMEDIAL LAW

Trial Courts, in their respective jurisdictions. 2. Exclusive appellate jurisdiction to review by appeal: a. Decision of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees, or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue. b. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees, or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial. c. Decision, orders or resolutions of the Regional Trial Courts in the local tax cases originally decided oy resolved by them in the exercise of their original or appellate jurisdiction. d. Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees, or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs. e. Decisions of the Central Board of Assessment Appeals, in the exercise of its appellate jurisdiction, over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals. f. Decisions of the Secretary of Finance on customs duties elevated to him automatically for review from decisions

Page 9 of 525

U.P. LAW BOC

CIVIL PROCEDURE

of the Commissioner of Customs which are adverse to the Government under Sec. 2315 of the Tariff and Customs Code. g. Decisions of the Secretary of Trade and Industry in the case of nonagricultural product, commodity, or article, and the Secretary of Agriculture in the case of an agricultural product, commodity, or article involving dumping and countervailing duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. [1 Riano 98-100, 2016 Bantam Ed.]

d. Sandiganbayan EXCLUSIVE ORIGINAL JURISDICTION a. Violations of R.A. 3019 or the Anti-Graft and Corrupt Practices Act b. Violations of R.A. 1379 or An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor c. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC), where one or more of the principal accused are occupying the following positions in government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense 1. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (R.A. 6758), specifically including: ● Provincial governors, vicegovernors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads ● City mayors, vice-mayors, members of the sangguniang

2.

3.

4.

5.

REMEDIAL LAW

panlungsod, city treasurers, assessors, engineers, and other city department heads ● Officials of the diplomatic service occupying the position of consul and higher ● Philippine army and air force colonels, naval captains, and all officers of higher rank; ● Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent and higher ● City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; ● Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations Members of Congress and officials thereof classified as Grade 27 and up under R.A. 6758 Members of the Judiciary without prejudice to the provisions of the Constitution Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution All other national and local officials classified as Grade 27 and higher under R.A. 6758

Note: Exclusive original jurisdiction shall be vested in the proper RTC or MTC, as the case may be, where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, or military and PNP officers mentioned above [Sec. 4, P.D. 1606, as amended by R.A. 10660] d. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a. of

Page 10 of 525

U.P. LAW BOC

CIVIL PROCEDURE

section 4 (as amended) in relation to their office e. Civil and criminal cases filed pursuant to and in connection with E.O. Nos. 1, 2, 14-A f. Petitions for mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction, and petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986 [Sec. 4, P.D. 1606, as amended by R.A. 10660] CONCURRENT ORIGINAL JURISDICTION With SC, CA, and RTC for petitions for writs of amparo [Sec. 3, Rule on the Writ of Amparo] and habeas data [Sec. 3, Rule on the Writ of Habeas Data] APPELLATE JURISDICTION The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of the RTC, whether in the exercise of their own original jurisdiction or of their appellate jurisdiction, as herein provided [Sec. 4, P.D. 1606, as amended by R.A. 10660]

e. Regional Trial Courts EXCLUSIVE ORIGINAL JURISDICTION a. All civil actions in which the subject of the litigation is incapable of pecuniary estimation [Sec. 19(1), B.P. 129, as amended by R.A. 7691] Test: If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation. On the other hand, where the basic issue is something other than the right to recover a sum of money, and the money claim is purely incidental to, or a consequence of, the principal relief sought, such actions are cases where the subject of the litigation is incapable of pecuniary estimation. [Heirs of Padilla v. Magdua, G.R. No. 176858 (2010), quoting Singson v. Isabela Sawmill, G.R. No. L-27343 (1979)] Page 11 of 525

REMEDIAL LAW

An action to nullify a Deed of Assignment and Conveyance is not one involving a subject matter incapable of pecuniary estimation if the plaintiff also seeks to the transfer of possession and control of properties: In Home Guaranty v. R-II Builders [G.R. No. 192649 (2011)], an action that sought the nullification of a Deed of Assignment and Conveyance was characterized by the respondent on an MR before the SC as one involving a subject matter incapable of pecuniary estimation. The SC disagreed and held that since the action was not solely for the annulment of the Deed of Assignment and Conveyance – indeed, the respondent consistently sought the transfer of possession and control of properties – following the its ruling in Ruby Shelter Builders and Realty Development Corp. v. Formaran III, G.R. No. 175914 (2009), the subject of the action was capable of pecuniary estimation. However, if the principal nature of an action to cancel a contract to sell, where the defendant has already taken possession of the property, involves a determination on whether a suspensive condition has been fulfilled – then the subject matter involved is one that is incapable of pecuniary estimation: In Olivarez Realty v. Castillo [G.R. No. 196251 (2014)], the action instituted in the trial court was one for the cancellation of a contract to sell, and prior to the institution of the action the defendant had already proceeded to occupy the property involved. In this instance, the SC held that the action involved a subject matter that was incapable of pecuniary estimation. The difference in the ruling of the SC here and in Home Guaranty lies in that fact that in Olivarez Realty, what the plaintiff had principally sought was a determination that a suspensive condition for the perfection of the contract had not been fulfilled: “the trial court principally determined whether Olivarez Realty Corporation failed to pay installments of the property’s purchase price as the parties agreed upon in the

U.P. LAW BOC

CIVIL PROCEDURE

deed of conditional sale. The principal nature of Castillo’s action, therefore, is incapable of pecuniary estimation.”

REMEDIAL LAW

[Heirs of Sebe v. Heirs of Sevilla, G.R. No. 174497 (2009)]

An expropriation suit is incapable of pecuniary estimation [Barangay San Roque v. Heirs of Francisco Pastor, G.R. No. 138896 (2000)]

c. Any action if the amount involved exceeds P300,000 outside Metro Manila or exceeds P400,000 in Metro Manila in the following cases [B.P. 129, as amended by R.A. 7691]: 1. Actions in admiralty and maritime jurisdiction, where the amount refers to demand or claim [Sec. 19(3)] 2. Matters of probate (testate or intestate), where the amount refers to gross value of estate [Sec. 19(4)] 3. In all other cases where the amount refers to the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs [Sec. 19(8)]

Lastly, an action for specific performance in one incapable of pecuniary estimation. [Russel v. Vestil, 304 SCRA 738 (1999)] Any amount of damages claimed in addition to the prayer for specific performance is not determinative of jurisdiction. [1 Riano 135, 2016 Bantam Ed.]

d. All actions involving the contract of marriage and family relations [Sec. 19(5), B.P. 129, as amended by R.A. 7691], and all civil actions and special proceedings falling within exclusive original jurisdiction of Juvenile and Domestic Relations Court [Sec. 19(7), B.P. 129, as amended by R.A. 7691]

b. Civil actions involving title to, or possession of real property, or any interest therein, where assessed value exceeds P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila [Sec. 19(2), B.P. 129, as amended by R.A. 7691]

Note: This jurisdiction is deemed modified by Sec. 5, R.A. 8369, the law establishing the Family Courts. However, in areas where there are no Family Courts, the cases within their jurisdiction shall be adjudicated by the RTC [Sec. 17, R.A. 8369; 1 Riano 147, 2014 Bantam Ed.]

See also: Heirs of Bautista v. Lindo [G.R. No. 208232 (2014)], where an action to redeem a land subject of a free patent was characterized by the SC as one whose subject matter was incapable of pecuniary estimation since the reacquisition of the land was merely incidental to and an offshoot of the exercise of the right to redeem the land, pursuant to Sec. 119 of CA 141.

Exception: Forcible entry and unlawful detainer (FEUD) cases, as FEUD cases are within the exclusive original jurisdiction of the MTC. [Sec. 33(2), B.P. 129, as amended by R.A. 7691] An action "involving title to real property" means that the plaintiff's cause of action is based on a claim that he owns such property or that he has the legal rights to have exclusive control, possession, enjoyment, or disposition of the same. Title is the "legal link between (1) a person who owns property and (2) the property itself."

e. All civil actions and special proceedings falling within exclusive original jurisdiction of the Court of Agrarian Reform [Sec. 19(7), B.P. 129, as amended by R.A. 7691] f.

Page 12 of 525

All cases not within exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions [Sec. 19(6), B.P. 129, as amended by R.A. 7691] This jurisdiction is often described as the “general jurisdiction” of the RTC making it a court

U.P. LAW BOC

CIVIL PROCEDURE

of general jurisdiction. [1 Riano 146, 2014 Bantam Ed.] g. Intra-corporate controversies 1. Cases involving devises or schemes employed by or any acts, of board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to interest of public and/or of stockholders, partners, members of associations or organizations registered with SEC 2. Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates; between any or all of them and corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity 3. Controversies in election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations 4. Petitions of corporations, partnerships or associations to be declared in state of suspension of payments in cases where corporation, partnership of association possesses sufficient property to cover all its debts but foresees impossibility of meeting them when they respectively fall due or in cases where corporation, partnership or association has no sufficient assets to cover its liabilities, but is under management of a Rehabilitation Receiver or Management Committee [Sec. 52, Securities and Regulations Code] h. Petitions for declaratory relief [Sec. 1, Rule 63] i.

Cases originally falling within the exclusive original jurisdiction of the Sandiganbayan where the information:

REMEDIAL LAW

1. Does not allege any damage to the government or any bribery; or 2. Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding P1 million. [Sec. 4, P.D. 1606, as amended by R.A. 10660]

CONCURRENT ORIGINAL JURISDICTION 1. With SC a. Cases affecting ambassadors, public ministers, and consuls [Sec. 21(2), B.P. 129] b. Petitions for certiorari, prohibition, and mandamus against lower courts [1 Riano 93, 2016 Bantam Ed.] c. Quo Warranto petitions, d. Writ of Habeas Corpus, e. Writ of Amparo, and f. Writ of Habeas Data 2. With CA a. Petitions for certiorari, prohibition and mandamus against lower courts and bodies b. Quo warranto petitions, and c. Writ of Habeas Corpus [1 Riano 96, 2016 Bantam Ed.] d. Writ of Amparo, and [Sec. 3, Rule on the Writ of Amparo] e. Writ of Habeas Data [Sec. 3, Rule on the Writ of Habeas Data] 3. With Sandiganbayan a. Writ of Amparo, and b. Writ of Habeas Data APPELLATE JURISDICTION Appellate jurisdiction over cases decided by lower courts (i.e. MTC) in their respective territorial jurisdictions, except those made in the exercise of delegated jurisdiction, which are appealable in the same manner as decisions of the RTC. [Sec. 34, B.P. 129, as amended] SPECIAL JURISDICTION Special jurisdiction - SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations

Page 13 of 525

U.P. LAW BOC

CIVIL PROCEDURE

cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice [Sec. 23, B.P. 129]

f. Family Courts a. Criminal cases where one or more accused is below 18 but not less than 9 years old or where one or more victims was a minor at time of commission of offense, b. Petitions for guardianship, custody of children and habeas corpus in relation to children, c. Petitions for adoption of children and revocation thereof, d. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains, e. Petitions for support and/or acknowledgment, f. Summary judicial proceedings brought under the provisions of Family Code, g. Petitions for declaration of status of children as abandoned, dependent or neglected children, voluntary or involuntary commitment of children, suspension, termination or restoration of parental authority, and other cases cognizable under P.D. 603, E.O. 56, s. 1986, and other related laws, h. Petitions for constitution of family home, i. Cases against minors cognizable under Dangerous Drugs Act, as amended, (now R.A. 9165) j. Violations of R.A. 7610, or the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act”, and k. Cases of domestic violence against Women and Children. [Sec. 5, R.A. 8369]

REMEDIAL LAW

g. Metropolitan Trial Courts, Municipal Trial Courts, Municipal Trial Courts in Cities, Municipal Circuit Trial Courts EXCLUSIVE ORIGINAL JURISDICTION a. Where the value of personal property, estate, or amount of demand does not exceed P300,000 outside Metro Manila or does not exceed P400,000 in Metro Manila, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, in the following cases: 1. Civil actions, 2. Probate proceedings, (testate or intestate) 3. Provisional remedies in proper cases. [Sec. 33(1), B.P. 129, as amended by R.A. 7691] Totality Rule If several claims or causes of action are embodied in the same complaint, the amount of all the demands shall be the basis in computation of the amount involved, if 1. Claims are in the same complaint 2. Claims are against the same defendant 3. No misjoinder of parties [1 Riano 104, 2016 Bantam Ed.] b. Forcible entry and unlawful detainer (FEUD) Note: When defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved without deciding issue of ownership, the latter issue shall be resolved only to determine the former issue [Sec. 33(2), B.P. 129, as amended by R.A. 7691] c. All civil actions involving title to, or possession of, real property, or any interest therein where assessed value of property or interest therein does not exceed P20,000 outside Metro Manila, or does not exceed P50,000 in Metro Manila [Sec. 33(3), B.P. 129, as amended by R.A. 7691] d. Inclusion and exclusion of voters [Sec. 49, Omnibus Election Code]

Page 14 of 525

U.P. LAW BOC

CIVIL PROCEDURE

SPECIAL JURISDICTION Special jurisdiction over petition for writ of habeas corpus OR application for bail in criminal cases in the absence of all RTC judges in the province or city. [Sec. 35, B.P. 129] DELEGATED JURISDICTION OF THE MTC Delegated jurisdiction of 1st level courts assigned by SC to hear and decide cadastral and land registration cases covering a. Lots where there is no controversy or opposition b. Contested lots the value of which does not exceed P100,000, the value is to be ascertained: 1. By the claimant’s affidavit 2. By agreement of the respective claimants, if there are more than one; or 3. From corresponding tax declaration of the real property MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions, since MTCs acting in their delegated capacity are treated under law like RTCs. [Sec. 34, B.P. 129, as amended by R.A. 7691] DIFFERENCE BETWEEN 1ST LEVEL COURTS 1. Metropolitan Trial Court – in each metropolitan area established by law [Sec. 25, B.P. 129], particularly Metro Manila [Sec. 27, B.P. 129] 2. Municipal Trial Courts in Cities – In every city not part of a metropolitan area [Sec. 29, B.P. 129] 3. Municipal Circuit Trial Court – in each circuit comprising such cities and municipalities grouped together pursuant to law [Sec. 25, B.P. 129] 4. Municipal Trial Courts – in municipalities not comprised within a metropolitan area and a municipal circuit [Sec. 30, B.P. 129]

REMEDIAL LAW

4. Aspects of Jurisdiction a. Jurisdiction over the Parties Jurisdiction over the parties refers to the power of the court to make decisions that are binding on persons. [De Pedro v. Romansan Development Corp, G.R. No. 194751 (2014)] It is also called jurisdiction in personam which is the power required before a court can enter a personal or an in personam judgment. [Pennoyer vs Neff, 95 US 714 (1878)] It is an element of due process that is essential in all actions, civil or criminal, except in actions in rem or quasi in rem. [Guy v. Gacott, G.R. No. 206147 (2016)] Kinds: a. Over the plaintiff b. Over the defendant c. Over non-parties – It is a principle of equity that jurisdiction over a person not formally or originally a party to a litigation may nevertheless be acquired, under proper conditions, through the voluntary appearance of that person before the court. [Rodriguez v. Alikpala, G.R. No. L-38314 (1974)] i. How jurisdiction over the plaintiff is acquired Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint [De Pedro v. Romansan Development Corp, G.R. No. 194751 (2014)] By the mere filing of the complaint, the plaintiff, in a civil action, voluntarily submits himself to the jurisdiction of the court. [Guy v. Gacott, G.R. No. 206147 (2016)]

Page 15 of 525

U.P. LAW BOC

CIVIL PROCEDURE

ii. How jurisdiction over defendant is acquired

the

Jurisdiction over the person of the defendant is acquired: 1. By his voluntary appearance in court and his submission to its authority, or 2. By service of summons. [Sec. 20, Rule 14; Macasaet v. Co, G.R. No. 156759 (2013)] Voluntary Appearance of the defendant gives the court jurisdiction over his person despite lack of service of summons or a defective service of summons. Since his voluntary appearance in the action shall be equivalent to service of summons. For further discussion on voluntary appearance, see section on Summons.

b. Jurisdiction over the Subject Matter i. Meaning of Jurisdiction over the Subject Matter Jurisdiction over the subject matter is the power of a particular court to hear the type of case that is then before it [1 Riano 71, 2014 Bantam Ed., citing Black’s Law Dictionary 767, 5th Ed.] It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz, G.R. No. L48754 (1941)] Subject matter jurisdiction simply refers to the judicial power that has been vested in a specific type of court by the legal system, in terms of what kinds of action it can decide and what powers it can exercise in relation thereto. [Prof. Avena] ii. Distinguish: Jurisdiction Exercise of Jurisdiction

and

REMEDIAL LAW

Exercise of Jurisdiction is the exercise of such power or authority. Where there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is an exercise of that jurisdiction. [Republic v. G Holdings, Inc, G.R. No. 141241 (2005)] iii. How Jurisdiction is Conferred and Determined Jurisdiction over the subject matter of a case is conferred by law and determined by the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the plaintiff's cause of action. [Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416 (2013)] The allegations in the body of the complaint define the cause of action. The caption or title of the cause of action is not controlling. [Dela Cruz v. CA, G.R. No. 139442 (2006)] Consequences of rule that jurisdiction is conferred by law; it cannot be: a. Conferred by voluntary act or agreement of the parties, b. Acquired, waived, enlarged, or diminished by any act or omission of the parties, or c. Conferred by the acquiescence of the courts, [De la Rosa v. Roldan, G.R. No. 133882 (2006)] d. Conferred by administrative policy of any court, or [Arranza v. B.F. Homes, Inc., G.R. No. 131683 (2000)] e. Conferred by a court’s unilateral assumption of jurisdiction. [Tolentino v. Social Security Commission, G.R. No. L28870 (1985)] [1 Riano 75-76, 2014 Bantam Ed.] Jurisdiction is not affected by the pleas set up by the defendant in his answer or in a motion to dismiss, otherwise, jurisdiction would be dependent on his whims. [Sindico v. Diaz, G.R. No. 147444 (2004)]

Jurisdiction is the authority to decide a case. It is the power of the court.

Page 16 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

iv. Distinguish: Doctrine of Primary Administrative Jurisdiction and Doctrine of Exhaustion of Administrative Remedies General Rule: The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of the proper administrative bodies, relief must first be obtained in an administrative proceeding before a remedy is supplied by the courts even if the matter may well be within their proper jurisdiction. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)] The objective of the doctrine of primary jurisdiction is to guide the court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)] Exceptions: a. Where there is estoppel on the part of the party invoking the doctrine, b. Where the challenged administrative act is patently illegal, amounting to lack of jurisdiction, c. Where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant, d. Where the amount involved is relatively small, e. Where the question involved is purely legal and will ultimately have to be decided by the courts, f. Where judicial intervention is urgent, g. When its application may cause great and irreparable damage, h. Where the controverted acts violate due process, i. When the issue of non-exhaustion of administrative remedies has been rendered moot, j. When there is no other plain, speedy, adequate remedy,

k. When strong public interest is involved, and l. In quo warranto proceedings. [Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)] The doctrine of primary jurisdiction is corollary to the doctrine of exhaustion of administrative remedies in which courts cannot determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal. [International Service v. Greenpeace Southeast Asia, G.R. No. 209271 (2015)] v. Doctrine of Jurisdiction

Adherence

of

Also known as doctrine of continuity of jurisdiction [1 Riano 85-86, 2014 Bantam Ed.] Once the jurisdiction of a court attaches, it continues until the case is finally terminated. The trial court cannot be ousted therefrom by subsequent happenings or events, although of a character that would have prevented jurisdiction from attaching in the first instance [Baritua v. Mercader, G.R. No. 136048 (2001)] General Rule: Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the case is not affected by new legislation placing jurisdiction over such proceeding in another tribunal [Southern Food v. Salas, G.R. No. 56428 (1992)] Exceptions: a. Where there is an express provision in the statute; and b. The statute is clearly intended to apply to actions pending before its enactment [People v. Cawaling, G.R. No. 117970 (1998); Southern Food v. Salas, G.R. No. 56428 (1992)]]

Page 17 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

vi. Objections to Jurisdiction over the Subject Matter

which it has actively participated [Francel Realty Corp. v. Sycip, G.R. No. 154684 (2005)]

When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the claim. [Sec. 1, Rule 9]

Note: Tijam v. Sibonghanoy must be construed as an exception to the general rule and applied only in the most exceptional cases where the factual milieu is similar to that in the said case [Figueroa v. People, G.R. No. 147406 (2008)]

The jurisdiction of a court over the subject matter of the action is a matter of law and may not be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised at any stage of the proceedings, even on appeal [SEAFDEC v. NLRC, G.R. No. 86773 (1992)] Under the Amended Rules, a motion to dismiss is now a prohibited motion, but one of the exceptions provided is the ground of lack of jurisdiction over the subject matter of the claim. [Sec. 12, Rule 15] Moreover, under the Amended Rules, lack of jurisdiction over the subject matter is also an affirmative defense which can be raised in a defendant’s answer. [Sec. 12(d), Rule 8 in relation to Sec. 5(b), Rule 6]

Note: Even if Sec. 12(b), Rule 8 of the Amended Rules provides that the failure to raise an affirmative defense at the earliest opportunity constitutes a waiver thereof, the failure to raise lack of jurisdiction over the subject matter as an affirmative defense in the answer does not waive such defense. The retention of Sec. 1, Rule 9 maintains the status of lack of jurisdiction over the subject matter as a non-waivable defense. As such, the proper action if one failed to raise the court’s lack of jurisdiction over the subject matter in the answer would be to file a motion to dismiss, which can be filed at any point during the proceedings, subject to the doctrine in Tijam.

vii. Effect of Estoppel on Objection to Jurisdiction General rule: Lack of jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. The reason for this is that jurisdiction is conferred by law, and lack of it affects the very authority of the court to take cognizance of the action [Asiatrust Development Bank v. First Aikka Development, Inc., G.R. No. 179558 (2011)] Exception: Tijam v. Sibonghanoy [G.R. No. L21450 (1968)] espoused the doctrine of estoppel by laches, which held that a party may be barred from questioning a court’s jurisdiction after invoking the court’s authority in order to secure affirmative relief against its opponent, when laches would prevent the issue of lack of jurisdiction from being raised for the first time on appeal by a litigant whose purpose is to annul everything done in a trial in

c. Jurisdiction over the Issues Jurisdiction over the issues is the power of the court to try and decide the issues raised in the pleadings of the parties [Reyes vs Diaz, G.R. No. 48754 (1941)] An issue is a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision [1 Riano 83, 2016 Bantam Ed., citing Black’s Law Dictionary 745, 5th Ed.] Generally, jurisdiction over the issues is conferred and determined by a. The pleadings of the parties, which present the issues to be tried and determine whether or not the issues are of fact or law [Reyes v. Diaz, G.R. No. L48754 (1941)] b. Stipulation of the parties as when, in the pre-trial, the parties enter into stipulations

Page 18 of 525

U.P. LAW BOC

CIVIL PROCEDURE

of facts or enter into agreement simplifying the issues of the case [Sec. 2(c), Rule 18] c. Waiver or failure to object to evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent on issues not raised by the pleadings. [Sec. 5, Rule 10] [1 Riano 83-84, 2016 Bantam Ed.] The rule is that a party is entitled only to such relief consistent with and limited to that sought by the pleadings or incidental thereto. A trial court would be acting beyond its jurisdiction if it grants relief to a party beyond the scope of the pleadings. [Gonzaga v. CA, G.R. No. 142037 (2004)]

d. Jurisdiction over the Res or Property in Litigation

REMEDIAL LAW

(2014); Perkins v. Dizon [G.R. No. 46631 (1939)] Example: A land registration case is a proceeding in rem. In such a case, actual possession of the land by the court is not necessary. It is enough that there is constructive seizure of the land through publication and service of notice. [1 Riano 89, 2016 Bantam Ed.] Jurisprudence holds that if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res, although summons must also be served upon the defendant in order to satisfy the requirements of due process. [Gomez vs CA, G.R. No. 127692 (2004)]

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action [1 Riano 104, 2014 Bantam Ed.]

5. Distinguish: Jurisdiction Judgment

“Res,” in civil law is a “thing” or “object.” It is everything that may form an object of rights, as opposed to a “persona,” which is the subject of rights. It includes object, subject matter or status [1 Riano 86, 2016 Bantam Ed., citing Black’s Law Dictionary 1172, 5th Ed.]

Error of Jurisdiction is one which occurs when the court exercises a jurisdiction not conferred upon it by law or when the court acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. [GSIS v. Oliza, G.R. No. 126874 (1999)]

How Acquired: a. By seizure of the thing under legal process whereby, it is brought into actual custody of the law (custodia legis); or b. From the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective (potential jurisdiction over the res) [Biaco v. Philippine Countryside Rural Bank, G.R. No. 161417 (2007); El Banco EspañolFilipino v. Palanca, G.R. No. 11390 (1918)]

Error of Judgment presupposes that the court is vested with jurisdiction over the subject matter but in the process of exercising such jurisdiction, it committed mistakes in the appreciation of facts and the evidence leading to an erroneous judgment. [1 Riano 58, 2016 Bantam Ed]

In order that the court may exercise power over the res, it is not necessary that the court should take actual custody of the property, potential custody thereof being sufficient. [Marcos, Jr. v. Republic, G.R. No. 189434

Error of jurisdiction One where the act complained of was: (1) without jurisdiction or in excess of jurisdiction [Cabrera v. Lapid, G.R. No. 129098 (2006)], or

Page 19 of 525

Error and Error

of of

Error of judgment One which the court may commit in the exercise of its jurisdiction. It includes errors of procedure or mistakes in the court’s findings

U.P. LAW BOC

(2) with grave abuse of discretion amounting to lack of jurisdiction

CIVIL PROCEDURE

[Banco Filipino Savings and Mortgage Bank v. CA, G.R No. 132703 (2000)]

Correctable only by the extraordinary writ of certiorari. [Cabrera v. Lapid, G.R. No. 129098 (2006)] Note: Sec. 8, Rule 40 Correctable by allows an RTC with appeal. [Cabrera v. original jurisdiction Lapid, G.R. No. over a case brought 129098 (2006)] on appeal from a lower court without jurisdiction over subject matter to decide the case on the merits. When there is an error of jurisdiction on the part of the court, the decision rendered is a total An erroneous nullity and may be judgment on the part struck down at any of the court does not time, even on appeal; render the judgment EXCEPT when party void. raising the issue is barred by estoppel. [Suntay v. Gocolay, G.R. No. 144892 (2005)] [1 Riano 73-74, 2014 Bantam Ed.]

6. Distinguish: Jurisdiction and Venue Venue Place where the case is to be heard or tried Procedural Establishes a relation between

Jurisdiction

plaintiff and defendant, or petitioner and respondent May be changed by the written agreement of the parties or waived expressly or impliedly

REMEDIAL LAW

court and the subject matter

Fixed by law and cannot be conferred by the act or agreement of the parties

The court may dismiss an action motu proprio in case of lack of jurisdiction over the subject matter [Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque City, G.R. No. G.R. No. 133240 (2000)] Jurisdiction over the subject matter may The objection to an be raised at any improper venue stage of the must be raised in the proceedings since it answer as an is conferred by law, affirmative defense. although a party may [Sec 12, Rule 8] be barred from It is no longer a valid raising it on the ground for a motion ground of estoppel to dismiss. [La’o v. Republic, G.R. No. 160719 (2006)] [Nocum v. Tan, G.R. No. 145022 (2005)] [1 Riano 196, 2014 Bantam Ed.] The court may not dismiss an action motu proprio for improper venue [Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque City, G.R. No. G.R. No. 133240 (2000)]

7. Jurisdiction over Small Claims, Rules on Summary Procedure, Brgy. Conciliation

Authority to hear and determine a case Substantive Establishes a relation between the Page 20 of 525

a. Cases Covered by Revised Rules of Procedure for Small Claims Cases

U.P. LAW BOC

CIVIL PROCEDURE

The Revised Rules shall govern the procedure in actions for payment of money where the value of the claim does not exceed PHP 400,000 in cases filed before the MeTC, and P300,000 in cases filed before the MCTC, MTCS, and MTCC, exclusive of interest and costs. [ February 26, 2019 Resolution in A.M. No. 08-8-7-SC] [OCA Circular No. 45-2019] Applicability All actions which are purely civil in nature, where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money. The claim or demand may be: 1. For money owed under a contract of lease, loan, services, sale, or mortgage, 2. For liquidated damages arising from contracts, or 3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of the LGC. [Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016]

b. Cases Covered by Rules on Summary Procedure 1. All cases of forcible entry and unlawful detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be recovered, 2. All other cases, except probate proceedings, where the total amount of the plaintiff‘s claim does not exceed P100,000 outside Metro Manila or P200,000 in Metro Manila, exclusive of interest and costs [Sec. 1, Revised Rule on Summary Procedure, as amended by A.M. No. 02-11-09-SC]

c. Cases Covered by Barangay Conciliation The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes.

REMEDIAL LAW

Except: 1. Where one party is the government or any subdivision or instrumentality thereof 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions 3. Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000 4. Offenses where there is no private offended party 5. Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 7. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice [Sec. 408, Local Government Code] 8. Any complaint by or against corporations, partnerships, or juridical entities, since only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents, [Sec. 1, Rule VI, Katarungang Pambarangay Rules; also see SC Administrative Circular No. 14-93] 9. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically: a. A criminal case where the accused is under police custody or detention, b. A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his behalf, c. Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite, or d. Where the action may be barred by the Statute of Limitations,

Page 21 of 525

U.P. LAW BOC

10. Labor disputes or controversies arising from employer-employee relationship, 11. Where the dispute arises from the CARL, or 12. Actions to annul judgment upon a compromise which may be directly filed in court. [Supreme Court Administrative Circular No. 1493] Note: Barangay conciliation is a condition precedent for filing a case. However, failure to comply with a condition precedent is no longer a ground for a motion to dismiss under the Amended Rules. It is now included in the enumerated Affirmative Defenses that may be set out in the answer under Sec. 12(a), Rule 8. Being a waivable defense, the failure to raise non-compliance with condition precedent in the answer constitutes a bar from raising such defense later in the proceedings.

C.

REMEDIAL LAW

CIVIL PROCEDURE

CIVIL PROCEDURE

1. General Provisions

character and whenever practicable and convenient. [Sec. 4, Rule 1]

b. Commencement of Civil Action The filing of the original complaint in court signifies the commencement of the civil action. [Sec. 5, Rule 1]

c. Construction The Rules shall be liberally construed in order to promote a just, speedy, and inexpensive disposition of every action and proceeding. [Sec. 6, Rule 1] A strict and rigid application of the rules of procedure, especially on technical matters, which tend to frustrate rather than promote substantial justice, must be avoided. [TiorosioEspinosa v. Hofileña-Europa, G.R. No. 185746 (2016)] However, compliance with the procedural rules is still the general rule, and abandonment thereof should only be done in the most exceptional circumstances. [Pilapil v. Heirs of Briones, 514 SCRA 197 (2007)]

a. Applicability The Rules of Court shall apply in all the courts, except as otherwise provided by the Supreme Court. [Sec. 2, Rule 1] Actions or Proceedings Governed by the Rules of Court 1. Civil actions 2. Criminal actions 3. Special Proceedings [Sec. 3, Rule 1] Actions or Proceedings Not Governed by the Rules of Court 1. Election cases 2. Land registration cases 3. Cadastral cases 4. Naturalization cases 5. Insolvency proceedings However, the Rules may still apply to the cases above by analogy or in suppletory

2. Actions An action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. [Natcher vs Court of Appeals, G.R. No. 133000 (2001)] The determinative operative act, which converts a claim into an action, is its filing with a court of justice. [1 Riano 212, 2014 Bantam Ed.]

a. Meaning Actions

of

Ordinary

Civil

An ordinary civil action is one which is governed by the rules for ordinary civil actions. [Sec. 3(a), par. 2, Rule 1]

Page 22 of 525

U.P. LAW BOC

Rules for Ordinary Civil Actions refer to Rule 2 (Cause of Action) until Rule 61 (Provisional Remedies). ● General Rules on Ordinary Civil Action Rule 2 to Rule 5 ● Procedure in Trial Courts - Rule 6 to Rule 39 ● Appeals - Rule 40 to Rule 43 ● Procedure in the Court of Appeals - Rule 44 to Rule 55 ● Procedure in the SC - Rule 56 ● Provisional Remedies - Rule 57 to Rule 61

b. 2. Meaning of Criminal Actions One by which the State prosecutes a person for an act or omission punishable by law [Sec. 3(b), Rule 1] Proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial. [People vs Godoy, 243 SCRA 64 (1995)]

c. Meaning Actions

REMEDIAL LAW

CIVIL PROCEDURE

of

Special

Civil

A special civil action is one which is subject to the specific rules prescribed for a special civil action but also governed by the rules for ordinary civil actions. [Sec. 3(a), par. 2, Rule 1] Rules 62 to 71 provide for special civil actions. However, despite having particular rules which govern the special civil actions, the rules for ordinary civil action still apply.

d. Distinguish: Civil Actions and Special Proceedings Civil Action A civil action is ne by which a party sues another for the enforcement or protection of a right,

Special Proceeding A special proceeding is a remedy by which a party seeks to establish a status, a

or the prevention or redress of a wrong [Sec. 3(a), par. 1, Rule 1]

right, or a particular fact [Sec. 3(c), Rule 1]

The rules of ordinary civil actions have suppletory application in special proceedings. [1 Riano 192, 2016 Bantam Ed.] (also see Sec. 2, Rule 72)

e. Personal Actions

Actions

Real Action It is an action affecting title to or possession of real property, or interest therein. [See Sec. 1, Rule 4]

and

Real

Personal Action It refers to all other actions which are not real actions. [Sec. 2, Rule 4]

Why distinction is important In order to determine the proper venue of the action. [Sec.1, Rule 4 in relation to Sec. 2, Rule 4] For purposes of determining venue, the question of whether or not the venue has been properly laid depends to a great extent on the kind of action (real or personal) presented by the complaint. [PICOP v. Samson, G.R. No. L30175 (1975)] Not every action involving real property is a real action because the realty may only be incidental to the subject matter of the suit. In the cases of Heirs of Bautista v. Lindo [G.R. No. 208232 (2014)] involving a complaint to redeem a parcel of land subject of a free patent and Olivarez Realty vs Castillo [G.R. No. 196251 (2014) involving an action for rescission of a contract involving real property], the SC held that the conveyance of real property was only incidental to the determination of matters incapable of pecuniary estimation. The cases were deemed personal actions because the principal action or remedy sought does not involve title to or possession of real property.

Page 23 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f. Local and Transitory Actions Local Action A local action is one which has to be filed in the place where the property is located. [Sec.1, Rule 4] One that could be instituted in one specific place. [Manila Railroad v. Attorney-General, G.R. No. L-6287 (1911)]

Transitory Action A transitory action is one which may be filed in the residence of the plaintiff or defendant, at the option of the plaintiff. [Sec. 2, Rule 4] One that could be prosecuted in any one of several places. [ManilaRailroad v. Attorney-General, G.R. No. L-6287 (1911)]

g. Actions in rem, in personam, and quasi in rem Why distinction is important ● To determine the binding effect of a decision the court may render over a party, whether impleaded or not [Paderanga v. Buissan, G.R. No. 49475 (1993)] ● To determine whether or not jurisdiction over the person of the defendant is required, and the type of summons to be employed [1 Riano 206, 2016 Bantam Ed.]

Page 24 of 525

REMEDIAL LAW

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

Actions in rem, in personam, and quasi in rem

One which seeks to enforce personal rights and obligations brought against the person. [Paderanga v. Buissan, GR. No. 49475 (1993)]

Action quasi in rem Names a person as defendant, but its object is to subject that person's interest in a property to a corresponding lien or obligation [Lucas v. Lucas, G.R. No. 190710 (2011)]

Necessary for the court to validly try and decide the case which can be made through service of summons [Lucas v. Lucas, G.R. No. 190710 (2011)]

Not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res [Lucas v. Lucas, G.R. No. 190710 (2011)]

Jurisdiction is acquired through service of summons as provided in the Rule 14 or voluntary appearance

Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective [Lucas v. Lucas, G.R. No. 190710 (2011)]

Binding effect of decisions

The decision is binding as against the whole world [Paderanga v. Buissan, G.R. No. 49475 (1993)]

Any judgment therein is binding only upon the parties properly impleaded [Paderanga v. Buissan, GR. No. 49475 (1993)]

Judgments therein are binding only upon the parties who joined in the action [Macasaet v. Co, G.R. No. 156759 (2013)]

Examples

Petition for adoption, annulment of marriage, or correction of entries in the birth certificate [Lucas v. Lucas, G.R. No. 190710 (2011)]

Action for a sum of money; action for damages [1 Riano 221, 2014 Bantam Ed.]

Attachment, foreclosure of mortgage, action for partition and action for accounting [1 Riano 227, 2014 Bantam Ed.]

Definition

Jurisdiction over the person

How jurisdiction is acquired

Action in rem Action against the thing or res itself, instead of against the person [Hernandez v. Rural Bank of Lucena, Inc. G.R. No. L-29791, (1978)] Not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res [Lucas v. Lucas, G.R. No. 190710 (2011)] Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective [Lucas v. Lucas, G.R. No. 190710 (2011)]

Action in personam

Page 25 of 525

U.P. LAW BOC

CIVIL PROCEDURE

who has committed a delict or wrong against him.

3. Cause of Action a. Meaning of Cause of Action A cause of action is an act or omission by which a party violates a right of another [Sec. 2, Rule 2] Without a cause of action, one cannot seek judicial relief for a violation of one’s rights because every ordinary civil action must be based on a cause of action [Sec. 1, Rule 2] Bases of cause of action A cause of action stems from the sources of obligations under Art. 1156 of the CC a. Law, b. Contract, c. Quasi-contract, d. Acts and omissions punishable by law, or e. Quasi-delict [Sagrada Orden etc v. NACOCO, G.R. No. L3756 (1952)] Elements of a cause of action a. Plaintiff’s legal right; b. Defendant’s correlative obligation to respect plaintiff’s right; and c. Defendant’s act/omission in violation of plaintiff’s right [Ma-ao Sugar Central v. Barrios, G.R. No. L1539 (1947)] When cause of action must exist A cause of action must exist at the time of the filing of the complaint – else, the case shall be dismissible for being a groundless suit. [Swagman Hotels and Travel v. CA, G.R. No. 161135 (2005), reiterating Surigao Mine Exploration v. Harris, G.R. No. L-45543 (1939)]

b. Distinguish: Right of Action and Cause of Action Right of Action The remedial right or right to relief granted by law to a party to institute an action against a person

Cause of Action The delict or wrongful act or omission committed by the defendant in violation of the

REMEDIAL LAW

primary rights of the plaintiff. [Racoma v. Fortich, G.R. No. L29380 (1971)]

Right to sue as a consequence of the The delict or wrong. delict. The cause of action of the plaintiff is A right of action is determined by the determined by averments in the substantive law. pleading regarding the acts committed by the defendant. [1 Regalado 21, 2010 Ed.] There can be no right of action without a cause of action being first established. [Español v. The Chairman and Members of the Board of Administrators, Philippine Veterans Administration, G.R. No. L-44616 (1985)]

c. Distinguish: Failure of the Complaint to State a Cause of Action and Lack of Cause of Action The cause of action must unmistakably be alleged in the complaint, such that all the elements required by substantive law must clearly appear from a mere reading of the complaint. [1 Riano 240, 2014 Bantam Ed.] Failure to state a cause of action is no longer a ground for a motion to dismiss under the Amended Rules. It is, however, one of the enumerated Affirmative Defenses that must be set out in the Answer or else it is deemed waived. [Sec 12, Rule 8] The complaint must contain a concise statement of the ultimate or essential facts constituting the plaintiff’s cause of action. The focus is on sufficiency, not veracity, of the material allegations. [Anchor Savings Bank v. Furigay, G.R. No. 191178 (2013)]

Page 26 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Failure to State Lack of Cause of Cause of Action Action Refers to the Refers to a situation insufficiency of the where the evidence allegations in the failed to prove the pleading. cause of action. The proper remedy when there is a The proper remedy failure to state a when the complaint cause of action is to is not based on a allege the same as cause of action is to an affirmative file a Demurrer of defense in the Evidence. [Rule 33] Answer. [Sec. 12(4), Rule 8] [Macaslang v. Zamora, G.R. No. 156375 (2011)]

d. Test of Sufficiency of Cause of Action The test of sufficiency of a cause of action rests on whether, hypothetically admitting the facts alleged in the complaint to be true, the court can render a valid judgment upon the same, in accordance with the prayer in the complaint. [Heirs of Maramag v. Maramag, G.R. No. 181132 (2009)] However, there is no hypothetical admission of the veracity of the allegations if a. The falsity of the allegations is subject to judicial notice; b. The allegations are legally impossible; c. The allegations refer to facts which are inadmissible in evidence; d. By the record or document in the pleading, the allegations appear unfounded; or e. There is evidence which has been presented to the court by stipulation of the parties or in the course of hearings related to the case [Heirs of Maramag v. Maramag, G.R. No. 181132 (2009)]

REMEDIAL LAW

How to determine existence of cause of action General rule: Determination shall be based only on facts alleged in the complaint and from no other, and the court cannot consider other matters aliunde [Manaloto v. Veloso III, G.R. No. 171635 (2010)] Exception: Instances when the SC considered matters aside from the facts alleged in the complaint, such as: a. Documents attached to the complaint [Agrarian Reform Beneficiaries Association v. Nicolas, G.R. No. 168394 (2008)] – this case refers to actionable documents which by express provision of the ROC are deemed part of the pleading. b. Appended annexes, other pleadings, and admissions on record [Zepeda v. China Banking Corp., G.R. No. 172175 (2006)] – the jurisprudence establishing this supposed exception ultimately points to dismissals based on a lack of a cause of action, opposed to a failure of the complaint to state a cause of action.

e. Splitting a Single Cause of Action and its Effects The act of instituting two or more suits on the basis of the same cause of action [Sec. 4, Rule 2], or splitting a single cause of action, is prohibited by the Rules. Such is referred to as “splitting a single cause of action”. A party may not institute more than one suit for a single cause of action. [Sec. 3, Rule 2] Such violates the policy against multiplicity of suits, whose primary objective is to avoid unduly burdening the dockets of the court [Dynamic Builders & Construction Co Inc v. Presbitero, Jr. G.R. No. 174202 (2015)]

Page 27 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Tests to determine a “single” cause of action The tests to ascertain whether two suits relate to a single or common cause of action are: a. Whether the same evidence would support and sustain both causes of action (Same Evidence Test); b. Whether the defenses in one case may be used to substantiate the complaint in the other; and c. Whether the cause of action in the second case existed at the time of filing of the first complaint. [Umale v. Canoga Park Development Corp., G.R. No. 167246 (2011)] Plaintiff's remedy if other reliefs not included in the complaint: Amendment In the event that a plaintiff has omitted to include in the complaint one or several other reliefs to which he may be entitled, the proper remedy of the plaintiff is not to institute another or several other actions – instead he should move to amend the complaint to include the omitted relief or reliefs [Bayang v. CA, G.R. No. L-53564 (1987)] Dismissal as effect of splitting of cause of action The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others [Sec. 4, Rule 2] The defendant facing a complaint which is infirm due to the plaintiff splitting causes of action may either allege the infirmity as an Affirmative Defense in his Answer [Sec. 5(b), Rule 6], or file a Motion to Dismiss on the following grounds: a. There is another action pending between the same parties for the same cause [Sec. 12 (a)(2), Rule 15], or b. The cause of action is barred by a prior judgment. [Sec. 12 (a)(3), Rule 15]

f. Joinder and Misjoinder Causes of Action

of

Joinder of causes of action It is the assertion of as many causes of action as a party may have against another in one

REMEDIAL LAW

pleading alone. [Sec. 5, Rule 2] It is the process of uniting two or more demands or rights of action in one action. [1 Riano 187, 2016 Bantam Ed.] Rationale To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost. [Ada v. Baylon, G.R. No. 182435 (2012)] Rule merely permissive The rule however is purely permissive as there is no positive provision of law or any rule of jurisprudence which compels a party to join all his causes of action and bring them at one and the same time. [Nabus v. CA, G.R. No. 91670 (1991)] Requisites a. The plaintiff asserts numerous causes of action in one pleading b. The causes of action are against the opposing party c. The party joining the causes of action complies with the rules on joinder of parties under Sec 6, Rule 3, and d. The joinder shall not include special civil actions or actions governed by special rules. Where causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within that court’s jurisdiction and venue lies therein. [Sec. 5, Rule 2] Totality Rule applies in Joinder of Actions Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction Misjoinder of causes of action There is misjoinder of causes of action when conditions for joinder under Section 5, Rule 2 are not met. [Perez v. Hermano, G.R. No. 147417 (2005)]

Page 28 of 525

U.P. LAW BOC

CIVIL PROCEDURE

An erroneously joined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. Misjoinder is not a ground for dismissal of an action [Sec. 6, Rule 2] Subject to waiver If there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action, as long as the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder [Ada v. Baylon, G.R. No. 182435 (2012)] If the court has no jurisdiction to try the misjoined action, then it must be severed. Otherwise, adjudication rendered by the court with respect to it would be a nullity. [Ada v. Baylon, G.R. No. 182435 (2012)]

4. Parties to Civil Actions Plaintiff May refer to the claiming party, counterclaimant, cross-claimant, or third-party plaintiff. [Sec. 1, Rule 3] Defendant May refer to the original defending party, the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party defendant. [Sec. 1, Rule 3] Also includes an unwilling co-plaintiff - any party who should be joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Sec. 10, Rule 3] Who may be parties 1. Natural persons [Sec. 1, Rule 3] 2. Juridical persons [Sec. 1, Rule 3] a. The State and its political subdivisions b. Other corporations, institutions and entities for public interest or public purpose, created by law, and

REMEDIAL LAW

c. Corporations, partnerships, and associations for private interest or purpose to which the law grants a judicial personality, separate and distinct from that of each shareholder, partner, or member d. [Art. 44, Civil Code] 3. Entities authorized by law [Sec. 1, Rule 3] a. A corporation by estoppel is precluded from denying its existence, and the members are liable as general partners [Sec. 21, Corporation Code] b. A partnership with capital of at least P3,000 which fails to comply with the registration requirements is liable as a partnership to third persons [Arts. 1768, 1772, Civil Code] c. The estate of a deceased person is a juridical entity that has a personality of its own [Nazareno v. C.A., G.R. No. 138842 (2000), citing Limjoco v. Intestate Estate of Fragrante, G.R. No. L-770 (1948)] d. A legitimate labor union may sue and be sued in its registered name [Art. 251(e), Labor Code] e. The Roman Catholic Church may be a party; as to its properties, the Archbishop of diocese to which they belong may be a party [Barlin v. Ramirez, G.R. No. 2832 (1906); Versoza v. Fernandez, G.R. No. 32276 (1930)] f. A dissolved corporation may prosecute and defend suits by or against it provided that the suits (i) occur within three (3) years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs [Sec. 139, Revised Corporation Code] 4. [1 Riano 214, 2016 Bantam Ed.] a. Two or more persons not organized as an entity with juridical personality but enter into a transaction b. [Sec. 15, Rule 3] Legal capacity to sue Facts showing the capacity of a party to sue or be sued, or the authority of a party to sue or be

Page 29 of 525

U.P. LAW BOC

CIVIL PROCEDURE

sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, must be averred. [Sec. 4, Rule 8]

a. Real Parties in Interest; Indispensable Parties; Representatives as Parties; Necessary Parties; Indigent Parties; Alternative Defendants i. Real Parties in Interest The party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit [Sec. 2, Rule 3] Nature of interest The interest must be real, which is a present and substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. [Rayo v. Metrobank, G.R. No. 165142 (2007)] It should be material and direct, as distinguished from a mere incidental interest [Mayor Rhustom Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)] Why necessary to determine the real party in interest General rule: Every action must be prosecuted or defended in the name of the real party in interest. Exception: Unless otherwise provided by law or the Rules. [Sec. 2, Rule 3] If the suit is not brought in the name of or against the real party-in-interest, the defendant must set out in his answer as an Affirmative Defense the ground that the complaint “states no cause of action.” [Sec 12, Rule 8] Spouses as parties General rule: Husband and wife shall sue and be sued jointly. Exception: As provided by law. [Sec. 4, Rule 3]

REMEDIAL LAW

Remedies for the Plaintiff 1. Amendment of pleadings [Alonso v. Villamor, G.R. No. L-2352 (1910)]; or 2. Complaint may be deemed amended to include the real party-in-interest [Balquidra v. CFI Capiz, G.R. No. L-40490 (1977)] When real party-in-interest bound despite not being formally impleaded As an exception, the real litigant may be held bound as a party even if not formally impleaded, provided he had his day in court. [Albert v. University Publishing Co., G.R. No. L9300 (1958)] ii. Indispensable Parties A real party-in-interest without whom no final determination can be had of an action [Sec. 7, Rule 3] An indispensable party is one whose interest in the subject matter of the suit and the relief sought are so inextricably intertwined with the other parties that his legal presence as a party to the proceeding is an absolute necessity. [Benedicto-Munoz v. Cacho-Olivares, G.R. No. 179121 (2015)] A party is not indispensable if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does not complete justice to the parties in court. [Benedicto-Munoz v. Cacho-Olivares, G.R. No. 179121 (2015)] iii. Representatives as Parties A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or the ROC. [Sec. 3, Rule 3] Beneficiary to be included in the title of the case Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and

Page 30 of 525

U.P. LAW BOC

shall be deemed to be the real party in interest. [Sec. 3, Rule 3] Minor or incompetent person as party A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Sec. 5, Rule 3] iv. Necessary Parties A necessary party is not one who is indispensable but, rather, one who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. [Sec. 8, Rule 3] Indispensable Parties Must be joined under any and all conditions [Borlasa v. Polistico, G.R. No. 22909 (1925)] Presence is mandatory, he must be joined because the court cannot proceed without him [1 Riano 281, 2014 Bantam Ed.]

No final determination can be had of a case without his presence.

REMEDIAL LAW

CIVIL PROCEDURE

v. Indigent Parties Indigent Parties [ Rule 21]

One who has no money or property sufficient and available for food, shelter, and basic necessities [Sec. 21, Rule 3]

Necessary Parties May be joined whenever possible [Borlasa v. Polistico, G.R. No. 22909 (1925)] Presence is not mandatory because his interest is separable from that of the indispensable party. [1 Riano 281, 2014 Bantam Ed.] Final decree can be had in a case even without a necessary party. [Chua v. Torres, G.R. No. 151900 (2005); Seno v. Mangubat, G.R. No. L-44339 (1987)]

1. Exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him 2. Amount of the docket and other

Page 31 of 525

Indigent Litigants [Sec 19, Rule 141] One whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee, and who does not own real property with a fair market value of more than PHP300,000 To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income above mentioned, nor they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit 1. Exempt from the payment of legal fees. 2. The legal fees shall be a lien on any judgment rendered in the case favorably to the indigent litigant, unless the court otherwise provides

U.P. LAW BOC

lawful fees shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides Consequence if party not actually indigent: The proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose

CIVIL PROCEDURE

REMEDIAL LAW

inconsistent with a right to relief against the other [Sec. 13, Rule 3]

b. Compulsory and Joinder of Parties

Permissive

General Rule: The joinder of parties is permissive

Any falsity in the affidavit of a litigant or a disinterested party shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred

Summary of rules for indigent litigants If the applicant for exemption meets the salary and property requirements under Sec. 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Sec. 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption. [Sps. Algura v. City of Naga, G.R. No. 150135 (2006)] vi. Alternative Defendants Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be

Exception: It is compulsory when the one involved is an indispensable party. [Crisologo v. JEWN Agro-Industrial Corporation, G.R. No. 196894 (2014)] i. Compulsory Joinder Parties in interest without whom no final determination can be had of an action (i.e. indispensable parties) shall be joined either as plaintiffs or defendants. [Sec. 7, Rule 3] Effect of non-joinder of indispensable parties The absence of an indispensable party renders all subsequent actions of the trial court null and void for want of authority to act, not only as to the absent parties but even as to those present. [Moldes v. Villanueva, G.R. No. 161955 (2012)] Failure to implead an indispensable party is not a ground for dismissal of an action, as the remedy in such a case is to implead the party claimed to be indispensable, considering that the parties may be added by order of the court, on motion of the party or on its own initiative at any stage of the action. [Galido v. Magrare, G.R. No. 206584 (2016)] Effect of misjoinder or non-joinder of parties; when ordered by the court It is when the order of the court to implead an indispensable party goes unheeded that the case may be dismissed. The court has authority to dismiss a complaint due to the fault of the plaintiff when he does not comply with any order of the court [Plasabas v. CA, G.R. No. 166519 (2009)]

Page 32 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

Effect of non-joinder of necessary parties Non-joinder of a necessary party does not prevent the court from proceeding in the action. The judgment rendered therein shall not prejudice the rights of such necessary party [Sec. 9, par. 3, Rule 3] Remedy in case of non-joinder of necessary parties When a pleading asserting a claim omits to join a necessary party, the pleader must: 1. Set forth the name of the necessary party, if known, and 2. State the reason why he is omitted [Sec. 9, par. 1, Rule 3] Should the court find the reason for the nonjoinder of a necessary party unmeritorious, it may order the inclusion of such necessary party, if jurisdiction over his person may be obtained. Failure to comply with such order without justifiable cause shall be deemed a waiver of the claim against such party [Sec. 9, pars. 1-2, Rule 3] ii. Permissive Joinder All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest [Sec. 6, Rule 3] Requisites 1. The right to relief arises out of the same transaction or series of transactions; 2. There is a question of law or fact common to all the plaintiffs or defendants; and 3. Such joinder is not otherwise proscribed by the provisions of the ROC on jurisdiction and venue [1 Regalado 91, 2010 Ed.]

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party. One of the conditions for such joinder of causes of action is that the party joining the causes of action shall comply with the rules on joinder of parties. [Sec. 5, Rule 2] iii. Misjoinder and Non-Joinder of Parties Misjoinder When one is made a party to the action although he should not be impleaded. [1 Riano 285, 2014 Bantam Ed.] Non-joinder When one is supposed to be joined but is not impleaded in the action. [1 Riano 285, 2014 Bantam Ed.] Effect of misjoinder or non-joinder of parties Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action [Sec. 11, Rule 3] Objections to defects in parties Objections should be made at the earliest opportunity. Thus, objections to misjoinder cannot be raised for the first time on appeal. [Lapanday Agricultural & Development Corporation v. Estita, G.R. No. 162109 (2005)] iv. Class Suit Requisites a. Subject matter of the controversy is one of common or general interest to many persons; b. The persons are so numerous that it is impracticable to join them all as parties; c. The court finds a number of them sufficiently numerous and representative of the class as to fully protect the interests of all concerned; and d. The representative sues or defends for the benefit of all. [Sec. 12, Rule 3]

Page 33 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

Only general interest in the subject matter of litigation required A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation [Mathay v. Consolidated Bank & Trust Company, G.R. No. L-23136 (1974)]

damages on behalf of individual planters for an allegedly libelous article in an international magazine. There is no common or general interest in the reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others [Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. 63559 (1986)]

Right to intervene In a class suit, any party in interest shall have the right to intervene to protect his individual interest [Sec. 12, Rule 3]

There is no class suit in an action for damages filed by the relatives of the fatalities in a plane crash. There is no common or general interest in the injuries or death of all passengers in the plane. Each has a distinct and separate interest which must be proven individually [1 Riano 244, 2016 Bantam Ed.]

No dismissal upon the instance of plaintiff or due to compromise A class suit shall not be dismissed or compromised without the approval of the court [Sec. 2, Rule 17] Examples of Class Suits 1. Taxpayer’s suit A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi [1 Regalado 99, 2010 Ed.] 2. Derivative suit A derivative suit is an action brought by a stockholder on behalf of the corporation to enforce corporate rights against the corporation’s directors, officers or other insiders. Under the Revised Corporation Code, the directors or officers, as provided under the by-laws, have the right to decide whether or not a corporation should sue. Since these directors or officers will never be willing to sue themselves, or impugn their wrongful or fraudulent decisions, stockholders are permitted by law to bring an action in the name of the corporation to hold these directors and officers accountable. In derivative suits, the real party in interest is the corporation, while the stockholder is a mere nominal party [Ang v. Ang, G.R. No. 201675 (2013)]

v. Suits Against Entities Without Juridical Personality Requisites a. There are 2 or more persons not organized as a juridical entity; and b. They enter into a transaction. [Sec. 15, Rule 3] Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. [Sec. 15, Rule 3] Note: The authority to be a party under Sec. 15, Rule 3 is confined only to being a defendant and not as a plaintiff. This is evident from the words, “they may be used” [1 Riano 265, 2014 Bantam Ed.] When persons associated in an entity without juridical personality are sued, the service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Sec. 7, Rule 14]

Not a Class Suit There is no class suit in an action filed by associations of sugar planters to recover Page 34 of 525

vi. Effect of Death of Party Litigant

U.P. LAW BOC

CIVIL PROCEDURE

Duty of counsel upon death of client a. Inform court of such fact within 30 days after the death; and b. Give the name and address of the legal representative. [Sec. 16, Rule 3] Effect of failure to comply Failure to comply is a ground for disciplinary action [Sec. 16, Rule 3] Action of court upon notice of death Upon receipt of notice, the court shall determine if the claim is extinguished by such death. a. Claim does not survive: substitution would not be ordered b. Claim survives: the court shall order the legal representative of the deceased to appear and be substituted for him within 30 days [Sec. 16, Rule 3] [1 Riano 286, 2014 Bantam Ed., suggesting Aguas v. Llemos, G.R. No. L-18107 (1962)] Survival of Action Survival depends on the nature of the action and the damage sought. Actions that survive

Actions that do not survive

The wrong complained of affects primarily and principally property and property rights

The injury complained of is personal to the person

Injuries to the person are merely incidental [Cruz v. Cruz, G.R. No. 173292 (2010)]

Property and property rights affected are incidental [Cruz v. Cruz, G.R. No. 173292 (2010)]

E.g. Actions to recover real and personal property from the estate; actions to enforce a lien thereon; and actions to recover damages for an injury to person or property [Sec. 1, Rule 88; Aguas v. Llemos, G.R. No. L18107 (1962)]

E.g. Action for support, annulment of marriage, legal separation [1 Riano 291, 2014 Bantam Ed.]

REMEDIAL LAW

Court may order the opposing party, within a specific time, to procure the appointment of an administrator or executor of the estate in the ff. cases a. No legal representative is named; or b. The one so named fails to appear within the specified period. [Sec. 16, Rule 3] Substitution Summons not necessary The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party [Ferreria v. Vda de Gonzales, G.R. No. L11567 (1986)] Effect of failure to order substitution Results in failure to acquire jurisdiction over the representative or heirs of the deceased party. Consequently, any judgment rendered against such deceased party shall be null and void for lack of jurisdiction over the persons of the legal representative or of the heirs upon whom the trial and the judgment would be binding [The Heirs of Vda. De Haberer v. Court of Appeals, et al., G.R. Nos. L-42699 to L-2709 (1981)] Rule in case of death or separation of party who is a public officer The action may be continued or maintained by or against his successor [Sec. 17, Rule 3] Requisites: a. A public officer is a party to an action in his official capacity; b. During the pendency of the action, he dies, resigns, or otherwise ceases to hold office; c. Within 30 days after the successor takes office or such time as may be granted by the court, any party shows to the satisfaction of the court, that • there is a substantial need for continuing or maintaining such action; and • the successor adopts or continues his predecessor’s action, or threatens to do so d. Before a substitution is made, the party or officer to be affected shall be given

Page 35 of 525

U.P. LAW BOC

CIVIL PROCEDURE

reasonable notice of the application therefor and accorded an opportunity to be heard UNLESS he expressly assents thereto [Sec. 17, Rule 3] Action on contractual money claims Shall not be dismissed but shall instead be allowed to continue until entry of final judgment [Sec. 20, Rule 3] Requisites a. Action is for recovery of money, b. The claim arose from express or implied contract, and c. Defendant dies before the entry of final judgment in the court in which the action was pending. [Sec. 20, Rule 3] Effect If the plaintiff obtains a favorable judgment, said judgment shall be enforced following the procedure provided for in the ROC for prosecuting claims against the estate of a deceased person [Sec. 20, Rule 3] He/She is not supposed to file a motion for the issuance of an order and writ of execution of the judgment [1 Riano 201, 2014 Bantam Ed.]

5. Venue Venue refers to the place where a civil action may be tried; in civil cases, it essentially concerns a rule of procedure which looks primarily at the convenience of the litigants. [Gumabon, et al. v. Larin, G.R. No. 142523, (2001)] In civil cases, it is a procedural matter and not jurisdictional, as compared to criminal cases, where the venue is jurisdictional. Venue relates only to the place of trial or the geographical location in which an action or proceeding should be brought. It is intended to accord convenience to the parties and does not equate to the jurisdiction of the court. [Dolot v. Paje, G.R. 199199 (2013)] Choosing the venue of an action is not left entirely to a plaintiff’s caprice; the matter is

REMEDIAL LAW

regulated by the ROC. [Ang v. Sps. Ang, G.R. No. 186993 (2012)] On dismissal based on improper venue Improper venue is no longer one of the grounds for a motion to dismiss under the Amended Rules. However, the ground of the venue being improperly laid is one of those that may be set as an Affirmative Defense in the answer. The failure to raise the affirmative defense in the answer will constitute a waiver of such. [Sec 12, Rule 8] However, the court may make a motu proprio dismissal for improper venue, inter alia, in actions covered by the Rules on Summary Procedure [Sec. 4], Rule of Procedure for Small Claims cases [Sec. 9], and in ejectment cases. [Sec. 5, Rule 70]

a. Venue of Real Actions Real actions shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Sec. 1, Rule 4] The rule, in its simplified form, means that if the action is real, the action is local, as opposed to transitory, and the venue is the place where the real property involved, or any portion thereof, is situated. [1 Riano 151, 2016 Bantam Ed.] Where the subject-matter of the action involves various parcels of land situated in different provinces, the venue is determined by the singularity or plurality of the transactions involving said parcels of land. Thus, where said parcels are the objects of one and the same transaction, the venue is in the court of any of the provinces wherein a parcel of land is

Page 36 of 525

U.P. LAW BOC

CIVIL PROCEDURE

situated. [1 Regalado 118, 2010 Ed., citing El Hogar Filipino v. Seva, G.R. No. 36627 (1932)]

b. Venue of Personal Actions All other actions may be commenced and tried, at the plaintiff’s election: a. Where the plaintiff or any of the principal plaintiffs resides, or b. Where the defendant or any of the principal defendants resides, or c. In case of a non-resident defendant, where he may be found. [Sec. 2, Rule 4] The plaintiff or the defendant must be residents of the place where the action has been instituted at the time the action is commenced [Ang v. Sps. Ang, G.R. No. 186993 (2012)] Definition of residence The term “resides” as employed in the rule means the place of abode, whether permanent or temporary, of the plaintiff or defendant, as distinguished from “domicile” which denotes a fixed permanent residence to which, when absent, one has the intention of returning. [Dangwa Transportation Company v. Sarmiento, G.R. No. L-22795 (1977)] The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency [Boleyley v. Villanueva, G.R. No. 128734 (1999)] A corporation cannot be allowed to file personal actions in a place other than its principal place of business unless such place is also the residence of a co-plaintiff or defendant. [Davao Light v. CA, G.R. No. 111685 (2001)]

REMEDIAL LAW

c. Venue of Actions Against NonResidents Non-resident found in the Philippines a. Personal action: where the nonresident defendant may be found, as authorized by Sec. 2, Rule 4, but with an additional alternative venue, i.e., the residence of any of the principal plaintiffs, pursuant to Secs. 2 and 3, Rule 4. [1 Regalado 121, 2010 Ed.] b. Real action: in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. [Sec. 1, Rule 4] Non-resident not found in the Philippines, and the action affects: a. Personal status of plaintiff – where plaintiff resides, or b. Property of defendant in the Philippines – where the property, or any portion thereof, is situated or found [Sec. 3, Rule 4]

d. When the Rules on Venue Do Not Apply a. Cases where a specific rule or law provides otherwise; examples: 1. Quo warranto proceeding commenced by the Solicitor General, [Sec. 7, Rule 66] • The action may be brought in the Supreme Court, the Court of Appeals, or in a Regional Trial Court in the City of Manila. 2. Petition for a continuing writ of mandamus, and [Sec. 2, Rule 8, Rules of Procedure for Environmental Cases] • The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. 3. Civil and criminal action for damages in written defamation. [Art. 360, RPC] • Note that for written defamations, the default venue would be the place where the libelous article is

Page 37 of 525

U.P. LAW BOC



CIVIL PROCEDURE

first published or where any of the offended parties reside In case that the offended party is a public officer, the proper venue would be either where he holds office at the time of the commission of the crime, or the place where the libelous article is first published [Art. 360, RPC]

b. Parties have validly agreed in writing before the filing of an action on the exclusive venue thereof. [Sec. 4, Rule 4]

e. Effects Venue

of

Stipulations

on

The parties may stipulate on the venue as long as the agreement is: a. In writing, b. Made before the filing of the action, and c. Exclusive as to the venue Types of stipulations on venue a. Restrictive: suit may be filed only in the place agreed upon b. Permissive: parties may file their suit not only in the place agreed upon but also in the places fixed by the rules [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)] Requirement to be binding To be binding, the parties must have agreed on the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive [1 Regalado 124, 2010 Ed.] In the absence of qualifying or restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules [Polytrade Corp. v. Blanco, G.R. No. L-27033 (1969)] When stipulation may be disregarded The court may declare agreements on venue as contrary to public policy if such stipulation

REMEDIAL LAW

unjustly denies a party a fair opportunity to file suit in the place designated by the Rules. The court shall take into consideration the economic conditions of the parties, the practical need to avoid numerous suits filed against the defendant in various parts of the country and the peculiar circumstances of the case [1 Regalado 124-125, 2010 Ed., citing Hoechst Philippines v. Torres, G.R. No. L44351 (1978)] A complaint directly assailing the validity of the written instrument itself should not be bound by the exclusive venue stipulation contained therein and should be filed in accordance with the general rules on venue. [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

6. Pleadings Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Sec. 1, Rule 6] Pleadings v. Motions Pleadings Purpose is to submit a claim or defense for Purpose appropriate judgment [Sec. 1, Rule 6] Judgment, which by its Relief character Sought finally disposes of the case [1 Riano 339, 2005 Ed.]

Motion Application for relief other than by a pleading [Sec. 1, Rule 15] Other reliefs that are not included in a judgment

Ultimate facts are essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient [Remitere v. Montinola, G.R. No. L-19751 (1966)].

Page 38 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

Prior to the Amended Rules, evidentiary facts were supposed to be omitted from pleadings, as these matters should be presented during trial. However, the contents of pleadings are no longer limited to ultimate facts since under Sec. 6, Rule 7, the witnesses, summaries of their testimonies, their judicial affidavits, and documentary and object evidence should already be included in the pleading. Likewise, Sec. 1 of Rule 8 also states that every pleading must contain the ultimate facts, including the evidence on which the party pleading relies.

a. Kinds of pleadings and when they should be filed i. Complaint The complaint is the pleading alleging the plaintiff’s or claiming party’s cause or causes of action. [Sec. 3, Rule 6] Note: Counterclaims, cross-claims, third-party complaints, and complaints-in-intervention are kinds of complaints. [Sec. 2, Rule 6] Function 1. To inform the defendant clearly and definitely of the claims made against him so that he may be prepared to meet the issues at trial. 2. To inform the defendant of all material facts on which the plaintiff relies to support his demand. 3. To state the theory of a cause of action which forms the basis of the plaintiff's claim of liability [Tantuico v. Republic, G.R. No. 89114 (1991)] Facts alleged in the complaint are judicial admissions that bind the plaintiff and may be the basis to dismiss the complaint [Luzon Development Bank v. Conquilla, G.R. No. 163338 (2005)]. Allegations of the complaint determine the nature of the cause of action and the body or court which has jurisdiction over the action [Ching vs Subic Bay Golf and Country Club, Inc, G.R. No. 174353 (2014)]

ii. Answer An answer is a pleading in which a defending party sets forth his or her defenses. [Secs. 2 and 4, Rule 6] 1. Negative Defenses A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his or her cause or causes of action. [Sec. 5 (a), Rule 6] Note: A general denial is considered as an admission. [1 Riano 293, 2016 Bantam Ed.] There are three kinds of specific denials, namely: 1. Absolute Denials - made when the defendant specifies each material allegation which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. [PBCOM v. Go, G.R. No. 175514 (2011)] 2. Partial Denials - made when the defendant does not make a total denial of the material allegations, but denies only a part of the averment. Here, he specifies which part of the truth he admits and likewise denies. [1 Riano 269, 2016 Bantam Ed.] 3. Denial through Disavowal of Knowledge - made when the defendant alleges he “is without knowledge or information sufficient to form a belief as to the truth of the material averments in the complaint”. [Warner Barnes v. Reyes, 103 Phil. 662 (1958)] 2. Negative Pregnant A denial, pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines, G.R. No. 87434 (1993)] A negative pregnant does not qualify as a specific denial. It is conceded to be actually an

Page 39 of 525

U.P. LAW BOC

CIVIL PROCEDURE

admission. It refers to a denial which implies its affirmative opposite by seeming to deny only a qualification or an incidental aspect of the allegation but not the main allegation itself [1 Riano 358, 2014 Bantam Ed.] Examples: When the defense alleges “I have never borrowed money from the plaintiff from 2011 to 2013,” such may imply that there was borrowing of money at other times. [1 Riano 297, 2016 Bantam Ed.] 3. Affirmative Defenses An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him or her. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Affirmative defenses may also include grounds for the dismissal of a complaint, specifically: 1. That the court has no jurisdiction over the subject matter 2. That there is another action pending between the same parties for the same cause (lis pendens), or 3. That the action is barred by a prior judgment. [Sec. 5 (b), Rule 6] Note: The foregoing three (3) grounds need not be included in the answer due to the use of the word “may”. Also note that these grounds for dismissal (in addition to statute of limitations) may still be raised at any time since they are not waivable. [Sec. 1, Rule 9 in relation to Sec. 12 (a), Rule 15] Further discussion on affirmative defenses under 4. Allegations in a Pleading. iii. Counterclaims Any claim which a defending party may have against an opposing party [Sec. 6, Rule 6]

Compulsory Counterclaim A compulsory counterclaim, which a party has at the time the answer is filed, shall be contained in the answer [Sec. 8, Rule 11] because a compulsory counterclaim not raised in the same action shall be barred, unless otherwise allowed by these rules. [Sec. 7, Rule 6] Not an initiatory pleading

REMEDIAL LAW

Permissive Counterclaim

Not subject to the rule on compulsory counterclaims. Hence, it may be set up as an independent action and will not be barred if not contained in an answer to the complaint.

Initiatory pleading

Should be accompanied by a certification against forum shopping and, Said certifications whenever required are not required by law, also a certificate to file action issued by the Lupong Tagapamayapa Must be answered by the party against Failure to answer a whom it is compulsory interposed, counterclaim is not a otherwise he may be cause for a default declared in default declaration. as to the counterclaim [1 Riano 385-387, 2014 Bantam Ed.] How raised 1. By including it in the Answer • A compulsory counterclaim or a crossclaim that a defending party has at the time he or she files his or her answer

Page 40 of 525

U.P. LAW BOC

shall be contained therein. [Rule 11, Sec. 8] 2. By filing after the Answer • Omitted Compulsory Counterclaim If a counterclaim already existed at the time of the filing of the answer and the defendant fails to raise it, it shall generally be barred. [Sec. 7, Rule 6] However, an exception to this would be a counterclaim by amendment before judgment, when the counterclaim was not set up due to oversight, inadvertence, or excusable neglect. [Sec. 10, Rule 11] •

REMEDIAL LAW

CIVIL PROCEDURE

Compulsory Counterclaim arising after Answer - A counterclaim, which either matured or was acquired by a party after serving his answer may, with permission of the court, be presented as a counterclaim by supplemental pleading before judgment. [Sec. 9, Rule 11] 1. Compulsory

Requisites 1. It arises out of, or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim, 2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, and 3. It must be within the jurisdiction of the court both as to the amount and the nature, except that in an original action before the RTC, the counter-claim may be considered compulsory regardless of the amount. [Sec. 7, Rule 6] A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint [Gojo v. Goyala, G.R. No. L-26768 (1970)].

incompatible remedies. If he files a motion to dismiss, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. [Financial Building Corp. v. Forbes Park Association, G.R. No. 133119 (2000)] On amounts 1. In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Sec. 7, Rule 6] 2. If a counterclaim is filed in the MTC in excess of its jurisdictional limits, the excess is considered waived. [Agustin v. Bacalan, G.R. No. L-46000 (1985)] 2. Permissive A counterclaim is permissive if it does not arise out of, nor is necessarily connected with, the subject matter of the opposing party’s claim. This is not barred even if not set up in the action. [1 Herrera 686, 2007 Ed.] Basically, a permissive counterclaim is one where any of the aforementioned requirements of a compulsory counterclaim are missing. [1 Riano 320, 2016 Bantam Ed.] The rule in a permissive counterclaim is that for the trial court to acquire jurisdiction, the counterclaimant is bound to pay the prescribed docket fees. [1 Riano 387, 2014 Bantam Ed., citing GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)] Note: Even if the counterclaim arises out of the subject-matter of the opposing party's claim but it is not within the jurisdiction of the regular courts of justice, or it requires for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction, it is considered as only a permissive counter­claim and is not barred even if not set up in the action. (see also Sec. 2, Rule 9) [1 Regalado 143-144, 2010 Ed.]

The filing of a motion to dismiss and the setting up of a compulsory counterclaim are Page 41 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

Determining whether a counterclaim is compulsory or permissive A positive answer on all four the following tests would indicate that the counterclaim is compulsory a. Are the issues of fact and law raised by the claim and counterclaim largely the same? b. Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? c. Will substantially the same evidence support or refute the plaintiff's claim as well as the counterclaim? d. Is there any logical relation between the claim and counterclaim? [GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)]

oversight, inadvertence, or excusable neglect. [Sec. 10, Rule 11]

3. Effect on counterclaim when complaint is dismissed

Improper cross-claims 1. Where the cross-claim is improperly allowed, the remedy is certiorari [Malinao v. Luzon Surety, G.R. No. L-16082 (1964)] 2. The dismissal of a cross-claim is unappealable when the order dismissing the complaint becomes final and executory [Ruiz, Jr. v. CA, G.R. No. 101566 (1993)] 3. A cross-claim is not allowed after declaration of default of cross-claimant. To allow the cross-claim to remain would be tantamount to setting aside the order of default the cross-claimant, who had been previously declared default, would reobtain a standing in court as party litigant [Tan v. Dimayuga, G.R. No. L-15241 (1962)]

The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer in the following cases 1. Dismissal under Sec. 2, Rule 17 – where the plaintiff files a motion to dismiss the case, after the defendant had filed a responsive pleading 2. Dismissal under Sec. 3, Rule 17 – where the complaint is dismissed due to the fault of the plaintiff iv. Cross-claims A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross- claim may cover all or part of the original claim. [Sec. 8, Rule 6]

Cross-claim arising after Answer - A crossclaim, which either matured or was acquired by a party after serving his answer may, with permission of the court, be presented as a cross-claim by supplemental pleading before judgment. [Sec. 9, Rule 11] When a cross-claim is proper 1. It arises out of the subject matter of the complaint. 2. It is filed against a co-party. 3. The cross-claimant stands to be prejudiced by the filing of the action against him [Londres v. CA, G.R. No. 136427 (2002)]

v. Third (fourth, complaints

etc.)

party

Existing Cross-claim - A cross-claim that a defending party has at the time he or she files his or her answer shall be contained therein. [Sec. 8, Rule 11]

A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant for contribution, indemnity, subrogation or any other relief, in respect of his or her opponent's claim. [Sec. 11, Rule 6]

However, an exception to this would be a cross-claim by amendment before judgment, when the counterclaim was not set up due to

Requisites 1. The party to be impleaded must not yet be a party to the action

Page 42 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

2. The claim against the third-party defendant must belong to the original defendant 3. The claim of the original defendant against the third-party defendant must be based upon the plaintiff's claim against the original defendant, 4. The defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff [Philtranco Service Enterprises, Inc. v. Paras, G.R. No. 161909 (2012)], and 5. The court grants leave of court for the filing of the same [Sec. 11, Rule 6] When the third (fourth, etc.) party complaint will not be granted leave, and the court will require the filing of a separate action: 1. Where matters extraneous to the issue in the principal case are raised, or 2. Where a new and separate controversy would be introduced in the action. [Sec. 11, Rule 6] When, despite grant of leave allowing the filing of a third-party complaint, the court dismisses the third (fourth) party complaint 1. The third-party defendant cannot be located within 30 days from grant of leave. [Sec. 11, Rule 6] Additional rules Where the trial court has jurisdiction over the main case, it also has jurisdiction over the thirdparty complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety, G.R. No. L27802 (1968)] A third-party complaint is not proper in an action for declaratory relief. [Commissioner of Customs v. Cloribel, G.R. No. L-21036 (1977)] vi. Complaint-in-intervention Intervention is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. [Restaurante Las Conchas v. Llego, G.R. No.

119085 (1999), citing First Philippine Holdings Corporation v. Sandiganbayan, G.R. No. 88345 (1996)] Further discussion Intervention

under

Section

11.

vii. Reply A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged in, or relating to actionable documents attached to an answer. This is so, because under the Amended Rules, the plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer. [Sec. 10, Rule 6] Note: An actionable document is a written document that’s the basis of one’s cause of action or defense. [1 Riano 280, 2016 Bantam Ed.] Note: The function of a reply is to merely deny the allegations raised in the answer with the actionable document, not to impose new causes of action which arise from the answer. If the plaintiff wants to interpose a new claim on the basis of the actionable document attached in the answer, he should do this through an amended or supplemental complaint. 1. The amended complaint must be with leave of court following Sec. 3, Rule 10. 2. The supplemental complaint is allowed only if it pertains to transactions, occurrences, or events which have happened since the date of the complaint following Sec. 6, Rule 10. A reply is not the proper responsive pleading to a counterclaim or a cross-claim, as the proper responsive pleading would be an answer to the counterclaim/cross-claim. [1 Riano 335, 2016 Bantam Ed.] If an actionable document is attached to the reply, the defendant may file a rejoinder. The rejoinder must only deny, or allege facts in

Page 43 of 525

U.P. LAW BOC

CIVIL PROCEDURE

denial or avoidance of the new matters alleged in actionable document attached to the reply. [Sec. 10, Rule 6] General Rule: There is no need to file a reply since all new matters alleged in the answer are deemed controverted. [Sec. 10, Rule 6] Exception: When an actionable document is attached to the answer, the plaintiff must file a reply in order to avoid the admission of the genuineness and due execution of the document attached. Failure to file a reply would lead to the admission of the aforementioned matters. [1 Riano 336, 2016 Bantam Ed.] viii. Extensions of time to file General Rule: A motion for extension to file any pleading is prohibited and is considered a mere scrap of paper. [Sec. 11, Rule 11] A motion for extension of time to file pleadings, affidavits, or any other papers is a prohibited motion and shall not be allowed. [Sec. 12 (e), Rule 15] Exception: A motion for extension of time to file an answer may be allowed if: 1. For meritorious reasons, 2. For a period not more than 30 calendar days, and 3. A party may only avail of 1 motion for extension The court may still allow, in its discretion, any other pleading to be filed after the time fixed by the Rules. [Sec. 11, Rule 11]

b. Pleadings allowed in small claims cases and cases covered by the Rules on Summary Procedure i. Revised Rules of Procedure for Small Claims Cases

REMEDIAL LAW

Forms 1. A small claims action is commenced by filing with the court an accomplished and verified Statement of Claim (Form 1-SCC) in duplicate, accompanied by a Certification Against Forum Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits (Form 1-A-SCC) [Sec. 6] 2. The Summons to be served on the defendant shall be accompanied by a copy of the Statement of Claim/s and documents submitted by plaintiff, and a blank Response Form (Form 3-SCC) to be accomplished by the defendant [Sec. 12]. The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a nonextendible period of 10 days from receipt of summons [Sec. 13]. a. If at the time the action is commenced, the defendant possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suing on the counterclaim [Sec. 15]. b. The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid [Sec. 15]. Prohibited pleadings and motions 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction 2. Motion for a bill of particulars 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial 4. Petition for relief from judgment

Page 44 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

5. Motion for extension of time to file pleadings, affidavits, or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third-party complaints, and 12. Interventions [Sec. 14] ii. Rule on Summary Procedure Allowed Pleadings 1. Complaints 2. Compulsory counterclaims pleaded in the Answer 3. Cross-claims pleaded in the Answer; and 4. Answers thereto [Sec. 3[A], II] Prohibited pleadings, motions, or petitions 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings 2. Motion for a bill of particulars 3. Motion for new trial, or for reconsideration of a judgment, or for opening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints, and 12. Interventions [Sec. 19]

c. Parts and Pleading

Contents

of

a

i. Caption Sets forth the: 1. Name of the court 2. Title of the action (i.e. the names of the parties and respective participation) and 3. The docket number, if assigned [Sec. 1, Rule 7] Body – Sets forth the pleading’s designation, the allegations of party's claims or defenses, the relief prayed for, and its date 1. Paragraphs The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. 2. Headings When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. 3. Relief The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable.

Page 45 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

General Rule: It is a settled rule that a court cannot grant a relief not prayed for by a party in the pleadings, or in excess of that being sought. [Bucal v. Bucal, G.R. No. 206957 (2015)] Exception: Because the rules allow a general prayer for such other reliefs as may be deemed just and equitable, the court may grant reliefs that are not specifically prayed for as long as they are just and equitable. [1 Riano 257, 2016 Bantam Ed.] 4. Date Every pleading shall be dated. [Sec. 2, Rule 7]

On whom sanction imposed: The attorney, law firm, or the party that violated the rule. Note: The law firm shall be jointly and severally liable for a violation committed by its partner, associate, or employee. Sanction may include, but shall not be limited to: a. Non-monetary directive or sanction b. An order to pay a penalty in court c. An order directing payment of attorney’s fees and other expenses Note: the lawyer or law firm cannot pass on the monetary penalty to the client. [Sec. 3, Rule 7]

ii. Signature and address Every pleading and other written submissions to the court must be signed by the party or counsel representing him or her. [Sec. 3, Rule 7] The signature of counsel constitutes a certificate that he or she has read the pleading and document and that such pleading or document: a. Is not being presented for any improper purpose to harass, delay, or increase cost of litigation b. Has claims, defenses, and other legal contentions that are warranted by law or jurisprudence, and not merely based on frivolous arguments contrary to jurisprudence c. Has factual contentions that have evidentiary basis or will most likely be supported by evidence after availment of modes of discovery, and d. The denials of facts are based on evidence or based on belief of lack of information if specially so identified. [Sec. 3, Rule 7] Effect of violation of the rule: The court may on motion or motu proprio, after notice and hearing, impose an appropriate sanction or refer such to the proper office for disciplinary action, unless exceptional circumstances are present.

Under the old rules, an unsigned pleading may be remedied if it was due to mere inadvertence and not intended for delay. However, under the Amended Rules, an unsigned pleading may no longer be remedied since the provision for such has been deleted from the amended rules of court. The lawyer, law firm, or party responsible for filing an unsigned pleading may thus be sanctioned under this rule unless there are exceptional circumstances. Also note that an unsigned pleadings remains to be without legal effect, and is treated as “a mere scrap of paper.” iii. Verification General Rule: Pleadings need not be under oath or verified. [Sec. 4, Rule 7] Exception: When otherwise specifically required by law or rule. [Sec. 4, Rule 7] The following pleadings require verification, to wit: 1. Pleadings filed in the inferior courts in cases covered by the Rules on Summary Procedure [Sec. 3B, Revised Rules on Summary Procedure] 2. Petition for relief from judgment or order [Sec. 3, Rule 38] 3. Petition for review from RTC to the CA [Sec. 1, Rule 42] 4. Petition for review from quasi-judicial agencies to the CA [Sec. 5, Rule 43]

Page 46 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

5. Appeal by certiorari from the CTA to the SC [Sec. 12, R.A. 9282 amending Sec. 19, R.A. 1125] 6. Appeal by certiorari from CA to the SC [Sec. 1, Rule 45] 7. Petition for annulment of judgments or final orders and resolutions [Sec. 1, Rule 47] 8. Complaint for injunction [Sec. 4, Rule 58] 9. Application for appointment of receiver [Sec. 1, Rule 59] 10. Application for support pendente lite [Sec. 1, Rule 69] 11. Petition for certiorari against judgments, final orders, or resolutions of constitutional commissions [Sec. 2, Rule 64] 12. Petition for certiorari [Sec. 1, Rule 65] 13. Petition for prohibition [Sec. 2, Rule 65] 14. Petition for mandamus [Sec. 3, Rule 65] 15. Petition for quo warranto [Sec. 1, Rule 66] 16. Complaint for expropriation [Sec. 1, Rule 67] 17. Complaint for forcible entry or unlawful detainer [Sec. 4, Rule 70] 18. Petition for indirect contempt [Sec. 4, Rule 71] 19. Petition for appointment of a general guardian [Sec. 2, Rule 93] 20. Petition for leave to sell or encumber property of the ward by a guardian [Sec. 1, Rule 95] 21. Petition for declaration of competency of a ward [Sec. 1, Rule 97] 22. Petition for habeas corpus [Sec. 3, Rule 102] 23. Petition for change of name [Sec. 2, Rule 103] 24. Petition for voluntary judicial dissolution of a corporation [Sec. 1, Rule 104] 25. Petition for cancellation or correction of entries in the civil registry [Sec. 1, Rule 108] How Verified By an affidavit under oath with the following attestations: a. The allegations in the pleading are true and correct based on personal knowledge or authentic documents; b. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

c. The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery. The authorization of the affiant to act on behalf of the party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading. [Sec. 4, Rule 7] Note: It is submitted that the requirement of the attachment of the document of authorization implies that the authority of such person may no longer be proven during trial. This, therefore, overturns existing jurisprudence which provides that proof of one’s authority to sign a verification may be taken up during trial. [246 Corp v. Daway, G.R. No. 157216 (2003)] Proof of authority should already be established by attaching said proof to the pleading. Effect of noncompliance or defective verification General Rule: A pleading required to be verified that contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading. [Sec. 4, Rule 7] Note: An unsigned pleading produces no legal effect and is a “mere scrap of paper.” Exception: Lack of verification is a mere formal, and not a jurisdictional, requirement. As such, a defect in the verification does not render the pleading fatally defective and the court may order its subsequent submission or correction if such serves the ends of justice. [Vda. de Formoso v. PNB, 650 SCRA 35 (2001)] iv. Certification Shopping

Against

Forum

Forum shopping The repeated availment of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the

Page 47 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

same transactions and the same essential facts and circumstances, and all raising substantially the same issues, either pending in or already resolved adversely by some other court [Asia United Bank v. Goodland Company, Inc., G.R. No. 191388 (2011)] Test to determine existence of forum shopping Whether in the two or more cases pending, there is identity of 1. Parties 2. Rights or causes of action, and 3. Relief sought [Huibonhoa v. Concepcion, G.R. No. 153785 (2005)] Certificate of Non-Forum Shopping (CNFS) The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief or in a sworn certification annexed thereto and simultaneously filed therewith 1. That he or she has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action is pending 2. If there is such other pending action or claim, a complete statement of the present status thereof, and 3. If he or she should learn that the same or a similar action or claim has been filed or is pending, he shall report that fact within 5 calendar days to the court wherein his aforesaid complaint or initiatory pleading has been filed. [Sec. 5, Rule 7] What pleadings require a certification against non-forum shopping (Initiatory pleadings) 1. Complaint 2. Permissive counterclaim 3. Cross-claim 4. Third (fourth, etc.) party complain 5. Complaint-in-intervention Who signs: General Rule: Plaintiff or Principal party

Rationale: The plaintiff, not the counsel, is in the best position to know whether he or it has actually filed or caused the filing of a petition. Certification signed by counsel without proper authorization is defective, and a valid cause for dismissal [Anderson v. Ho, G.R. No. 172590 (2013)] Exception: counsel

Authorized

person,

usually

If, for justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf [Vda. de Formoso v. PNB, G.R. No. 154704 (2011)] In cases of a juridical entity, the certification may be executed by a properly authorized person through due authorization by a board resolution. [Cosco v. Kemper, 670 SCRA 343 (2012)] Note: Similar to the new requirement under verification, the authorization of the affiant to act on behalf of the party, should be attached to the pleading. Effect of noncompliant CNFS Defect Effect Not curable by mere amendment of the complaint or other initiatory pleading Failure to comply with the Cause for dismissal requirements of the case, without prejudice, unless otherwise provided, upon motion and after hearing False certification Constitutes indirect contempt of court, Non-compliance with without prejudice to any of the administrative and undertakings therein criminal actions When there is willful Ground for summary and deliberate forum dismissal, with shopping prejudice

Page 48 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Direct contempt of court Cause administrative sanctions

for

[Sec. 5, Rule 7] v. Contents of a Pleading Every pleading stating a party's claims or defenses shall, in addition to those mandated by Section 2, Rule 7, state the following: a. Names of witnesses who will be presented to prove a party's claim or defense; b. Summary of the witnesses' intended testimonies, provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof, and General Rule: Only witnesses whose judicial affidavits areattached to the pleading shall be presented by the parties during trial. Exception: If a party presents meritorious reasons as basis for the admission of additional witnesses c. Documentary and object evidence in support of the allegations contained in the pleading. [Sec. 6, Rule 7] Rationale: To ensure that a person filing a case or a pleading would, at the time of filing, already have evidentiary basis to back the same up, and there would be no delay caused by parties still trying to find evidence as basis for the claims during the pendency of the case. Moreover, all papers and pleadings filed in court must likewise bear the following items: 1. Professional Tax Receipt Number 2. IBP Official Receipt Number 3. Roll of Attorneys’ Number

REMEDIAL LAW

4. MCLE Certificate of Compliance, or Certificate of Exemption Note: Failure to comply with the first three requirements allow the court to not take action with the pleading, without prejudice to possible disciplinary actions against the erring counsel. Failure to comply with the fourth requirement causes the dismissal of the case and expunction of the pleadings from the records. [1 Riano 262-263, 2016 Bantam Ed.]

d. Allegations in a pleading Every pleading shall contain in a methodical and logical form: 1. a plain, concise and direct statement of the ultimate facts, 2. the evidence on which the party pleading relies for his or her claim or defense, as the case may be 3. If the cause of action or defense is based on law, the pertinent provisions of the law and its applicability. [Sec. 1, Rule 8] Alternative Causes of Action A party may set forth two or more claims or defenses alternatively in one cause of action. Such happens when a party is not certain which cause of action would squarely fit the set of facts alleged in the complaint. [1 Riano 278, 2016 Bantam Ed.] Also. a pleading which alleges alternative causes of action is not made insufficient by the insufficiency of one or more of the alternative statements as long as one of them is sufficient. [Sec. 2, Rule 8] Example: A plaintiff may be unsure as to whether the liability of the carrier is based either on breach of contract or a quasi-delict. The rules allow him to state both causes of action in the alternative. [1 Riano 278, 2016 Bantam Ed.] i. Manner of making allegations How to allege the following in a pleading:

Page 49 of 525

U.P. LAW BOC

CIVIL PROCEDURE

1. Capacity to sue or be sued The following must be averred, to wit: a. Facts showing the capacity of a person to sue or be sued, b. The authority of a party, to sue and be sued in a representative capacity, or c. The legal existence of an organized association of persons that is made a party. Moreover, a party desiring to raise an issue as to the legal existence of any party to sue or be sued in a representative capacity must do so via specific denial. [Sec. 4, Rule 8] 2. Judgments In pleading a judgment or decision of either a domestic or a foreign court, judicial or quasi-judicial tribunal, or a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. However, under the Amended Rules, an authenticated copy of the judgment or decision pleaded must be attached to the pleading. [Sec. 6, Rule 8] 3. Official documents or acts In pleading official documents or acts, it is sufficient to aver that the document was issued or the act was done in compliance with law. [Sec. 9, Rule 8]

REMEDIAL LAW

Examples of conditions precedent: a. A tender of payment is required before making a consignation [Art. 1256, NCC] b. Exhaustion of administrative remedies is required in certain cases before resorting to judicial action [Lopez v. City of Manila, G.R. No. 127139 (1999); Dy v. CA, G.R. No. 121587 (1999)] c. Prior resort to barangay conciliation proceedings is necessary in certain cases [Book III, Title I, Chapter 7, LGC] d. Earnest efforts toward a compromise must be undertaken when the suit is between members of the same family and if no efforts were in fact made, the case must be dismissed, [Art. 151, FC] e. Arbitration may be a condition precedent when the contract between the parties provides for arbitration first before recourse to judicial remedies [1 Riano 333-334, 2014 Bantam Ed.] Note: The failure to comply with a condition precedent before the filing of a complaint is no longer a ground for an allowable motion to dismiss under the Amended Rules. However, it is an affirmative defense that must be set out in the answer or else, it is deemed waived. [Sec. 12, Rule 8] 2. Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts

1. Condition precedent In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. [Sec. 3, Rule 8] All valid conditions precedent to the institution of the particular action, whether prescribed by statute, fixed by agreement of the parties or implied by law must be performed or complied with before commencing the action, unless the conduct of the adverse party has been such as to prevent or waive performance or excuse non-performance of the condition. [Anchor Savings Bank v. Furigay, G.R. No. 191178 (2013)]

Fraud, mistake, malice, intent, knowledge, and other condition of the mind In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. [Sec. 5, Rule 8] Rationale: The reason for this rule is that an allegation of fraud concerns the morality of the defendant’s conduct and he is entitled to know fully the ground on which the allegations are made, so he may have every opportunity to prepare his case to clear himself at the trial [Guy v. Guy, G.R. No. 189486 (2012)]

Page 50 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Malice, intent, knowledge or other condition of the mind of a person may be averred generally [Sec. 5, Rule 8]

REMEDIAL LAW

Effect of failure to deny under oath The genuineness and due execution of the actionable document is deemed admitted. [Sec. 8, Rule 8]

ii. Pleading an actionable document Actionable document Whenever an action or defense is based or founded upon a written instrument or document, said instrument or document is deemed an actionable document [1 Riano 359, 2014 Bantam Ed.] Pleading the document 1. The substance of such document shall be set forth in the pleading, and 2. The original or a copy thereof shall be attached to the pleading as an exhibit. [Sec. 7, Rule 8] Note: The Amended Rules deleted the provision allowing for the copying of the instrument on the pleading. Therefore, such is no longer allowed as a means of pleading an actionable document. This means that setting forth the substance of the actionable document and the attachment of such to the pleading is the only way to plead the document under the Amended Rules. A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant dismissal of the action. [Convets Inc. v. National Dev. Co., G.R. No. L-10232 (1958)] How to contest an actionable document General rule: The adverse party, under oath, specifically denies them, and sets forth what he or she claims to be the facts Exceptions: The requirement of an oath does not apply when: 1. The adverse party does not appear to be a party to the instrument, or 2. Compliance with an order for an inspection of the original instrument is refused. [Sec. 8, Rule 8]

Meaning of due execution and genuineness That the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him [Hibberd v. Rohde and Mcmillian, G.R. No. 8418 (1915)] iii. Specific denials The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with matters which he relied upon to support the denial. [Philippine Bank of Communications v. Go, G.R. No. 175514 (2011)] A denial does not become specific merely because it is qualified by the word “specific” or “specifically”. [Republic v. Gimenez, G.R. No. 174673 (2016)] Material averments in any pleading asserting a claim, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. [Sec. 11, Rule 8] Note: Under the previous Rules, only material averments in the complaint were deemed admitted if not specifically denied. Under the Amended Rules widens the scope of such rule to include any pleading asserting a claim. It is submitted, therefore, that this rule now covers: 1. Counterclaims 2. Cross-claims (both compulsory and permissive) 3. Third (fourth, etc.) party complaints, and 4. Complaints-in-intervention.

Page 51 of 525

U.P. LAW BOC

CIVIL PROCEDURE

As to answers, any new allegations set forth therein are deemed controverted. [Sec. 10, Rule 6] 1. Effect of failure to make specific denials General rule: Material averments in a pleading asserting a claim or claims shall be deemed admitted when not specifically denied [Sec. 11, Rule 8] Exceptions: The following averments in the complaint are not deemed admitted even if not specifically denied: 1. Amount of unliquidated damages [Sec. 11, Rule 8] 2. Conclusions in a pleading, because it is for a court to make conclusions, and 3. Non-material allegations or averments, because the rules provide that only material allegations have to be denied. [1 Riano 300, 2016 Bantam Ed.] 2. When a specific denial requires an oath Specific denial under oath is required for the denial of the genuineness and due execution of an actionable document. But, as previously mentioned, an oath is not required when the adverse party does not appear to be a party to the instrument or when compliance with an order for inspection of the original instrument is refused. [Sec. 8, Rule 8] Note: The provisions on usury were deleted by the amended rules. iv. Affirmative defenses A defendant shall raise his or her affirmative defenses in the answer. [Sec. 12, Rule 8] The grounds shall be limited to those under Sec. 5(b), Rule 6 and those enumerated under Sec. 12, Rule 8.

REMEDIAL LAW

Thus, the following are the affirmative defenses that should be raised in the answer: Under Sec. 5(b), Rule 6, 1st paragraph: 1. Fraud, 2. Statute of limitations, 3. Release, 4. Payment, 5. Illegality, 6. Statute of frauds, 7. Estoppel, 8. Former recovery, 9. Discharge in bankruptcy, and 10. Any other matter by way of confession and avoidance. Note: The court is allowed to conduct a summary hearing within 15 calendar days from the allegation of these affirmative defenses in the answer. After such hearing, they must be resolved by the court within 30 calendar days from the end of the summary hearing. [Sec. 12(d), Rule 8] Under Sec. 5(b), Rule 6, 2nd paragraph 11. Lack of jurisdiction over the subject matter; 12. Litis pendentia, and 13. Res judicata. Note: Curiously, the Amended Rules do not provide a time for which the court must act on these grounds when they are alleged as affirmative defenses in the answer. Section 12, Rule 8 merely provides for a period for the affirmative defenses listed in the first paragraph of Sec. 5(b), Rule 6 and not for those listed under the second paragraph of such rule. Under Sec. 12, Rule 8: 14. Lack of jurisdiction over the person of the defendant, 15. Improper venue, 16. Lack of legal capacity to sue of the plaintiff, 17. Failure to state a cause of action, and 18. Failure to comply with a condition precedent. Note: The court must motu proprio resolve these affirmative defenses within 30 calendar days from the filing of the answer. [Sec. 12(c), Rule 8]

Page 52 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

Effect of failure to raise the affirmative defense at the earliest opportunity General rule: Failure to raise an affirmative defense in the answer or at the earliest opportunity constitutes a waiver of the defense. Exception: Non-waivable grounds 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Statute of limitations. [Sec. 1, Rule 9] Note: If the non-waivable grounds are not raised in the answer, the Amended Rules allow them to be proper grounds for a motion to dismiss. [Sec. 12, Rule 15] With the deletion of Rule 16, and consequently the time for filing of a motion to dismiss, it seems that the Amended Rules do not provide for a specific period where the filing of a motion to dismiss may be done. Remedy if the affirmative defense is denied Affirmative defenses, if denied, shall not be the subject of a motion for reconsideration, or a petition for certiorari, prohibition, or mandamus, but may be among the matters to be raised on appeal after a judgment on the merits. [Sec. 12(e), Rule 8]

3. Upon the court’s own initiative at any time. [Sec. 13, Rule 8]

e. Effect of failure to plead i. Failure to plead defenses and objections General rule: Defenses and objections not pleaded in either a motion to dismiss or in the answer are deemed waived [Sec. 1, Rule 9] Exceptions: The court shall dismiss the case when it appears from the pleadings or the evidence on record that: 1. The court has no jurisdiction over the subject matter, 2. There is another action pending between the same parties for the same cause (litis pendentia), 3. The action is barred by a prior judgment (res judicata), or 4. The action is barred by statute of limitations (prescription). [Sec. 1, Rule 9] Note: The Amended Rules provide that the aforementioned grounds are the only grounds allowed in a motion to dismiss. [Sec. 12 (a), Rule 15]

Note: If denied, the case will proceed to trial. The defendant may raise the matter on appeal after judgment on the merits. v. Striking out of a pleading The court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. [Sec. 13, Rule 8] How done 1. Upon motion by a party before responding to a pleading; 2. Upon motion by a party within 20 calendar days after service of the pleading upon him or her, if no responsive pleading is allowed by the rules; or

ii. Failure to plead compulsory counterclaim and cross-claim General rule: A compulsory counterclaim, or a cross-claim, not set up shall be barred. [Sec. 2, Rule 9] Exceptions: 1. Omitted Counterclaim or Cross-claim When a pleader fails to set up a counterclaim or cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. [Sec. 10, Rule 11] 2. Counterclaim Answer

Page 53 of 525

or

Cross-claim

after

U.P. LAW BOC

CIVIL PROCEDURE

A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. [Sec. 9, Rule 11]

f. Default Failure of the defending party to answer within the time allowed therefor. [Sec. 3, Rule 9] Dual stages of default Order of default

Judgment by default

Issued by the court on plaintiff’s motion Rendered by the and at the start of the court following an proceedings, for order of default, failure of the when the court has defendant to received ex parte the seasonably file his plaintiff’s evidence responsive pleading. [1 Regalado 191, 2010 Ed.] i. When declaration of default is proper

REMEDIAL LAW

2. The defending party must have failed to file his answer within the time allowed therefor; 3. The claiming party must file a motion to declare the defending party in default; 4. The claiming party must prove that the defending party has failed to answer within the period provided by the ROC; [Sablas v. Sablas, G.R. No. 144568 (2007)] 5. The defending party must be notified of the motion to declare him in default; and [Sec. 3, Rule 9] 6. There must be a hearing set on the motion to declare the defending party in default [Spouses de los Santos v. Carpio, G.R. No. 153696 (2006)] [1 Riano 364, 2014 Bantam Ed.] ii. Effect of an order of default A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial. [Sec. 3, Rule 9] The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial. He forfeits his rights as a party litigant, has no right to present evidence supporting his allegations, to control the proceedings, or cross-examine witnesses. [1 Riano 305, 2016 Bantam Ed.]

The rule on default clearly establishes the “failure to answer within the time allowed therefor” as the ground for a declaration of default [Sec. 3, Rule 9].

A party in default may still participate as a witness. [Cavili v. Florendo, G.R. No. 73039 (1987)]

Failure to attend the pre-trial does not result in the "default" of the defendant. Instead, the failure of the defendant to attend shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof [Aguilar v. Lightbringers Credit Cooperative, G.R. No. 209605 (2015)]

The court may either: a. Proceed to render judgment granting the claimant such relief as his or her pleading may warrant, or b. Require the claimant to submit evidence; such reception of evidence may be delegated to the clerk of court. [Sec. 3, Rule 9]

Requisites before a declaration of default 1. The court must have validly acquired jurisdiction over the person of the defending party, either by service of summons or voluntary appearance;

A declaration of default is not tantamount to an admission of the truth or validity of the plaintiff’s claims. [Monarch Insurance v. CA, G.R. No. 92735 (2000)] A defending party declared in default retains the right to appeal from the judgment by

Page 54 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

default. However, the grounds that may be raised in such an appeal are restricted to any of the following: a. The failure of the plaintiff to prove the material allegations of the complaint; b. The decision is contrary to law; and c. The amount of judgment is excessive or different in kind from that prayed for. In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence. [Otero v. Tan, G.R. No. 200134 (2012)] iii. Relief from an order of default Relief before judgment File a motion under oath to set aside the order of default upon proper showing that: a. His or her failure to answer was due to fraud, accident, mistake or excusable negligence, and b. He has a meritorious defense - such that the motion must be accompanied by a statement of the evidence which he intends to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise if a new trial is granted [Kilosbayan v. Janolo, G.R. No. 180543 (2010)] [Sec. 3(b), Rule 9] In such a case, the order of default may be set aside in such terms and conditions as the judge may impose in the interest of justice. [Sec. 3(b), Rule 9] Relief after judgment but before it has become final and executory The party declared in default may file: a. a motion for new trial under Sec. 1(a), Rule 37 [Lina v. CA, G.R. No. L-63397 (1985)], or b. an appeal from the judgment as being contrary to the evidence or the law [Republic v. Sandiganbayan, G.R. No. 148154 (2007), cited in 1 Riano 373, 2014 Bantam Ed.]

Relief after judgement has become final and executory He may file a petition for relief under Rule 38 [Lina v. CA, G.R. No. L-63397 (1985)] These remedies presuppose that the defending party was properly declared in default, but it is submitted, however, that certiorari will lie when said party was improperly declared in default. [1 Riano 374, 2014 Bantam Ed.] iv. Effect of a partial default Partial default takes place when the complaint states a common cause of action against several defendants, and only some of whom answer. [Sec. 3, Rule 9] Effects 1. The court should declare defaulting defendants in default, and proceed to trial on answers of others 2. If the defense is personal to the one who answered, it will not benefit those who did not answer. v. Extent of relief A judgment rendered against a party in default shall neither: 1. Exceed the amount, 2. Be different in kind from that prayed for, nor 3. Award unliquidated damages. [Sec. 3(d), Rule 9] The fact that the defendant was declared in default is of no moment when the plaintiff would not have been entitled to relief since his complaint did not state a cause of action, hence the same should be dismissed. [1 Regalado 193, 2010 Ed., citing Reyes v. Tolentino, G.R. No. L-29142 (1971)]. vi. Actions where default are not allowed In case of failure to file an answer in an action for: 1. Annulment or declaration of nullity of marriage, or

Page 55 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Legal separation The court shall order the Solicitor General, or his or her deputized public prosecutor: 1. To investigate whether or not a collusion between the parties exists, or 2. To intervene for the State in order to see to it that the evidence submitted is not fabricated, if there is no collusion. [Sec. 3(e), Rule 9] Other instances where default is not allowed: 1. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed. [Sec. 6, Rule 65] 2. Cases covered by the Rule on Summary Procedure [See Sec. 6, Rule on Summary Procedure, which requires the court to render. judgment if the defendant fails to answer] 3. In expropriation proceedings, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of compensation to be paid for his property in the trial of the issue of just compensation. [Sec. 3(2), Rule 67]

g. Filing and service of pleadings Coverage The filing of all pleadings, motions, and other court submissions, as well as the service thereof, except those for which a different mode of service is prescribed. [Sec. 1, Rule 13] Note: Due to the revision, the rule now contemplates filing of submissions that are not paper-based, such as those made through electronic means. Papers required to be filed and served a. Judgment b. Resolution c. Order d. Pleading subsequent to the complaint e. Written motion f. Notice g. Appearance

REMEDIAL LAW

h. Demand i. Offer of judgment; or j. Similar papers. [Sec. 4, Rule 13] i. Payment of Docket Fees It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris, G.R. No. 151242 (2005)] Payment of docket fees is mandatory and jurisdictional [National Transmission Corporation v. Heirs of Teodulo Ebesa, G.R. No. 186102 (2016)]. EFFECT OF FAILURE TO PAY DOCKET FEES AT FILING a. The Manchester Rule ● Automatic Dismissal ● Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction [Manchester v. CA, G.R. No. 75919 (1987)] b. Relaxation of the Manchester Rule (Sun Insurance Doctrine) ● NOT automatic dismissal ● Court may allow payment of fees within a reasonable time, but in no case beyond the expiration of the applicable prescriptive period of the action filed [Sun Insurance v. Asuncion, G.R. No. 79937 (1989)] c.

Page 56 of 525

Exception to the Sun Insurance doctrine – The Sun Insurance rule allowing payment of deficiency does not apply where plaintiff never demonstrated any willingness to abide by the Rules to pay the docket fee but stubbornly insisted that the case filed was one for specific performance and

U.P. LAW BOC

CIVIL PROCEDURE

damages [Gochan v. Gochan, G.R. No. 146089 (2001)] d. Further modification ● Docket fees as lien ● Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee, but subsequently, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment [Heirs of Hinog v. Melicor, G.R. No. 140954 (2005)] e. Limitation on the claims covered by fees as lien Claims not specified or claims although specified are left for determination of the court are limited only to any damages that may arise after the filing of the complaint or similar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof [Metrobank v. Perez, G.R. No. 181842 (2010)]

ii. Distinguish: Filing and Service of Pleadings Filing is the act of submitting the pleading or other paper to the court. [Sec. 2, Rule 13] Service is the act of providing a party with a copy of the pleading or any other court submission. [Sec. 2, Rule 13] iii. Periods of Filing of Pleadings Responsive Pleadings [Rule 11]

Period

Within 30 Answer to the calendar complaint [Sec. 1] days (unless a different

Reckoning Point

Service of summons

REMEDIAL LAW

period is fixed by the court) Answer of a defendant foreign private juridical entity whose summons was served on the government official designated by law [Sec. 2] Answer to amended complaint as a matter of right [Sec. 3]

Within 60 calendar days

Within 30 calendar days

Answer to amended Within 15 complaint NOT as calendar a matter of right days [Sec. 3] Answer to an amended counterclaim amended crossclaim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention [Sec. 3] Answer to counterclaim or cross-claim [Sec. 4] Answer to third (fourth, etc.) party complaint [Sec. 5]

Page 57 of 525

Receipt of summons by such entity

Service of a copy of the amended complaint Notice of the order admitting the amended complaint

Same as answer to amended complaint

Same as answer to amended complaint

Within 20 calendar days

Service

Same as answer to the complaint

Same as answer to the complaint

U.P. LAW BOC

CIVIL PROCEDURE

Within 15 calendar days

Service of the pleading responded to

Within 20 calendar days Answer to (unless a supplemental different complaint [Sec. 7] period is fixed by the court)

Notice of the order admitting the same

Reply [Sec. 6]

Note: The Rules allow for a motion to extend time to file an answer, as long as it is for meritorious reasons. Such may only be availed of by the defendant once and may not exceed 30 calendar days. [Sec. 1, Rule 11] iv. Manner of filing How filed The filing of pleadings and other court submissions shall be made by: a. Submitting personally the original to the court; b. Sending them by registered mail; c. Sending them by accredited courier; or d. Transmitting them by electronic mail or other electronic means as may be authorized by the Court, in places where the court is electronically equipped. [Sec. 3, Rule 13] Mode of Filing Personal Filing Filing by Registered Mail Filing by Accredited Courier

Date of Filing The clerk of court shall endorse on the pleading the date and hour of filing The date of the mailing of motions, pleadings, and other court submissions, and payments or deposits, as shown by the post office stamp on the envelope or the registry receipt shall be

REMEDIAL LAW

considered as the date of their filing. Transmittal by electronic mail The date of or other transmission electronic means [Sec. 3, Rule 13]

electronic

v. Modes of service To whom service made General Rule: Serve the copy of the pleading or the court submission to the party himself. Exception: If a party has appeared by counsel, service upon such party shall be made upon his or her counsel or one of the counsels. Exception to Exception: The court orders service upon both the party and counsel. [Sec. 2, Rule 13] When several parties/several counsel Where one counsel appears for several parties, such counsel shall only be entitled to one copy of any paper served upon him by the opposite side. Where several counsels appear for one party, such party shall be entitled to only one copy of any pleading or paper to be served upon the lead counsel if one is designated or upon any one of them is there no designation of a lead counsel. [Sec. 2, Rule 13] Modes of Service Pleadings, motions, orders, judgments, and other court submissions shall be served: 1. Personally, 2. By registered mail, 3. By accredited courier, 4. By electronic mail, facsimile transmission, or other electronic means as may be authorized by the Court,

Page 58 of 525

U.P. LAW BOC

CIVIL PROCEDURE



5. By service as provided for in international conventions to which the Philippines is a party, and 6. Substituted service. [Sec. 5, Rule 13]

REMEDIAL LAW

Such must be served at the residence at a time between 8 am to 6 pm. [Sec. 6, Rule 13] 2. Service by registered mail

Note: As to which modes of service are preferred, refer below to the discussion on conventional service of orders, pleadings, and other documents. Presumptive Service There shall be presumptive service of a notice to a party of a court setting: 1. Addressee is in the same judicial region of the court where the case is pending • if such notice appears on the records to have been mailed at least 20 calendar days prior to the scheduled date of hearing 2. Addressee is from outside the judicial region of the court where the case is pending • if such notice appears on the records to have been mailed at least 30 calendar days prior to the scheduled date of hearing. [Sec. 10, Rule 13] Note: Since it is provided as a mere presumption, it may be subject to proof to the contrary, such as when counsel adduces evidence that notice of the court setting was indeed not served. 1. Personal service How personal service is made Service by personal service shall be made by: 1. By personal delivery of a copy to the party, counsel, or to their authorized representative named in the appropriate pleading or motion, or 2. By leaving it in his or her office with his or her clerk, or with a person having charge thereof • If (a) no person is found in his or her office, or (b) his or her office is not known, or (c) he or she has no office, then by leaving the copy at the party or counsel's residence, if known, with a person of sufficient age and discretion residing therein.

How service by registered mail is made 1. Depositing the copy in the post office in a sealed envelope, 2. The copy must be plainly addressed to the party or counsel at his office, if known. Otherwise, address to his residence, if known, 3. Postage must be fully prepaid, and 4. Copy must come with instructions to the postmaster to return the mail to the sender after 10 calendar days if the copy remains undelivered. Ordinary mail – If no registry service is available in the locality of either the sender or addressee, service can be made through ordinary mail. [Sec. 7, Rule 13] 3. Service by accredited courier How service by accredited courier is done Note: Unlike the other means of service, it seems that there is no provision under the Amended Rules which outlines how service via accredited courier is done. At most, the Amended Rules only provide that in the case of judgements, finals orders, and resolutions, such service must be preceded by an ex parte motion requested by any party to the proceedings. [Sec. 13, Rule 13] 4. Service by electronic mail, facsimile transmission, or other electronic means When service by electronic means or facsimile is allowed Service by electronic means and facsimile shall be made if the party concerned consents to such modes of service. [Sec. 9, Rule 13]

Page 59 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

How service by electronic means or facsimile is made

party notifies the court of any change as aforementioned. [Sec. 11, Rule 13]

Service by electronic means 1. By sending an e-mail to the party’s or counsel’s e-mail address, or 2. Through other electronic means of transmission.

Note: Due to the rule providing for such presumption, any actual change in the e-mail addresses or facsimile numbers of the parties will not bind the court unless the party gives notice of the change.

Before service by electronic means can be availed of, either the agreement of the parties or the direction of the court is required. [Sec. 9, Rule 13] Service by facsimile By sending a facsimile copy to the party or counsel’s given facsimile number. [Sec. 9, Rule 13] Subject format of electronically served documents and facsimiles The subject of the e-mail and facsimile must follow the prescribed format: 1. Case number, followed by 2. Case title, followed by 3. The pleading, order or document title. • The title of each electronically-filed or served pleading or document, and each submission served by facsimile, shall contain sufficient information to enable the court to ascertain from the title: a. The parties filing or serving the paper, b. The nature of the paper, c. The party or parties against whom relief, if any, is sought, and d. The nature of the relief sought. [Sec. 12, Rule 13] Change of electronic mail or facsimile number A party who changes his e-mail address or facsimile number while the action is pending must file, within 5 calendar days, a notice of change of e-mail address or facsimile number with the court, and serve notice on all other parties. [Sec. 11, Rule 13]

5. Service as provided for international conventions

in

An example of an international convention which the Philippines is a party to which likewise relates to service of court documents would be the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. 6. Substituted service When substituted service is allowed When service cannot be made personally or by mail because the office and place of residence of the party or his counsel being unknown. [Sec. 8, Rule 13] How substituted service is made 1. Delivering the copy to the clerk of court 2. With proof of failure of both personal service and service by mail. [Sec. 8, Rule 13] Papers that may be served substituted service 1. Pleadings 2. Motions 3. Notices 4. Resolutions, and 5. Other papers. [Sec. 8, Rule 13]

through

Judgments, final orders, or resolutions cannot be served by substituted service. [1 Regalado 233, 2010 Ed.]

Service through the registered e-mail of the party shall be presumed valid unless such Page 60 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

vi. Service of judgments, final orders, or resolutions; service of courtissued orders and other documents Service of judgments, final orders, or resolutions Judgments, final orders, or resolutions shall be served either: 1. Personally, 2. By registered mail, 3. By accredited courier, upon ex parte motion of any party 4. By publication, when a party summoned by publication has failed to appear in the action. Expenses of publication must be borne by the prevailing party. [Sec. 13, Rule 13] Note: Curiously, both Sec. 5, Rule 13 and Sec. 13, Rule 13 mandate different methods of service when it comes specifically to “judgements” and “final orders”. It is submitted that the enumeration in Sec. 13, Rule 13 should govern when it comes to these two court documents, as such rule specifically provides for the method of service of “judgements” and “final orders”. Sec. 5, Rule 13 on the other hand, covers the method of service for a more general list of court documents. Lex specialis derogat legi generali. Specific provisions of law govern over general provisions. Service of court-issued orders and other documents The court may electronically serve orders and other documents to all the parties in the case which shall have the same effect and validity as provided herein. A paper copy of the order or other document electronically served shall be retained and attached to the record of the case. [Sec. 18, Rule 13] Note: It is submitted that despite Sec. 18, Rule 13 allowing for service of orders and other documents electronically, such mode of service may be done only in addition to the four modes of service in the case of

judgements, final orders, and resolutions as dictated by Sec. 13, Rule 13. This is so because Sec. 13, Rule 13 uses the word “shall” in enumerating the modes of service applicable to such documents. Electronic service cannot replace these modes of service, and may only supplement the same. It appears, therefore, that the rationale for allowing electronic service in these cases is to ensure receipt by the parties to the case. vii. Conventional service or filing of orders, pleadings, and other documents General Rule: The following should not be served or filed electronically, and shall be filed or served personally or by registered mail: 1. Initiatory pleadings and initial responsive pleadings (answer); 2. Subpoena, protection orders, and writs; 3. Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning; and 4. Sealed and confidential documents or records. Exception: When the court gives express permission for them to be filed electronically. [Sec. 14, Rule 13] 7. When service complete Mode of Service Personal Service Service by ordinary mail

Service by registered mail

Page 61 of 525

is

deemed

Completeness of Service Upon actual delivery. Upon the expiration of the 10 calendar days after mailing, unless the court otherwise provides. Upon the actual receipt by the addressee, or after 5 calendar days from the date he or she received the first notice of the

U.P. LAW BOC

Service by accredited courier

Electronic Service

Service by facsimile transmission Substituted service

REMEDIAL LAW

CIVIL PROCEDURE

postmaster, whichever is earlier. Upon actual receipt by the addressee or after at least 2 attempts to deliver or upon the expiration of 5 calendar days after the first attempt to deliver, whichever is earlier. At the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. Note: It is not effective or complete if the party serving learns that it did not reach the person to be served. Upon receipt by the other party as indicated in the facsimile printout. At the time of delivery of the copy to the clerk of court. [Sec. 8, Rule 13]

Mode Personal Filing

Filing by registered mail

Filing by accredited courier

[Sec. 15, Rule 13] Electronic Filing

8. Proof of filing and service Proof of Filing General rule: The filing of a pleading or any other court submission shall be proved by its existence in the record of the case. Exception: If the pleading or any other court document is not in the record, but is claimed to have been filed by the following modes, proof shall be:

Filing by other authorized electronic means [Sec. 16, Rule 13]

Page 62 of 525

Proof of Filing By the written or stamped acknowledgment of its filing by the clerk of court on a copy of the pleading or court submission. By the registry receipt and the affidavit of the person who mailed it containing a full statement of the date and place of deposit of the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with the instructions to the postmaster to return the mail to the sender after 10 calendar days if not delivered. By an affidavit of service of the person who brought the pleading or other document to the service provider, and the courier’s official receipt and document tracking number. By an affidavit of electronic filing of the filing party, and a paper copy of the pleading or other document transmitted, or A written or stamped acknowledgment of its filing by the clerk of court. By an affidavit of electronic filing of the filing party, and a copy of the electronic acknowledgment of its filing by the court.

U.P. LAW BOC

Proof of Service Mode

CIVIL PROCEDURE

Proof of Service A written admission of the party served, or The official return of the server, or

Personal Service

The affidavit of the party serving, containing a statement of the date, place, and manner of service

Service by ordinary mail Note: This mode of service may only be availed of if no registry service is available in the locality as per Sec. 7, Rule 13.

Service by registered mail

Service by accredited courier

Service electronic mail,

by

An affidavit of the person mailing stating the facts showing compliance with Sec. 7, Rule 13.

An affidavit of the person mailing stating the facts showing compliance with Sec. 7, Rule 13 and the registry receipt issued by the mailing office. An affidavit of service executed by the person who brought the pleading or paper to the service provider, and the courier’s official receipt or document tracking number. An affidavit of service executed by the person who sent the e-mail,

REMEDIAL LAW

facsimile, or facsimile, or other other electronic transmission, authorized and printed proof of electronic transmittal. means of transmission [Sec. 17, Rule 13]

h. Amendment How to amend pleadings 1. Adding an allegation, 2. Adding the name of any party, 3. Striking out an allegation, 4. Striking out the name of any party, 5. Correcting a mistake in the name of a party, or 6. Correcting a mistaken or inadequate allegation or description in any other respect. [Sec. 1, Rule 10] Purpose of Amendments to a Pleading The courts should be liberal in allowing amendments to pleadings to avoid a multiplicity of suits and in order that the real controversies between the parties are presented, their rights determined, and the case decided on the merits without unnecessary delay. [Tiu v. Phil. Bank of Communication, G.R. No. 151932 (2009)] How to file amended pleadings When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. [Sec. 7, Rule 10] No amendment necessary to conform to or authorize presentation of evidence When issues are not raised in the pleadings but are tried with the consent of the parties, they shall be treated as if they had been raised in the pleading. No amendment of such pleadings deemed amended is necessary to cause them to conform to the evidence. [Sec. 5, Rule 10]

Page 63 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: This is a new rule introduced by the Amended Rules. The old rule provided that in a situation where issues not raised in the pleadings were tried with the consent of the parties, the pleadings should be subsequently amended on motion of a party to conform to evidence. i. Amendment as a matter of right A party may amend his pleading once as a matter of right a. At any time before a responsive pleading is served, or b. In the case of a reply, at any time within 10 calendar days after it is served [Sec. 2, Rule 10] A motion to dismiss is not a responsive pleading and does not preclude the exercise of the plaintiff’s right to amend his complaint. [Remington Industrial Sales v. CA, G.R. No. 133657 (2002)] ii. Amendments by leave of court Substantial amendments may be made only upon leave of court [Sec. 3, Rule 10]

complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. [Swagman v. CA, G.R. No. 161135 (2005)] iii. Formal amendment When proper a. Defect in the designation of the parties, or b. Other clearly clerical or typographical errors [Sec. 4, Rule 10] How made Such defects or errors are summarily corrected by the court, at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. [Sec. 4, Rule 10] iv. Effect of amended pleading 1. Supersedes the pleading that it amends, 2. Admissions in the superseded pleadings may be offered in evidence against the pleader

Requisites a. Motion for leave of court, accompanied by the amended pleading sought to be admitted; [Sec. 10, Rule 15] b. Notice is given to the adverse party; and c. Parties are given the opportunity to be heard. [Sec. 3, Rule 10] When leave of court to substantially amend a pleading shall be refused If it appears to the court that the motion was made: 1. With intent to delay; 2. With intent to confer jurisdiction on the court; or 3. The pleading stated no cause of action from the beginning. [Sec. 3, Rule 10] Note: This rule merely integrates into the Rules of Court the landmark case of Swagman Hotels v. Court of Appeals which provided that a

REMEDIAL LAW

Note: The amended rules changed the word “received” into “offered”, meaning that the admissions in the superseded pleadings may not necessarily be received in evidence. They are considered extrajudicial admissions. 3. Claims or defenses alleged in the superseded pleading but not incorporated or reiterated in the amended pleading are deemed waived. [Sec. 8, Rule 10] v. Supplemental pleadings When proper A supplemental pleading is filed to set forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Sec. 6, Rule 10]

Page 64 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

How made Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him or her to serve a supplemental pleading Note: The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court. Note the language of Sec. 6, Rule 10: “may”. The adverse party may plead thereto within ten (10) calendar days from notice of the order admitting the supplemental pleading. [Sec. 6, Rule 10] Purpose To bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled. [Ada v. Baylon, G.R. No. 182435 (2012)] Amended v. Supplemental Pleadings Supplemental Amended Pleadings Pleadings Refer to transactions, occurrences or Refer to facts existing events which have at the time of the happened since the commencement of date of the pleading the action sought to be supplemented Either as a matter of right or by leave of court

Always by leave of court

Supersedes the pleading that it amends

Merely supplements, and exists side-byside with the original [1 Riano 366, 2011 Ed.]

A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed

No such requirement exists

7. Summons Definition The writ by which the defendant is notified of the action brought against him [Licaros v. Licaros, G.R. No. 150656 (2003)] By whom issued Clerk of court upon directive of the court. [Sec. 1, Rule 14] Leave of court in case service requires prior leave Any application under this rule for leave to effect service in any manner for which leave of court is necessary shall be made by: a. A motion in writing, b. Supported by affidavit of the plaintiff or some person on his behalf setting forth the grounds for the application. [Sec. 19, Rule 14]

a. Nature and summons

purpose

of

i. In relation to actions in personam, in rem, and quasi in rem 1. Action in personam Purpose of summons a. To acquire jurisdiction over the person of the defendant in a civil case b. To give notice to the defendant that an action has been commenced against him. [1 Riano 376, 2011 Ed.] Where the action is in personam, that is, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. [Velayo-Fong v. Velayo, G.R. No. 155488 (2006)]

Page 65 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Action in rem and quasi in rem Purpose of summons in actions in rem and quasi in rem a. Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process b. Jurisdiction over the defendant is not required c. The court acquires jurisdiction over an action as long as it acquires jurisdiction over the res that is the subject matter of the action. [Macasaet v. Co, Jr., G.R. No. 156759 (2013)]

iii. Contents of summons Contents 1. Summons shall be a. Directed to the defendant, and b. Signed by the clerk of court under seal 2. Summons shall contain a. The name of the court, and the names of the parties to the action; b. When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant; Note: The plaintiff may serve summons together with the sheriff, only when the sheriff, his deputy or proper court officer fails to serve summons, or if the summons is to be served outside the judicial region of the court. In the latter case, there would be no need for the sheriff, his deputy, or the proper court officer to have first failed to serve the summons before the plaintiff may be authorized by court to serve summons. [Sec. 3, Rule 14]

ii. When summons are issued Summons shall be issued: 1. Within 5 calendar days from receipt of the initiatory pleading, and 2. Upon proof of payment of the requisite legal fees • Note: The old rules merely required payment of the requisite legal fees. The new rules now require proof of such payment to be submitted with the initiatory pleading. Summons shall not be issued, and the case shall be dismissed if the complaint on its face is dismissible under Sec. 1, Rule 9. Such provides for the non-waivable grounds for dismissal of a complaint, to wit: 1. The court has no jurisdiction over the subject matter 2. Litis pendentia 3. Res judicata 4. The action is barred by the statute of limitations. [Sec. 1, Rule 14]

REMEDIAL LAW

c. A direction that the defendant answer within the time fixed by the ROC; and d. A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for 3. The following shall be attached to the original and each copy of the summons a. A copy of the complaint, and b. An order for appointment of guardian ad litem, if any. [Sec. 2, Rule 14] iv. Duty of counsel

Note: The rule directing the court not to issue summons in case any of the grounds are present is similar to the Rules on Small Claims and Summary Procedure. However, the grounds under the amended provision are limited to the non-waivable grounds in Sec. 1, Rule 9.

When counsel may be deputized by the court to serve summons on his client 1. Where summons is improperly served, and 2. A lawyer makes a special appearance on behalf of the defendant to question the validity of service of summons. [Sec. 13, Rule 14] Note: Due to this new provision in the rules, when the defendant claims lack of jurisdiction

Page 66 of 525

U.P. LAW BOC

CIVIL PROCEDURE

over his person by special appearance, the court will no longer dismiss the case but instead will deputize the counsel to serve summons on his client. This is also in line with the amendment removing lack of jurisdiction over the person of the defendant as a ground for an allowable motion to dismiss. It remains, however, as an affirmative defense that may be raised in the answer. v. Return When summons shall be served The server shall complete its service within 30 calendar days from issuance of summons by the clerk of court and receipt of such. [Sec. 20, Rule 14] Return of summons Within 5 calendar days from service of summons, the server shall: 1. File with the court a copy of the return, and 2. Serve a copy of the return to the plaintiff’s counsel personally, by registered mail, or by electronic means authorized by the rules. [Sec. 20, Rule 14] Contents of the return when substituted service was availed of 1. The impossibility of prompt personal service within 30 calendar days from issue and receipt of summons; 2. The date and time of the 3 attempts on at least 2 different dates to cause personal service and the details of the inquiries made to locate the defendant; and 3. Information on the person to whom the summons was served: a. The name of the person at least 18 years of age and of sufficient discretion residing thereat, b. The name of the competent person in charge of the defendant’s office or regular place of business, or c. The name of the officer of the homeowners’ association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found. [Sec. 20, Rule 14]

REMEDIAL LAW

Note: The enumeration of persons to whom summons was made is the enumeration of persons upon whom substituted service may be made under Sec. 6, Rule 14.

b. Voluntary appearance The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from the lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance. [Sec. 23, Rule 14] Note: It is submitted that despite Sec. 23, Rule 14 mentioning lack of jurisdiction over the person as a ground to be included in a motion to dismiss, such still remains to be a prohibited motion under Sec. 12, Rule 15, as the only allowable grounds for a motion to dismiss are lack of jurisdiction over the subject matter, litis pendencia, res judicata, and prescription. A motion to dismiss on the basis of lack of jurisdiction over the defendant should be dismissed outright. [Sec. 12, Rule 15] It is also submitted that the allegation of any of the old grounds for a motion to dismiss under Rule 16 of the old rules of Civil Procedure would be tantamount to a voluntary appearance by the defendant.

c. Who may serve summons Who may serve summons 1. The sheriff, 2. His or her deputy, 3. Other proper court officer, or 4. The plaintiff together with the sheriff. [Sec. 3, Rule 14] The enumeration of persons who may validly serve summons is exclusive. [1 Regalado 245, 2010 Ed.]

Page 67 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Rules for service of summons by plaintiff The court shall authorize the plaintiff to serve summons together with the sheriff upon ex parte motion in 2 instances: 1. In case of failure of service of summons by the aforementioned persons, or 2. In cases where summons is to be served outside the judicial region of the court where the case is pending. - Note: There is no need for prior failure to serve in this case before the plaintiff may be authorized by the court to serve. If the plaintiff is a juridical entity 1. It shall notify the court, in writing, name its authorized representative, and 2. A board resolution or secretary’s certificate must be attached stating that such representative is duly authorized to serve the summons on behalf of the plaintiff. If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served: a. The case shall be dismissed with prejudice, b. The proceedings shall be nullified, and c. The plaintiff shall be meted appropriate sanctions. If summons is returned without being served on any or all the defendants, The court shall order the plaintiff to cause the service of summons by other means available under the Rules. • Failure to comply with the order shall lead to dismissal without prejudice. [Sec. 3, Rule 14]

d. Personal service How done 1. By handing a copy to the defendant in person and informing the defendant that he or she is being served, or 2. If he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. [Sec. 5, Rule 14]

REMEDIAL LAW

Note: The old provision provides for “tendering” as a means of service whenever handing a copy to the defendant in person is not possible. The amendment merely explains what tendering means and how it is done.

e. Substituted service When availed of Substituted service may be availed of when for justifiable reasons, the defendant cannot be served personally after at least 3 attempts on 2 different dates. [This reflects the ruling in the case of Manotoc v. CA, 499 SCRA 21 (2006)] Note: As per Sec. 20, Rule 14, the attempts must be done within the 30 calendar day period provided for the completion of service of summons. How done [Sec. 6, Rule 14] 1. By leaving copies of the summons at the defendant's residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein; • To be of sufficient discretion, a person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)] 2. By leaving copies of the summons at the defendant's office or regular place of business with some competent person in charge thereof. • A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant; • Must be the one managing the office or business of the defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons.

Page 68 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

[Prudential Bank v. Magdamit, G.R. No. 183795 (2014)] 3. By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners' association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant may be found [This reflects the ruling in the case of Robinson v. Miralles, G.R. No. 163584 (2006)]; and 4. By sending an electronic mail to the defendant's electronic mail address, if allowed by the court. [Sec. 6, Rule 14] Residence, defined The place where the person named in the summons is living at the time of when the service is made, even though he may be temporarily out of the country at that time [Venturanza v. CA, G.R. No. 77760 (1987)] The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency [Boleyley v. Villanueva, G.R. No. 128734 (1999)]

ii. Service temporarily Philippines

upon residents outside the

Service may, by leave of court, be also effected out of the Philippines as by the means provided under extraterritorial service. [Sec. 18, Rule 14 in re Sec. 17] Note: The section referred to is that on extraterritorial service of summons.

g. Extraterritorial service When allowed 1. When the defendant does not reside and is not found in the Philippines, and 2. The action a. Affects the personal status of the plaintiff or b. Relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or c. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or d. The property of the defendant has been attached within the Philippines. [Sec. 17, Rule 14]

f. Constructive service i. Service upon a defendant where his identity is unknown or where his whereabouts are unknown Service is made by publication a. With leave of court, • The order shall specify a reasonable time not less than 60 calendar days within which the defendant must answer. b. Effected within 90 calendar days from commencement of the action, c. In a newspaper of general circulation and in such places and for such time as the court may order. Note: The defendant’s whereabouts must be ascertained with diligent inquiry. [Sec. 16, Rule 14]

How summons served By leave of court, be effected outside the Philippines a. By personal service; b. By means provided for in international conventions to which the Philippines is a party; c. By publication in a newspaper of general circulation in such places and for such time as court may order; or • a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant d. In any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time within which the defendant

Page 69 of 525

U.P. LAW BOC

CIVIL PROCEDURE

must answer, which shall not be less than 60 calendar days after notice. [Sec. 17, Rule 14]

h. Service upon prisoners and minors; upon spouses Upon prisoners Where the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution. • Such officer is deemed a special sheriff • He or she shall file a return within 5 calendar days from service of summons. [Sec. 8, Rule 14] Upon minors or incompetent persons Where the defendant is a minor, insane, or incompetent person, service of summons shall be made: a. Upon him or her personally, and b. On his or her legal guardian i. If none, on his or her guardian ad litem whose appointment shall be applied for by the plaintiff ii. In the case of a minor, on his or her parent or guardian. [Sec. 10, Rule 14] Upon spouses When spouses are sued jointly, service of summons should be made to each spouse individually. [Sec. 11, Rule 14]

i. Service upon domestic or foreign private juridical entities Upon an entity without juridical personality a. When applicable 1. Persons are associated in an entity without juridical personality, and 2. They are sued under the name by which they are generally or commonly known b. Service may be effected upon all the defendants by serving upon 1. Any one of them, or 2. The person in charge of the office or place of business maintained in such name.

REMEDIAL LAW

Note: Such service shall not bind any person whose connection with the entity has, upon due notice, been severed before the action was filed. [Sec. 7, Rule 14] Upon domestic private juridical entity Service is effected upon: a. The president, b. Managing partner, c. General manager, d. Corporate secretary, e. Treasurer, or f. In- house counsel. Service may be effected wherever they may be found, or in their absence or unavailability, on their secretaries. [Sec. 12, Rule 14] Note: This is a new provision that seeks to address the issue of plaintiffs under the old rules frequently having to ask for alias summons that would include new addresses of the officers. This is in line with the amended rule that alias summons will only be issued for lost summons. If service cannot be made on the enumerated officers or their secretaries, it shall be made upon the person who customarily received the correspondence for the defendant at its principal office. [Sec. 12, Rule 14] Note: A person who customarily receives correspondence is also a person to whom substituted service of summons may be made after at least 3 attempts on 2 different dates. [Sec. 6, Rule 14] However, with such provision under this section, it appears that the requirement of 3 attempts on 2 different dates does not apply in this instance. As soon as service cannot be made on the officers or their secretaries, service can already be made on the person customarily receiving correspondence. Domestic juridical entity under receivership or liquidation Service of summons shall be made on the receiver or liquidator. [Sec. 12, Rule 14]

Page 70 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: In case of refusal by any of the persons mentioned to receive summons for domestic juridical entities despite at least 3 attempts on 2 different dates, service may be made electronically, if allowed by the court. [Sec. 12, Rule 14]

Executive head or Province, City, such other officer/s Municipality, or like as the law or the public corporations court may direct. [Sec. 15, Rule 14]

j. Proof of service

Upon foreign private juridical entities Juridical entity registered/ has a resident agent and is doing business in the Philippines Service may be made on: 1. Its resident agent designated in accordance with law, 2. If there is no such agent, on the government official designate by law to that effect, or 3. On any of its officers, agents, directors, or trustees within the Philippines. [Sec. 14, Rule 14] Juridical entity not registered/ has no resident agent but has transacted or is doing business in the Philippines Service may, with leave of court, be effected outside the Philippines through: 1. Personal service coursed through the appropriate court in the foreign country with the assistance of the DFA; 2. Publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; 3. Facsimile; 4. Electronic means with the prescribed proof of service; or 5. Other means as the court, in its discretion, may direct. [Sec. 14, Rule 14] Service upon public corporations To Whom Defendant Summons Served The Republic of the Solicitor General Philippines

REMEDIAL LAW

Proof of service shall a. Be made in writing by the server and b. Set forth the manner, place, and date of service; any papers which have been served with the process, and the name of the person who received the papers served c. Be sworn to when made by a person, other than the sheriff or his or her deputy. [Sec. 21, Rule 14] Summons made by electronic mail Proof of service shall be: a. A print out of said e-mail, b. Copy of the summons as served, and c. The affidavit of the person mailing. [Sec. 21, Rule 14] Summons made by publication Proof of service shall be: a. The affidavit of the publisher, business or advertising manager, b. Copy of the publication, and c. An affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his or her last known address [Sec. 22, Rule 14] Note: The amended rules changed printer to publisher and removed the foreman or principal clerk from those who may execute the affidavit. Effect of defect of proof of service a. Where the sheriff's return is defective, the presumption of regularity in the performance of official functions will not lie. [Sps. Venturanza v. CA, G.R. No. 77760 (1987)]. b. Defective return is insufficient and incompetent to prove that summons was indeed served. [Santiago Syjuco, Inc. v. Castro, G.R. No. 70403 (1989)].

Page 71 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. Party alleging valid summons will now prove that summons was indeed served. [Heirs of Manguiat v. CA, G.R. No. 150768 (2008)]. d. If there are no valid summons, the court did not acquire jurisdiction which renders null and void all subsequent proceedings and issuances. [Santiago Syjuco, Inc. v. Castro, G.R. No. 70403 (1989)].

8. MOTIONS a. Motions in General i. Definition of a Motion A motion is any application for relief other than by a pleading. [Sec. 1, Rule 15] ii. Motions vs. Pleadings Motion

Pleading

Contains allegations Contains allegations of facts [Sec. 3, Rule of the ultimate facts 15] [Sec. 1, Rule 8]

Prays for a relief [Sec. 1, Rule 15] Generally in writing, except when made in open court or during the course of a hearing or trial. [Sec. 2, Rule 15]

Always in writing [Sec. 1, Rule 6]

c. With supporting affidavits and other papers if i. Required by the ROC, or ii. Necessary to prove facts alleged therein. [Sec. 3, Rule 15] Form General rule: In writing The rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. [Sec. 11, Rule 15] Exceptions: Oral Motions made in: 1. Open court or 2. The course of a hearing or trial Note: Such motions should be immediately resolved in open court, after the adverse party is given the opportunity to argue his or her opposition. However, when the motion is based on facts not appearing on record, the court may conduct a hearing to: 1. Hear the matter on affidavits or depositions presented by the parties, or 2. The court may direct that the matter be heard wholly or partly on oral testimony or depositions. [Sec. 2, Rule 15] Motion for leave A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. [Sec. 10, Rule 15] iv. Litigious and Non-litigious Motions; When Notice Of Hearing Necessary

iii. Contents and Form of Motions Contents a. Relief sought to be obtained, b. Grounds upon which it is based, and

REMEDIAL LAW

What are Litigious Motions One which requires the parties to be heard before a ruling on the motion is made by the court. [1 Riano 368, 2011 Ed.]

Page 72 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Litigious motions include: a. Motion for bill of particulars; b. Motion to dismiss;

4. Electronic means. [Sec. 5(b), Rule 15]

Note: Since a motion to dismiss is now classified as a litigious motion, such motion should be resolved within 15 calendar days from the filing of the opposition to the motion to dismiss. [Sec. 5(c), Rule 15] Therefore, this clearly repeals Secs. 2 and 3, Rule 16 of the old Rules of Court on hearing and resolution of a motion to dismiss. c. d. e. f. g. h. i. j. k. l. m. n.

Motion for new trial; Motion for reconsideration; Motion for execution pending appeal; Motion to amend after a responsive pleading has been filed; Motion to cancel statutory lien; Motion for an order to break in or for a writ of demolition; Motion for intervention; Motion for judgment on the pleadings; Motion for summary judgment; Demurrer to evidence; Motion to declare defendant in default; and Other similar motions. [Sec. 5(a), Rule 15]

The period to file an opposition would be 5 calendar days from the receipt of the litigious motion. The court shall then resolve the motion within 15 calendar days from receipt of the opposition or upon expiration of the period to file such opposition. Note: No other submissions, other than the opposition, shall be considered by the court in resolving the motion. [Sec. 5(c), Rule 15] Service of Litigious Motions Litigious motions shall be served by: 1. Personal service; 2. Accredited private courier; 3. Registered mail; or

REMEDIAL LAW

Note: Remember that electronic means of service may only be availed of with consent of the other party or with authorization of the court. [Sec. 9, Rule 13] No written motion shall be acted upon by the court without proof of service thereof pursuant to Section 5(b). [Sec. 7, Rule 15] Hearing on Litigious Motions The court may call for a hearing if deemed necessary for the motion’s resolution and send notice to all parties concerned, specifying the time and date of the hearing. [Sec. 6, Rule 15] Note that the allowance for hearing only applies to litigious motions, since non-litigious motions cannot be set for hearing. [Sec. 4, Rule 15] Motion Day General Rule: Where the court decides to conduct a hearing on a litigious motion, it shall be set on a Friday. Exception: When a motion requires immediate action. [Sec. 8, Rule 15] What are Non-Litigious motions Motions which the court may act upon without prejudicing the rights of adverse parties. Such motions shall not be set for hearing and the court shall resolve the motion within 5 calendar days from receipt of the motion. Non-litigious motions include: a. Motion for issuance of an alias summons; b. Motion for extension to file an answer; c. Motion for postponement; d. Motion for the issuance of a writ of execution; e. Motion for the issuance of an alias writ of execution

Page 73 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f.

Motion for the issuance of a writ of possession; g. Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and h. Other similar motions. [Sec. 4, Rule 15] v. Omnibus Motion Rule General rule: A motion attacking a pleading, order, judgment, or proceeding shall include all objections then available. All objections not included in the motion are deemed waived [Sec. 9, Rule 15] Purpose: To require the movant to raise all available exceptions for relief during a single opportunity so that multiple and piece-meal objections may be avoided. [Manacop v. Court of Appeals, G.R. No. 104875 (1992)] Exceptions: Non-waivable grounds under Sec. 1, Rule 9, namely: a. Lack of jurisdiction over subject matter b. Litis pendentia c. Res judicata d. Prescription [Sec. 9, Rule 15]

REMEDIAL LAW

motion to dismiss. The grounds, however, are limited only to lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription. [Sec. 12, Rule 15] Notably, the Amended Rules empower the court to dismiss a case motu proprio if the aforementioned nonwaivable grounds are apparent on the face of the complaint. [Sec. 1, Rule 14] The other grounds for a motion to dismiss under Rule 16 of the old Rules (i.e. lack of jurisdiction over the person, improper venue, lack of capacity to sue, payment/release, unenforceability under the statute of frauds, failure to comply with condition precedent) can now only be raised as affirmative defenses. [Sec. 12, Rule 8, citing Sec. 5(b), Rule 6] When a Motion to Dismiss can be Filed Under the old Rules, a motion to dismiss should be filed within the time for filing an answer to the complaint. [Sec. 1, Rule 16, 1997 Rules of Civil Procedure] If a motion to dismiss was denied, the old Rules provided that the movant may be allowed to file an answer within the balance of the period to file an answer, but not less than 5 days in any event. [Sec. 4, Rule 16, 1997 Rules of Civil Procedure]

vi. Prohibited Motions The following motions shall not be allowed: 1. Motion to dismiss except on the following grounds: • Lack of jurisdiction over the subject matter, • Litis pendentia, or • That the action is barred by res judicata or the statute of limitations. [Sec. 12, Rule 15]

However, with the repeal of Rule 16 under the Amended Rules, it seems that the Rules do not provide specifically when a motion to dismiss can be filed. It is therefore submitted that it is unnecessary for the rules to provide a period for filing a motion to dismiss, since the grounds under Sec. 1, Rule 9 are non-waivable. Thus, a motion to dismiss can be filed at any time during the proceedings, subject to the exception of estoppel by laches provided for in Tijam v. Sibonghanoy [23 SCRA 29 (1968)].

Motion to Dismiss The Amended Rules of Court have deleted Rule 16 of the old Rules of Court, which formerly dealt with motions to dismiss. Despite this, the Amended Rules do allow the filing of a

Remedies from the Denial of a Motion to Dismiss

Page 74 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Recall that affirmative defenses, if denied, cannot be the subject of a motion for reconsideration, or petition for certiorari, prohibition, or mandamus. [Sec. 12, Rule 8] However, if the non-waivable grounds under Sec. 1, Rule 9 are raised not as affirmative defenses, but in a motion to dismiss, it is submitted that the movant may still file a motion for reconsideration or a petition for certiorari, mandamus, or prohibition against the order of denial of the motion to dismiss. This is because there is no prohibition against its filing, as opposed to if the ground is set forth as an affirmative defense in the answer and the affirmative defense is denied. Note: The remedy of a petition for certiorari under Rule 65 is available only when the denial of the motion to dismiss is tainted with grave abuse of discretion. Generally, the proper remedy against the denial of a motion to dismiss would be going through the usual trial process, and later, filing a timely appeal against an adverse judgement. [1 Riano 412, 2016 Bantam Ed.] 2. Motion to hear affirmative defenses; Note: Such motion is prohibited since under the Amended Rules, the court is required to act on the affirmative defenses set out in the answer within 30 calendar days if the affirmative defense is among those listed in Sec. 12, Rule 8. The court is also allowed to avail of a summary hearing within 15 calendar days from the filing of the answer, and is thereafter mandated to resolve the affirmative defense within 30 calendar days from the termination of the summary hearing if the affirmative defenses are those set forth in the first paragraph of Sec. 5(b), Rule 6. [Sec. 12, Rule 8]

REMEDIAL LAW

3. Motion for reconsideration of the court’s action on affirmative defenses; Note: The denial of an affirmative defense shall not be the subject of a motion for reconsideration or a petition for certiorari, prohibition, or mandamus. [Sec. 12, Rule 8] However, it is not clear from the amended rules whether the court’s action of approving an affirmative defense cannot be the subject to a motion for reconsideration, since Sec. 12(c), Rule 15 merely provides that a motion for reconsideration of the court’s action on an affirmative defense is a prohibited pleading. It does not distinguish whether between the court’s act of either denying or approving the affirmative defense. 4. Motion to suspend proceedings without a TRO or injunction issued by a higher court; Note: The principle of judicial courtesy justifies the suspension of proceedings before the lower courts even without an injunctive writ or order from the higher court. However, this remains an exception and may be applied only if there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court. [Trajano v. Uniwide Sales Warehouse Club, G.R. No. 190253, (2014)] 5. Motion for extension of time to file pleadings, affidavits, or any other papers, except a motion for extension to file an answer as provided by Sec. 11, Rule 11; Any pleading may still be filed out of time without seeking for motion for extension of time, and it will depend on the court whether it

Page 75 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

will be admitted. The Rules authorizes the court, in its discretion, to accept a pleading, although filed late. [Sec. 11, Rule 11]

with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. [Sec. 1, Rule 12]

6. Motion for postponement intended for delay, except if it is based on: • Acts of god, • Force majeure, or • Physical inability of the witness to appear and testify. [Sec. 12, Rule 15]

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars, or avail of the proper mode of discovery. [Galeon v. Galeon, G.R. No. L30380 (1973)]

Allowed motions for postponement If the motion for postponement is granted, the presentation of evidence by the moving party must still be terminated on the dates previously agreed upon. [Sec. 12, Rule 15]

i. Purpose and When Applied For Purpose: To enable the movant to prepare his or her responsive pleading. [Sec. 1, Rule 12].

Note: The dates previously agreed upon refer to those set forth in the schedule of trial as required under Sec. 1, Rule 30.

It is not to enable the movant to prepare for trial. When this is the purpose, the appropriate remedy is to avail of Discovery Procedures under Rules 23 to 29 [1 Riano 419, 2011 Ed.]

The motion for postponement, whether written or oral, shall be accompanied by the original official receipt from the clerk of court evidencing payment of the postponement fee.

When applied for 1. Before responding to a pleading. 2. If the pleading is a reply, within 10 calendar days from service thereof. [Sec. 1, Rule 12]

Such receipt evidencing payment of the fee shall be submitted at the time of the filing of the motion or not later than the next hearing date. The clerk shall not accept the motion unless accompanied by said receipt. [Sec. 12, Rule 15]

Contents The motion shall point out 1. The defects complained of, 2. The paragraph wherein they are contained, and 3. The details desired. [Sec. 1, Rule 12]

Note: Sec. 3, Rule 30 allows postponement of trial due to illness of party or counsel, provided that their presence is indispensable and that the character of illness is such as to render the non-attendance excusable.

The only question to be resolved in such motion is whether the allegations in the complaint are averred with sufficient definiteness or particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic, G.R. No. 89114 (1991)]

b. Motions for Bill of Particulars Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred

What cannot be done in a bill of particulars a. To supply material allegations necessary to the validity of a pleading

Page 76 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. To change a cause of action or defense stated in the pleading c. To state a cause of action or defense other than the one stated d. To set forth the pleader’s theory of his cause of action or a Rule of evidence on which he intends to reply e. To furnish evidentiary information [Virata v. Sandiganbayan, G.R. No. 103527 (1993)] ii. Actions of The Court Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court, which may either 1. Deny, or 2. Grant the motion outright, or 3. Allow the parties the opportunity to be heard. [Sec. 2, Rule 12] iii. Compliance with the Order and Effect of Non-compliance If motion is granted, either in whole or in part, the pleader must file a bill of particulars or a more definite statement, within 10 calendar days from notice of order, unless the court fixes a different period. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate pleading or in an amended pleading, serving a copy thereof on the adverse party [Sec. 3, Rule 12] A bill of particulars becomes part of the pleading for which it was intended [Sec. 6, Rule 12] Effect of non-compliance 1. If the order is not obeyed, or in case of insufficient compliance therewith, the court may

REMEDIAL LAW

a. Order the striking out of the pleading or the portions thereof to which the order is directed, or b. Make such an order as it may deem just. [Sec. 4, Rule 12] 2. If the plaintiff fails to obey, his complaint may be dismissed by the court. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. [Sec. 3, Rule 17] 3. If the defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Sec. 3, Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17] [1 Riano 422, 2011 Ed.] iv. Effect on The Period To File A Responsive Pleading Provided that the Motion for Bill of Particulars is sufficient in form and substance, it stays the period for the movant to file his responsive pleading. [1 Riano 422, 2011 Ed.] When to file responsive pleading 1. After a. Service of the bill of particulars or of a more definite pleading, or b. Notice of denial of his motion 2. The moving party may file his responsive pleading a. Within the period to which he was entitled at the time of filing his motion, b. Which shall not be less than 5 calendar days in any event. [Sec. 5, Rule 12]

9. DISMISSAL OF ACTIONS a. Dismissal with Prejudice When a motion to dismiss or an affirmative defense is granted on the following grounds,

Page 77 of 525

U.P. LAW BOC

CIVIL PROCEDURE

the order shall bar the refiling of the same action or claim: a. The cause of action is barred by prior judgment; b. The cause of action is barred by the statute of limitations; c. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; or d. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. Note: Such rule does not bar the filing of an appeal to challenge the granting of the motion to dismiss or the affirmative defense. [Sec. 13, Rule 15]

b. Dismissal Plaintiff

Upon

Notice

by

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of a. The answer, or b. A motion for summary judgment Upon such notice being filed, the court shall issue an order confirming the dismissal. [Sec. 1, Rule 17] Note: Sec. 1, Rule 17 refers to “before service”, not “before filing.” Withdrawal is not automatic but requires an order by the court confirming the dismissal. Until thus confirmed, the withdrawal does not take effect [1 Herrera 1055, 2007 Ed.] It is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, it merely confirms the dismissal already effected by the filing of the notice [1 Riano 489, 2014 Bantam Ed.]

REMEDIAL LAW

General rule: Dismissal is without prejudice Exceptions: a. Unless otherwise stated in the notice b. A notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim [Sec. 1, Rule 17] Two-dismissal Rule The notice of dismissal operates as an adjudication upon the merits [Sec. 1, Rule 17] Applies when the plaintiff has 1. A twice dismissed action, 2. Based on or including the same claim, 3. In a court of competent jurisdiction. [1 Riano 490, 2014 Bantam Ed.]

c. Dismissal Upon Motion by Plaintiff; Effect on Existing Counterclaim A complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper [Sec. 2, Rule 17] General rule: Dismissal is without prejudice Exception: Otherwise specified in the order [Sec. 2, Rule 17] Effect on counterclaim The dismissal shall be without prejudice to the right of the defendant to prosecute his counter­claim in a separate action unless within 15 calendar days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action [Sec. 2, Rule 17]

Page 78 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: Sec. 2, Rule 17 is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction [1 Riano 491, 2014 Bantam Ed.]

d. Dismissal Due to The Fault of Plaintiff The complaint may be dismissed upon motion of the defendant or upon the court’s own motion if, for no justifiable cause, the plaintiff: 1. Fails to appear on the date of the presentation of his evidence in chief on the complaint a. The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence [Jalover v. Ytoriaga, G.R. No. L-35989 (1977)] 2. Fails to prosecute his action for an unreasonable length of time, also called as non-prosequitur a. The test for dismissal of a case due to failure to prosecute is whether or not, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA, G.R. No. 103185 (1993)] b. The dismissal of an action pursuant to this Rule rests upon the sound discretion of the court. [Smith Bell and Co. v. American President Lines Ltd., G.R. Nos. L-5304 to L-5324 (1954)] c. The action should never be dismissed on a non-suit for want of prosecution when the delay was caused by the parties looking towards a settlement.

REMEDIAL LAW

[Goldloop Properties Inc. v. CA, G.R. No. 99431 (1992)] 3. Fails to comply with the ROC or any court order. [Sec. 3, Rule 17] a. A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. [Arellano v. CFI Sorsogon, G.R. No. L-34897 (1975)] [also see Sec. 5, Rule 29] General rule: This dismissal shall have the effect of an adjudication upon the merits and is thus a dismissal with prejudice. [AFP Retirement v. Republic, 694 SCRA 118 (2013)] Exception: Otherwise declared by the court. [Sec. 3, Rule 17] Note: Under Sec. 3, Rule 14, the plaintiff’s failure to comply with the order of the court to serve summons shall cause the dismissal of the initiatory pleading without prejudice. This rule can be seen as an exception to the general rule that dismissal due to failure to comply with the order of the court shall cause dismissal with prejudice. Effect on counterclaim Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action [Sec. 3, Rule 17]

e. Dismissal of Counterclaim, Cross-claim, Or Third-party Complaint Provisions of Rule 17 shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. Voluntary dismissal by the claimant by notice as in Sec. 1, Rule 17 shall be made:

Page 79 of 525

U.P. LAW BOC

CIVIL PROCEDURE

a. Before a responsive pleading or a motion for summary judgment is served; or b. If there is none, before the introduction of evidence at trial or hearing. [Sec. 4, Rule 17]

10.

PRE-TRIAL

a. Concept of Pre-Trial Pre-trial is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the action, such as the a. Number of witnesses the parties intend to present b. Tenor or character of their testimonies c. Documentary evidence d. Nature and purpose of each of them e. Number of trial dates that each will need to put on his case. [1 Herrera 1074, 2007 Ed.]

b. Nature and Purpose Pre-trial is mandatory and should terminated promptly. [Sec. 2, Rule 18]

be

Purpose of pre-trial is to consider 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution 2. Simplification of the issues 3. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof 4. Limitation of the number and identification of witnesses and the setting of trial dates

REMEDIAL LAW

5. Advisability of a preliminary reference of issues to a commissioner 6. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist 7. The requirement for the parties to: a. Mark their evidence if not yet marked in the judicial affidavits of their witnesses, Note: The Judicial Affidavit Rule requires that documentary or object evidence must be marked and attached to the judicial affidavits, with such evidence being marked as Exhibit A, B, C for the plaintiff, and Exhibit 1, 2, 3 for the defendant. [Sec. 2(a)(2), AM No. 12-8-8-SC] b. Examine and make comparisons of the adverse parties’ evidence visa-vis the copies to be marked, c. Manifest for the record, stipulations regarding the faithfulness of the reproductions and the genuineness and due execution of the adverse parties’ evidence, d. Reserve evidence not available at the pre-trial, but only in the following manner, or else it shall not be allowed i. Testimonial evidence: by giving the name or position and the nature of the proposed witness ii. Documentary/Object evidence: by giving a particular description of the evidence 8. Such other matters as may aid in the prompt disposition of the action Failure without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a waiver of any

Page 80 of 525

U.P. LAW BOC

CIVIL PROCEDURE

objections to the faithfulness of the reproductions marked, or their genuineness and due execution Failure without just cause to bring the evidence required shall be deemed a waiver of the presentation of such evidence. [Sec. 2, Rule 18] Note: Both waivers mentioned above are based on lack of just cause either to appear during pre-trial or to bring the evidence required.

c. Notice of Pre-Trial After the last responsive pleading has been served and filed, the branch clerk of court shall issue a notice of pre-trial within 5 calendar days from filing. [Sec. 1, Rule 18] Note: Under the Amended Rules, there is no longer a need for the plaintiff to move ex parte for the case to be set for pre-trial. Such was the case before, as mandated by AM No. 03-1-09SC. Under that circular, the plaintiff used to be burdened with the duty to move ex parte that the case be set for pre-trial conference. Such was done 5 days from the date of the filing of the reply. If the plaintiff failed to move for such, it became the duty of the branch clerk of court to do so. [BPI v. Genuino, G.R. No. 208792 (2015)] The Amended Rules have now deleted the requirement for the plaintiff to move for pretrial, and has directly vested it with the clerk of court. The “last pleading” need not be literally construed as the actual filing of the last pleading. For the purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient. [Sarmiento v. Juan, G.R. No. L-56605 (1983)]

REMEDIAL LAW

The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial. [Bembo v. CA, G.R. No. 116845 (1995)] When pre-trial conducted The notice of pre-trial shall set pre-trial to be conducted not later than 60 calendar days from the filing of the last responsive pleading. [Sec. 1, Rule 18] Contents of Notice of Pre-Trial The notice of pre-trial shall include the dates set for: a. Pre-trial; b. Court-Annexed Mediation (CAM); and c. Judicial Dispute Resolution (JDR), if necessary [Sec. 3, Rule 18] Service of Notice of Pre-Trial The notice of pre-trial shall be served on counsel, or on the party if he or she has no counsel [Sec. 3, Rule 18]

d. Appearance of Parties; Effect of Failure to Appear It shall be the duty of the parties and their counsel to appear at: a. Pre-trial, b. Court-annexed mediation, and c. Judicial dispute resolution, if necessary. [Sec. 4, Rule 18] Note: Both parties and their counsel are required to attend. Appearance of either only the party or his counsel counts as nonappearance, unless: Excused non-appearance Appearance of a party and counsel may only be excused for: a. Acts of god,

Page 81 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. Force majeure, or c. Duly substantiated physical inability. [Sec. 4, Rule 18] Appearance by Representative A representative may appear on behalf of a party, but must be fully authorized in writing to: a. Enter into an amicable settlement, b. To submit to alternative modes of dispute resolution, and c. To enter into stipulations or admissions of facts and documents. [Sec. 4, Rule 18] Note: It is not sufficient for the representative to be given the power to enter into one or two of the matters enumerated. An incomplete authority does not satisfy the requirement of the Rules and should be deemed the equivalent of having no authority at all. [1 Riano 429, 2016 Bantam Ed.] Moreover, only the authorization is required in order for a representative to appear on behalf of a party. A ground for excused nonappearance need not concur with the written authorization in order to allow a representative to appear on behalf of the party. The written authorization must be in the form of a special power of attorney as authority to enter into amicable settlement must be in such form [Sec. 23, Rule 138; Art. 1878(3), Civil Code] Effect of failure to appear Note: The party and counsel must have been duly notified and their failure to appear was without valid cause. It is only then that the following effects occur upon non-appearance of both party and counsel:

REMEDIAL LAW

i. By the plaintiff and counsel The action shall be dismissed with prejudice, unless otherwise ordered by the court. [Sec. 5, Rule 18] Remedy: Motion for reconsideration, then appeal Note: This would be the proper remedy because dismissal with prejudice amounts to an adjudication on the merits and is thus, final. [1 Riano 426, 2016 Bantam Ed.] ii. By the defendant and counsel The plaintiff shall be allowed to present evidence ex parte within 10 calendar days from termination of pre-trial, and judgment shall be rendered based on the evidence offered. [Sec. 5, Rule 18] Remedy: Motion for reconsideration, and if the denial is tainted with grave abuse of discretion, a petition for certiorari Note: This is because the order of the court allowing the plaintiff to present evidence ex parte does not dispose of the case with finality and the order is, therefore, interlocutory and not appealable. [1 Riano 428, 2016 Bantam Ed. citing Sec. 1(b), Rule 41] The non-appearance of the defendant in pretrial is not a ground to declare him in default. While the effect of the failure of the defendant to appear at the pre-trial is similar to that of default (possible presentation of evidence ex parte), under the Rules, this consequence is not to be called a declaration of default. [1 Riano 302, 2016 Bantam Ed.]

Page 82 of 525

U.P. LAW BOC

Default by defendant [Sec. 3, Rule 9]

CIVIL PROCEDURE

Failure to appear by defendant [Sec. 5, Rule 18]

Upon motion of the Not required claiming party with notice to the defending party Requires proof of Not required failure to answer Court may render Court renders judgment without judgment based on receiving evidence the evidence presented ex parte Judgment by default

Judgment ex parte

Relief awarded must No such limitation be the same in nature and amount as prayed for in the complaint

e. Pre-Trial Brief; Effect of Failure to File When to file and serve pre-trial brief The parties shall file with the court and serve on the adverse party to ensure receipt at least 3 calendar days before the date of pre-trial their pre-trial briefs. [Sec. 6, Rule 18] Contents of pre-trial brief: a. A concise statement of the case and the reliefs prayed for; b. A summary of admitted facts and proposed stipulation of facts; c. The main factual and legal issues to be tried or resolved; d. The propriety of referral of factual issues to commissioners;

REMEDIAL LAW

e. The documents or other object evidence to be marked, stating the purpose thereof; f. The names of the witnesses, and the summary of their respective testimonies; and g. A brief statement of points of law and citation of authorities. [Sec. 6, Rule 18] Legal effect of representations and statements in the pre-trial brief The parties are bound by the representations and statements in their respective pre-trial briefs. [A.M. 03-1-09-SC (2004)] Note: Representations and statements in the pre-trial briefs are in the nature of judicial admissions [Sec. 4, Rule 129] Effect of failure to file: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. [Sec. 6, Rule 18] Therefore, the following sanctions are meted out to those failing to file their respective pre-trial briefs: 1. Waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution, [Sec. 2, Rule 18] 2. If plaintiff and counsel fail to appear • The action will be dismissed with prejudice, unless otherwise ordered by the court If defendant and counsel fail to appear • The plaintiff shall be allowed to present evidence ex parte within 10 calendar days from termination of pre-trial, and judgment shall be rendered based on the evidence offered. [Sec. 5, Rule 18]

Page 83 of 525

U.P. LAW BOC

CIVIL PROCEDURE

examined in one (1) day only, shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or crossexamination for justifiable reasons [Item I-A-5-i, A.M. No. 03-1-09-SC]

f. Pre-Trial Order When is a Pre-trial order Issued The court shall issue and order within 10 calendar days from termination of pre-trial. [Sec. 7, Rule 18] •

Effects of pre-trial order The contents of the order shall control the subsequent course of the action, unless: a. The order is modified before trial to prevent manifest injustice, or [Sec. 7, Rule 18] b. There are issues impliedly included therein or may be inferable therefrom by necessary implication. [Philippine Export and Foreign Loan Guarantee Corp. v. Amalgamated Management and Development Corp., G.R. No. 177729 (2011)] i. Contents of a pre-trial order a. An enumeration of the admitted facts; b. The minutes of the pre-trial conference prepared by the branch clerk of court [Sec. 2, Rule 18]; c. The legal and factual issued to be tried; d. The applicable law, rules, and jurisprudence; e. The evidence marked; f. The specific trial dates for continuous trial, which shall be within the period provided by the rules; g. The case flowchart to be determined by the court • Contains the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in setting the trial dates. h. A statement that the one-day examination of witness rule and most important witness rule shall be strictly followed; and • One day examination of witness rule The One-Day Examination of Witness Rule, that is, a witness has to be fully

REMEDIAL LAW

Most important witness rule The court shall determine the most important witnesses to be heard and limit the number of witnesses (Most Important Witness Rule) [Item I-A-5-j, AM No. 03-1-09-SC] The court shall require the parties and/or counsel to submit to the Branch COC the names, addresses and contact numbers of the witnesses to be summoned by subpoena [Item I-A-5-l, AM No. 03-1-09-SC] A statement that the court shall render judgment on the pleadings or summary judgment, as the case may be. [Sec. 7, Rule 18]

Use of Judicial Affidavits The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits. However, even witnesses for the defendant are required to submit judicial affidavits, which likewise take the place of their direct testimony. [AM No. 12-8-8-SC, Sec. 2(a)(1)] After identification of such affidavits, crossexamination shall proceed immediately. [Sec. 7, Rule 18] Postponement of presentation of witnesses General Rule: Postponement of presentation of the parties’ witnesses at a scheduled date is prohibited. • Effect of failure to appear without valid cause: The presentation of the scheduled witness will proceed with the absent party

Page 84 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Exception: A motion for postponement for presentation of witnesses is allowed if the postponement is based on: a. Acts of God, b. Force majeure, or c. Duly substantiated inability of the witness to appear and testify. Note: The party causing the postponement must still finish his presentation of evidence within the remaining dates previously agreed upon. [Sec. 7, Rule 18 in relation to Sec. 2, Rule 30] Conduct of pre-trial The judge shall be the one to ask questions on issues raised by the parties, and all questions or comments by counsel or parties must be directed to the judge to avoid hostilities between the parties. [A.M. No. 03-1-09-SC (2004)] Motu proprio order for summary judgment or judgment on the pleadings The court may motu proprio include in the pretrial order that the case be submitted for summary judgment or judgment on the pleadings without need of position papers or memoranda, and without prejudice to a party moving for either judgement on the pleadings or summary judgement when: a. There be no more controverted facts, b. No more genuine issue as to any material fact, c. There be an absence of any issue, or d. Should the answer fail to tender an issue. [Sec. 10, Rule 18] Note: Such order is deemed an interlocutory order as it is included in the pre-trial order. However, the order of the court submitting the case for such judgment shall not be subject to

REMEDIAL LAW

appeal or certiorari as provided for expressly under Sec. 10, Rule 18. Judgment shall be rendered within 90 calendar days from termination of pre-trial. [Sec. 10, Rule 18] Court-Annexed Mediation (CAM) After pre-trial and after the issues are joined, the court shall refer the parties for mandatory CAM. Period: Not exceeding 30 calendar days without extension. [Sec. 8, Rule 18] Note: A.M. 11-1-6-SC-PHILJA insofar as it provides that an extended period of another 30 days may be granted by the court upon motion by the mediator and with the conformity of the parties shall no longer apply. Effect of failure of mediation: a. Proceed with trial; or b. If the judge is convinced that settlement is possible, referral to another court to proceed with JDR. Judicial Dispute Resolution (JDR) If the judge of the court to which the case is originally raffled is convinced that settlement is still possible, the case may be referred to another court for JDR. Period: Non-extendible period of 15 calendar days from notice of failure of CAM. Note that the period to conduct JDR is included in the period for the presentation of plaintiff’s evidence. [Sec. 1[a][i], Rule 30] Effect of failure: Trial before the original court shall proceed on the dates agreed upon. [Sec. 9, Rule 18]

Page 85 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: JDR is no longer mandatory as provided for under A.M. 11-1-6-SC-PHILJA due to the amended rules. The aforementioned A.M. also provides for a 30-day JDR for first level courts, a 60-day JDR for second level courts, and discretion on the part of the JDR judge to order a longer period of JDR. Such provisions are now repealed due to the Amended Rules providing for a non-extendible shorter period of 15 calendar days for JDR.

As to when conducted

Confidentiality All proceedings during CAM and JDR shall be confidential. [Sec. 9, Rule 18]

REMEDIAL LAW

Pre-trial in a Civil Case [Rule 18]

Pre-trial in a Criminal Case [Rule 118]

Not later than 60 calendar days from the filing of the last responsive pleading. [Sec. 1]

After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused

Effect of non-appearance at CAM or JDR Note: Non-appearance at CAM or JDR, if necessary, shall be deemed as nonappearance at pre-trial. [Sec. 3, Rule 18] Therefore, the following sanctions are meted out to non-appearing parties at CAM or JDR: 1. Waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution, [Sec. 2, Rule 18] 2. If plaintiff and counsel fail to appear • The action will be dismissed with prejudice, unless otherwise ordered by the court If defendant and counsel fail to appear • The plaintiff shall be allowed to present evidence ex parte within 10 calendar days from termination of pre-trial, and judgment shall be rendered based on the evidence offered. [Sec. 5, Rule 18]

Exception: If special laws and circulars provide for a shorter period [Sec. 1] As to need of motion

g. Pre-Trial in Civil Cases vs. PreTrial in Criminal Cases

Page 86 of 525

There is no longer a need for the plaintiff to move ex parte to set the case for pretrial. Under the Amended Rules, the clerk of court should issue the notice of pre-trial within 5 calendar days from filing of the last responsive pleading. [Sec. 1]

Ordered by the court and no motion is required from either party [Sec. 1]

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

As to whether or not mandatory

Mandatory [Sec. 2]

Mandatory [Sec. 1]

As to effect of failure to appear

Of the plaintiff – the case shall be dismissed with prejudice, unless the court orders

If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. [Sec. 3]

Of the defendant – the plaintiff shall be allowed to present evidence ex parte, and judgment shall be rendered based thereon [Sec. 5, Rule 18]

As to agreement s of admission s made

As to possibility of an amicable settlement

The court shall consider this matter [Sec. 2(a)]

Not in the enumeration to be considered. [Sec. 1]

As to requireme nt of PreTrial Brief

A pre-trial brief is specifically required to be submitted [Sec. 6]

A pre-trial brief is not required under Rule 118.

11.

The pre-trial order shall include an enumeration of the admitted facts and proposed stipulation of facts. [Sec. 7(a)]

Shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. [Sec. 2]

INTERVENTION

Definition of Intervention A proceeding in a suit or an action by which a third person is permitted by the court to make himself a party, either: 1. Joining plaintiff in claiming what is sought by the complaint, 2. Uniting with defendant in resisting the claims of the plaintiff, or 3. Demanding something adverse to both of them. [1 Herrera 1117, 2007 Ed., citing Gutierrez v. Villegas, G.R. No. L-11848 (1962)] Purpose of Intervention Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest [Cariño v. Ofilada, G.R. No. 102836 (1993)] Nature of Intervention Intervention cannot alter the nature of the action and the issues already joined. [Castro v. David, 100 Phil 454 (1956)] Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. [Saw vs CA, 195 SCRA 740

Page 87 of 525

U.P. LAW BOC

CIVIL PROCEDURE

(1991)] An independent controversy cannot be injected in the suit by intervention since it would enlarge the issues and expand the scope of the remedies. [Mactan-Cebu Intl Airport Authority vs Heirs of Minoza, 641 SCRA 520 (2011)]

a. Requisites for Intervention 1. A motion for leave to intervene filed at any time before rendition of judgement by the trial court [Sec. 2, Rule 19] Note: A motion for intervention is a litigious motion. Therefore, the court shall resolve the motion within 15 calendar days from receipt of the opposition or upon expiration of the period to file such opposition. The period to file an opposition would be 5 calendar days from the receipt of such opposition. [Sec. 5, Rule 15]

REMEDIAL LAW

The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral [Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)] Notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding [Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

b. Time to Intervene 2. A legal interest: a. In the matter in litigation; b. In the success of either of the parties; c. An interest against both; or d. So situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof 3. Intervention will not unduly delay or prejudice the adjudication of rights of the original parties 4. Intervenor’s rights may not be fully protected in a separate proceeding. [Sec. 1, Rule 19; Lorenza Ortega v. CA, G.R. No. 125302 (1998)] Meaning of legal interest The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment [1 Regalado 324-325, citing 6318 v. Nocom, G.R. No. 175989 (2008)]

The motion to intervene may be filed at any time before rendition of judgment by the trial court. [Sec. 2, Rule 19] How effected a. By filing a motion to intervene, b. Attaching a copy of the pleading-inintervention, and c. Serving the motion and pleading-inintervention on the original parties [Sec. 2, Rule 19] Pleadings-in-intervention a. Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties b. Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter [Sec. 3, Rule 19] c. Answer to complaint-in-intervention - It shall be filed within 15 calendar days from notice of the order admitting the complaint-

Page 88 of 525

U.P. LAW BOC

in-intervention, unless a different period is fixed by the court [Sec. 4, Rule 19]

c. Remedy for the Denial of Motion to Intervene An improper denial of a motion for intervention is correctable by appeal [1 Regalado 324, 2010 Ed., citing Ortiz v. Trent, G.R. No. 5099 (1909) and Hospicio de San Jose v. Piccio, G.R. No. L-8540 (1956)] But if there is grave abuse of discretion, mandamus will lie, where there is no other plain, speedy and adequate remedy [1 Regalado 324, 2010 Ed., citing Dizon v. Romero, G.R. No. L-26252 (1968) and Macias v. Cruz, G.R. No. L-28947 (1973)] Remedy for granting of the motion to intervene An improper granting of a motion for intervention may be controlled by certiorari and prohibition. [1 Regalado 324, 2010 Ed., citing Pflieder v. De Britanica, G.R. No. L-19077 (1964)]

12.

REMEDIAL LAW

CIVIL PROCEDURE

SUBPOENA

Definition A process directed to a person requiring him or her: 1. To attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition 2. Also to bring any books, documents, or other things under his or her control. [Sec. 1, Rule 21]

Subpoena

Summons

A process directed to a person requiring him to attend and to testify. It may also require him to bring with him any books, documents, or other things under his control [Sec. 1, Rule 21]

A direction that the defendant answer within the time fixed by the ROC [Sec. 2, Rule 14]

Directed to a person Directed [Sec. 1, Rule 21] defendant Rule 14]

to the [Sec. 2,

Costs for court Tender of costs not attendance and the required by Rule 14 production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. [Sec. 6, Rule 21] Who may issue 1. Court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body, or 4. Any justice of the SC or of the CA, in any case or investigation pending within the Philippines. [Sec. 2, Rule 21] Form and contents 1. Shall state the name of the court and the title of the action or investigation 2. Shall be directed to the person whose attendance is required

Page 89 of 525

U.P. LAW BOC

CIVIL PROCEDURE

3. For subpoena duces tecum, shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. [Sec. 3, Rule 21] When issued against prisoners When applied for, the judge or officer shall examine and study carefully the application to determine whether it is made for a valid purpose. [Sec. 2, Rule 21] When Supreme Court authorization required When the subpoena for appearance or attendance in any court is issued against a prisoner: 1. Sentenced to death, reclusion perpetua, or life imprisonment, and 2. Confined in any penal institution. [Sec. 2, Rule 21] Personal appearance in court; same effect as subpoena A person present in court before a judicial officer may be required to testify as if he or she were in attendance upon a subpoena. [Sec 7, Rule 21] Subpoena for depositions Proof of service of notice to take a deposition shall constitute sufficient authorization for the issuance of subpoenas for the persons named in such notice. Note: In order to issue a subpoena duces tecum, an order of the court shall be necessary. [Sec 5, Rule 21]

a. Subpoena Duces Tecum A process directed to a person requiring him to bring with him books, documents, or other things under his control [Sec. 1, Rule 21]

REMEDIAL LAW

The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum, with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena [see Sec. 1, Rule 21] Note the requirements for a subpoena duces tecum, see item (3) of “Form and contents” above.

b. Subpoena Ad Testificandum A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition [Sec. 1, Rule 21] Note: This is the technical and descriptive term for the ordinary subpoena. [1 Regalado 330, 2010 Ed.]

c. Service of Subpoena Service of a subpoena shall be made in the same manner as personal or substituted service of summons [Sec. 6, Rule 21] Formalities a. The original is exhibited to the person served; b. A copy is delivered to him; and c. Costs for court attendance and the production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. [Sec. 6, Rule 21] When made: must be made so as to allow the witness a reasonable time for preparation and

Page 90 of 525

U.P. LAW BOC

CIVIL PROCEDURE

travel to the place of attendance [Sec. 6, Rule 21]

d. Compelling Attendance Witnesses; Contempt

of

Warrant to compel attendance The court which issued the subpoena may issue a warrant to the sheriff or his or her deputy to arrest the witness and to bring him or her before the court or officer where his or her attendance is required, upon a. Proof of service, and b. Failure of witness to attend. [Sec. 8, Rule 21] Costs The cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his or her failure to answer the subpoena was willful and without just excuse [Sec. 8, Rule 21] Failure to obey Effect of failure by any person without adequate cause to obey a subpoena served upon him or her: a. Contempt of court who issued the subpoena, or b. Punishment in accordance with the applicable law or rule if the subpoena was not issued by a court. [Sec. 9, Rule 21] When Sec. 8 and Sec. 9 will not apply Provisions regarding the compelling of attendance and contempt shall not apply to a: a. Witness who resides more than 100 km from his or her residence to the place where he or she is to testify by the ordinary course of travel; or b. Detention prisoner if no permission of the court in which his or her case is pending was obtained. [Sec. 10, Rule 21]

REMEDIAL LAW

Viatory Right The right not to be compelled to attend upon a subpoena by reason of the distance from the residence of the witness to the place where he is to testify is sometimes called the viatory right of a witness [1 Regalado 334-335, 2010 Ed.] Note: Such right applies only in civil cases, not criminal cases. [Genorga v. Quitain, A.M. No. 981-CFI (1977)]

e. Quashing of Subpoena For quashing subpoena duces tecum 1. A motion is promptly made and, in any event, at or before the time specified therein 2. Grounds a. Subpoena is unreasonable and oppressive, or b. Relevancy of the books, documents or things does not appear, or c. Person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof d. Witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. [Sec. 4, Rule 21] For quashing subpoena ad testificandum a. Witness is not bound thereby, or b. Witness fees and kilometrage allowed by the ROC were not tendered when the subpoena was served. [Sec. 4, Rule 21]

13.

COMPUTATION OF TIME

Applicability In computing any period of time: a. Prescribed or allowed by the Rules, b. By order of the court, or

Page 91 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. By any applicable statute. [Sec. 1, Rule 22]

6. Physical and mental persons [Rule 28]

How to compute time The day of the act/event from which the designated period begins to run is the excluded and the date of performance included. Note: If the last day of the period falls on a Saturday, Sunday, or legal holiday in the place where the court sits, the time shall not run until the next working day. [Sec. 1, Rule 22] Effect of interruption Should an act be done which interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of cessation of the cause thereof. Note: The day of the act that caused the interruption, shall be excluded in the computation of the period. [Sec. 2, Rule 22]

14.

MODES OF DISCOVERY

Discovery A device employed by a party to obtain information about relevant matters on the case from the adverse party in the preparation for trial. [1 Riano 437, 2016 Bantam Ed.] Purpose To permit mutual knowledge before trial of all relevant facts gathered by both parties so that either party may compel the other to disgorge facts whatever he has in his possession [1 Riano 437, 2016 Bantam Ed.] Modes of Discovery 1. Depositions pending actions [Rule 23] 2. Depositions before action or pending appeal [Rule 24] 3. Interrogatories to parties [Rule 25] 4. Admission by adverse party [Rule 26] 5. Production or inspection of documents or things [Rule 27]

REMEDIAL LAW

examination

of

a. Depositions Pending Action; Depositions Before Action or Pending Appeal i. Meaning of Deposition Deposition – taking of testimony out of court of any person, whether party to the action or not but at the instance of a party to the action. It is taken out of court. [1 Riano 438, 2016 Bantam Ed.] Methods a. By oral examination, or b. By written interrogatory. [Sec. 1, Rule 23] Kinds of depositions 1. Depositions pending action [Rule 23] 2. Depositions before action or pending appeal [Rule 24] Depositions pending action The testimony of any person may be taken upon ex parte motion of a party. Note: The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 21. [Sec. 1, Rule 23] Deposition of a person deprived of liberty The deposition may be taken only by leave of court on such terms as the court prescribes. [Sec. 1, Rule 23] Before whom depositions are taken a. Within the Philippines, it may be taken before a i. Judge, ii. Notary public, or iii. Any person authorized to administer oaths, as stipulated by the parties in writing. [Sec. 14, Rule 23] [Sec. 10, Rule 23] b. Within a foreign state or country, it may be taken i. On notice before a secretary of embassy or legation, consul general,

Page 92 of 525

U.P. LAW BOC

CIVIL PROCEDURE

consul, vice- consul, or consular agent of the Philippines, ii. Before such person or officer as may be appointed by commission or under letters rogatory, or iii. Any person authorized to administer oaths as stipulated by parties in writing. [Sec. 14, Rule 23] [Sec. 11, Rule 23] Disqualification by interest No deposition shall be taken before a person who is a. A relative within the 6th degree of consanguinity or affinity, b. An employee or counsel of any of the parties, c. A relative within the same degree, or employee of such counsel, or d. Any person financially interested in the action. [Sec. 13, Rule 23] Taking depositions upon oral examination 1. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state: a. The time and place for taking the deposition, b. The name and address of each person to be examined, if known, and c. if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. Note: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time [Sec. 15, Rule 23] 2. An order for protection of the parties and the deponent may be issued by the court where the action is pending: a. After notice is served, b. Upon motion by any party or the person to be examined, c. For good cause shown [Sec.16, Rule 23]

REMEDIAL LAW

3. The attendance of the witnesses may be compelled by the use of a subpoena [Sec. 1, Rule 23] 4. Examination and cross-examination of deponents may proceed as permitted at the trial under Secs. 3 to 18 of Rule 132 [Sec 3, Rule 23] 5. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections [Sec. 17, Rule 23] Effect of taking depositions A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. [Sec. 7, Rule 23] Depositions before actions Referred to as perpetuation of testimony because their objective is to perpetuate the testimony of a witness for future use, in the event of further proceedings. [1 Regalado 363, 2010 Ed.] Requisites a. Any person who desires to perpetuate i. his own testimony; or ii. the testimony of another person b. Regarding any matter that may be cognizable in any court of the Philippines. [Sec. 1, Rule 24] Procedure for deposition before action 1. File a verified petition in the court of the place of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show that: a. The petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought,

Page 93 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. The subject matter of the expected action and his interest therein, c. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, d. The names or a description of the persons he expects will be adverse parties and their addresses so far as known, and e. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit Note: Such petition shall ask for an order authorizing the petitioner to take the depositions of the persons sought to be examined who are named in the petition for the purpose of perpetuating their testimony. [Sec. 2, Rule 24] 2. The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. •

At least 20 calendar days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. [Sec. 4, Rule 23]

3. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing [Sec. 4, Rule 24]

REMEDIAL LAW

Deposition pending appeal If an appeal has been taken or the time for taking such has not yet expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in said court. [Sec. 7, Rule 24] Procedure for deposition pending appeal 1. The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. 2. The motion shall state the a. Names and addresses of the persons to be examined, b. The substance of the testimony which he expects to elicit from each, and c. Reason for perpetuating their testimony. 3. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. [Sec. 7, Rule 24] ii. Uses; Scope of Examination General uses of deposition Intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit or proceeding. [1 Regalado 349, 2010 Ed.] Scope of examination Unless otherwise ordered by the court as provided by Secs. 16 and 18, Rule 23, the deponent may be examined regarding any matter: 1. Not privileged, and 2. Relevant to the subject of the pending action, a. Whether relating to the claim or defense of any other party;

Page 94 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

b. Including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and c. Including the identity and location of persons having knowledge of relevant facts. General rule: A deposition is not a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. [Dasmarinas Garments Inc. v. Reyes, G.R. No. 108229 (1993)] Exception: Depositions may be used as evidence under the circumstances in Sec. 4, Rule 23. Specific uses of depositions By whom Deposition Purpose used Contradicting or impeaching the Any Any testimony of deposition party deponent as a witness Deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or An managing adverse Any purpose agent of a party public or private corporation, partnership, or association which is a party

Deposition of a witness, whether or not a party

Page 95 of 525

Any party

Any purpose if the court finds that 1. Witness is dead, or 2. Witness resides more than 100 km from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition, or 3. Witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment, or 4. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 5. Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

orally in open court, to allow the deposition to be used; [Sec. 4, Rule 23] Effect of using deposition General rule: The introduction in evidence of the deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition Exceptions: 1. The deposition is used to contradict or impeach the deponent. 2. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose. [Sec. 4(b), Rule 23] [Sec. 8, Rule 23] Effect of only using a part of the deposition If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. [Sec. 4(d), Rule 23] iii. When May Objections Admissibility Be Made

to

Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying [Sec. 6, Rule 23] iv. When May Taking of Deposition Be Terminated or its Scope Limited When the court/RTC of the place where the deposition is being taken may order the termination or the scope of the deposition limited a. At any time during the taking of the deposition,

b. on motion or petition of any party or of the deponent, c. upon a showing that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party, [Sec. 16, Rule 23] Order terminating examination If the order made terminates the examination, it shall be resumed only upon the order of the court in which the action is pending. Suspension of taking of deposition Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. Note: The court may impose upon either party or witness the requirement to pay reasonable costs and expenses. [Sec. 18, Rule 23] Effect of errors depositions Error and Irregularities Objection as to the notice for taking a deposition

Objection to taking a deposition because of disqualification of officer before whom it is to be taken

Objection to the competency of a witness or competency, relevancy, or

Page 96 of 525

and

irregularities

in

Effect Waived Unless written objection is promptly served upon party giving notice Waived Unless made (1) Before taking of deposition begins or (2) As soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence Not waived by failure to make them before or during the taking of the deposition Unless the ground of the objection is one

U.P. LAW BOC

materiality testimony

CIVIL PROCEDURE

of

Occurring at oral examination and other particulars Objection in the manner of taking the deposition, in the form of questions or answers, in the oath or affirmation, or in conduct of parties and errors of any kind which might be obviated or removed if promptly prosecuted

Objections to the form of written interrogatories under Sec. 25 and 26

In the manner in which testimony is transcribed or the deposition is dealt with by the officer under Sec. 17, 19, 20, and 26

[Sec. 29, Rule 23]

which might have been obviated or removed if presented at that time Waived

Unless reasonable objection thereto is made at the time of taking the deposition

Waived Unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of last interrogatories authorized Waived Unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been, ascertained

REMEDIAL LAW

Orders of the court for the protection of parties and deponents: After notice is served for taking a deposition by oral examination, upon motion by any party or by the person to be examined, and for good cause shown, the court may order that: 1. The deposition shall not be taken 2. It may be taken only at some designated place other than that stated in the notice 3. It may be taken only on written interrogatories 4. Certain matters shall not be inquired into 5. The scope of the examination shall be held with no one present except the parties to the action and their officers or counsel 6. After being sealed the deposition shall be opened only by order of the court 7. Secret processes developments, or research need not be disclosed 8. The parties shall simultaneously filed specified documents or information enclosed in sealed envelope to be opened as directed by the court 9. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression [Sec. 16, Rule 23]

b. Written Interrogatories Adverse Parties

to

Purpose: To elicit material and relevant facts from any adverse parties [Sec. 1, Rule 25] and to assist the parties in clarifying the issues and in ascertaining the facts involved in a case. [Philippine Health Insurance Corp vs Our Lady of Lourdes Hospital, G.R. No. 193158 (2015)] Note: As compared to a bill of particulars which is directed to a pleading and designed to seek for a more definite statement or for particulars in matters not availed with sufficient definiteness in a pleading, interrogatories are not directed against a particular pleading and what is sought is the disclosure of all material and relevant facts from a party. [1 Riano 447, 2016 Bantam Ed.]

Page 97 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

Written interrogatories to parties differ from the written interrogatories in a deposition since such are not served upon the adverse party directly but rather on the officer designated in the notice. [1 Riano 447, 2016 Bantam Ed.] Scope and use: Interrogatories may relate to any matters that can be inquired into under Sec. 2 of Rule 23, and the answers may be used for the same purposes provided in Sec. 4 of the same Rule [ Sec. 1, Rule 25] Procedure for interrogatories to parties 1. Upon ex parte motion, 2. Any party desiring to elicit material and relevant facts from any adverse parties, 3. Shall file and serve written interrogatories on the party 4. Such are to be answered by: a. the party served or, b. if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. [Sec. 1, Rule 25] Note: The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them [Sec. 2, Rule 25] Number of interrogatories No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party [Sec. 4, Rule 25] Answers as judicial admissions Written interrogatories and the answers thereto must both be filed and served. [Sec. 2, Rule 25] The answers constitute judicial admissions. [Sec. 4, Rule 129] Service and filing The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within 15 calendar days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. [Sec. 2, Rule 25]

Objections to interrogatories; answers deferred Objections to any interrogatories may be presented to the court within 10 calendar days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. [Sec. 3, Rule 25] Grounds for objections a. They require the statements of conclusions of law or answers to hypothetical questions or opinion, or mere hearsay, or matters not within the personal knowledge of the interrogated party. b. Frivolous interrogatories need be answered [2 Herrera 50, 2007 Ed.] i. Consequences Answer

of

Refusal

to

If a party or an officer or managing agent of a party fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may: 1. Strike out all or any part of any pleading of the party, 2. Dismiss the action or proceeding or any part thereof, or 3. Enter a judgment by default against the party, and 4. In its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. Note: Such consequences also apply for willful failure to appear before the officer who is to take his deposition. [Sec. 5, Rule 29] ii. Effect of Failure to Serve Written Interrogatories General Rule: A party not served with written interrogatories may not be compelled by adverse party to: 1. Give testimony in open court; or

Page 98 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Give a deposition pending appeal.

REMEDIAL LAW

i. Implied Admission by Adverse Party

Exception: Allowed by the court for good cause shown and to prevent a failure of justice. [Sec. 6, Rule 25]

c. Request for Admission Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegations in a pleading [1 Regalado 370, 2010 Ed.] Purpose In order to allow one party to request the adverse party, in writing, to admit certain material and relevant matters which, most likely, will not be disputed during the trial. [1 Riano 448-449, 2016 Bantam Ed.] In order to avoid unnecessary inconvenience before trial, a party may request the other to: a. Admit the genuineness of any material and relevant document described in and exhibited with the request, or b. Admit the truth of any material and relevant matter of fact set forth in the request. [Sec. 1, Rule 26] How made A party may file and serve upon any other party a written request for the purpose mentioned above. [Sec. 1, Rule 26] Note: The request for admission must be served on the party, not the counsel. This is an exception to the general rule that notices shall be served upon counsel and not upon the party. [Duque v. CA, G.R. 125383 (2002)] When made At any time after issues have been joined. [Sec. 1, Rule 26] Note: Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court. [Rosete v. Sps. Lim, G.R. No. 136051 (2006)]

Each of the matters which an admission is requested shall be deemed admitted unless the party to whom request is directed files and serves upon the party requesting admission a sworn statement. [Sec. 2, Rule 26] Contents 1. Denying specifically the matters of which an admission is requested, or 2. Setting forth in detail the reasons why he cannot truthfully either admit or deny those matters [Sec. 2, Rule 26] Period: Such party must file and serve such statement: 1. Within a period not less than 15 calendar days after service thereof, or 2. Within such further time as the court may allow on motion [Sec. 2, Rule 26] Objections Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement. • His compliance with the request for admission shall be deferred until such obligations are resolved, which resolution shall be made as early as practicable. [Sec. 2, Rule 26] ii. Consequences of Failure to Answer Request for Admission The proponent may apply to the proper court for an order to compel an answer. [Sec. 1, Rule 29] If application is granted, the court 1. Shall require the refusing party to answer; and 2. May require the refusing party or counsel to pay reasonable expenses for obtaining the order, if the court finds that the refusal to answer was without substantial justification.

Page 99 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Effect of refusal to answer Refusal to answer after being directed by the court would: a. Constitute contempt of that court. [Sec. 2, Rule 29] b. Allow the court to make such orders regarding the refusal as are just, like: 1. An order that the matters regarding which questions were asked shall be taken as established for the purposes of the action in accordance with the claim of the party obtaining the order 2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses 3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party, and 4. In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of party for disobeying any of such orders. [Sec. 3, Rule 29] iii. Effect of Admission Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding [Sec. 3, Rule 26] Withdrawal of admission The court may allow the party making the admission under this Rule, to withdraw and amend it upon such terms as may be just. [Sec. 4, Rule 26] iv. Effect of Failure to File and Serve Request for Admission General Rule: A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal

REMEDIAL LAW

knowledge of the latter, shall not be permitted to present evidence on such facts. Exception: Allowed by the court for good cause shown and to prevent a failure of justice. [Sec. 5, Rule 29]

d. Production or Inspection of Documents or Things Purpose This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all the relevant and material facts in connection with the case. [1 Riano 451, 2016 Edition] Procedure for production/inspection of documents or things a. Upon motion of any party, b. Showing good cause therefor, c. The court in which an action is pending may order any party to: i. Produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession custody or control; or ii. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon Note: The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. [Sec. 1, Rule 27] Production/inspection of documents vs Subpoena duces tecum

Page 100 of 525

U.P. LAW BOC

Production or inspection of documents

CIVIL PROCEDURE

Subpoena duces tecum

May be directed to Limited to the parties non- party [Sec. 1, of the action [Sec. 1, Rule 21 refers to “a Rule 27] person”] Issued upon motion May be issued upon of any party [Sec. 1, ex parte application Rule 27] Must show good Need not show good cause [Sec. 1, Rule cause [see Secs. 3 27] and 4, Rule 21] Grounds for quashal (1) Unreasonable, oppressive, May be quashed for irrelevant lack of good cause shown (2) Failure to advance reasonable costs of production [Sec. 4, Rule 21] Disobedience would allow court to make such orders in regard to the refusal as are just, and among others, an order refusing to Disobedience allow the disobedient constitutes contempt party to support or of court [Sec. 9, Rule oppose designated 21] claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony [Sec. 3(b), Rule 29]

e. Physical and Mental Examination of Persons When examination may be ordered Such may be ordered in an action in which the mental or physical condition of a party is in controversy. [Sec. 1, Rule 28]

REMEDIAL LAW

Procedure A motion for the examination is filed in the court where the action is pending: a. Showing good cause for the examination, b. With notice to the party to be examined, and to all other parties, and c. Specifying the time, place, manner, conditions, scope, and person conducting the examination. [Sec. 2, Rule 28] Report of findings A copy of the detailed examination report shall be given by the party causing the examination upon request by the party examined. Note: The party causing the examination shall then be entitled, upon request, to receive from the party examined, a report of any examination previously or subsequently made. [Sec. 3, Rule 28] Refusal to deliver the report If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just If a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. [Sec. 3, Rule 28] Waiver of privilege The party examined waives any privilege regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental/physical examination by: a. Requesting and obtaining a report of the examination ordered, or b. Taking the deposition of the examiner. [Sec. 4, Rule 28] Note: Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege under Sec. 24(b), Rule 130 [1 Regalado 376, 2010 Ed.]

Page 101 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f. Consequences of Refusal to Comply with Modes of Discovery Consequences of Refusal to Comply with Modes of Discovery Form of Sanctions refusal Upon refusal to answer, the proponent may apply to the court for an order to compel an answer.

Refusal to answer any question

If the application is granted, the court shall a. require the refusing party or deponent to answer the question or interrogatory, and b. if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees.

REMEDIAL LAW

incurred in opposing the application, including attorney’s fees. [Sec. 1, Rule 29]

Refusal to be sworn

Refusal to answer designated questions or refusal to produce documents or to submit to physical or mental examination

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses Page 102 of 525

The refusal may be considered a contempt of that court. [Sec. 2, Rule 29] The refusal may be considered a contempt of that court. [Sec. 2, Rule 29] The court may make such orders in regard to the refusal as are just, and among others the following a. An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; b. An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing

U.P. LAW BOC

Refusal to admit under Rule 26

Failure of party to attend or serve

REMEDIAL LAW

CIVIL PROCEDURE

evidence of physical or mental condition; c. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party; and d. In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of party for disobeying any of such orders except an order to submit to a physical or mental examination. [Sec. 3, Rule 29] The court, upon proper application, may issue an order requiring the other party to pay him reasonable expenses incurred, including attorney’s fees PROVIDED that party requesting proves genuineness of such document or truth UNLESS the court finds: a. There were good reasons for denial, or b. Admissions sought were of no importance. [Sec. 4, Rule 29] The court on motion and notice may”

answers to written interrogatories [Sec. 5]

a. Strike out all or any part of any pleading of disobedient party, b. Dismiss the action or proceeding or any part thereof, or c. Enter a judgment by default against disobedient party, and d. d. In its discretion, order payment of reasonable expenses incurred by the other including attorney’s fees.

Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under Rule 29. [Sec. 6, Rule 29]

15.

TRIAL

Definition Trial is the judicial examination and determination of the issues between the parties to the action. [Black’s Law Dictionary 1348, 5th Ed.] The judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing argument. [Acosta v. People, G.R. No. L-17427 (1962)] A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the pre-trial and the determination of granting or denying a motion. [Trocio v. Labayo, G.R. No. L-35701 (1973)] When trial unnecessary A civil case may be adjudicated upon without the need for trial in any of the following cases: 1. Where the pleadings tender no issue at all, judgment on the pleadings may be directed by the court [Rule 34]

Page 103 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment [Rule 35] 3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress [Rule 18; Art. 2028, Civil Code] 4. Where the complaint has been dismissed with prejudice, or when the dismissal has the effect of an adjudication on the merits [Sec. 13, Rule 15; Sec. 3, Rule 17; Sec. 5, last par., Rule 7] 5. Where the case falls under the Rules on Summary Procedure, and 6. Where the parties agree, in writing, upon the facts involved in the litigation and submit the case for judgment on the facts agreed upon, without the introduction of evidence [Sec. 7, Rule 30] [1 Riano 563, 2014 Bantam Ed.] Schedule of Trial The parties shall strictly observe the scheduled hearings as agreed upon and set forth in the pre-trial order. [Sec. 1, Rule 30] Trial dates The schedule of trial dates shall be continuous and within the following periods: a. Initial presentation of plaintiff’s evidence • Shall be set not later than 30 calendar days after termination of pre-trial conference • Plaintiff shall be allowed to present evidence within a period of 3 months or 90 calendar days which shall include the date of JDR. b. Initial presentation of defendant’s evidence • Shall be set not later than 30 calendar days after the court’s ruling on plaintiff’s formal offer of evidence. • Defendant shall be allowed to present evidence within a period of 3 months or 90 calendar days. c. The period for presentation of evidence on the third (fourth-etc.)- party claim, counterclaim, or cross-claim shall be determined by the court.

REMEDIAL LAW



The total of which shall in no case exceed 90 calendar days. d. If deemed necessary, the court shall set the presentation of the parties’ rebuttal evidence • Shall be completed within 30 calendar days. [Sec. 1, Rule 30] Periods for presentation of evidence General Rule: The presentation of evidence of all parties shall be terminated within 10 months or 300 calendar days. Exception: If there are no third (fourth-etc.)party claim, counterclaim, or cross-claim, the presentation of evidence shall be terminated within 6 months or 180 calendar days. Note: Trial dates may be shortened depending on the number of witnesses to be presented. [Sec. 1, Rule 30] Period of decision The court shall decide and serve copies of its decision to the parties within a period not exceeding 90 calendar days from submission of the case for resolution, with or without memoranda. [Sec. 1, Rule 30] Hearing days Trial shall be held from Monday to Thursday. • Courts shall call the cases at exactly 8:30am and 2:00pm pursuant to A.C. No. 3-99. • Hearing on the motions shall be held on Fridays pursuant to Sec. 8, Rule 15. [Sec. 4, Rule 30] Court calendars All courts shall ensure the posting of their court calendars outside their courtrooms at least 1 day before the scheduled hearings. [Sec. 4, Rule 30]

a. Adjournments Postponements

and

A court may adjourn a trial from day to day, and to any stated time, as the expeditious and

Page 104 of 525

U.P. LAW BOC

convenient transaction of require. [Sec. 2, Rule 30]

CIVIL PROCEDURE

business

REMEDIAL LAW

may ii. For Illness of Party or Counsel

Note: The party who caused the postponement is warned that presentation of its evidence must be terminated on the remaining dates previously agreed upon. Limitations on the authority to adjourn General rule: The court has no power to adjourn a trial for a period longer than 1 month for each adjournment; nor more than 3 months in all. Exception: When authorized in writing by the Court Administrator, Supreme Court. [Sec. 2, Rule 30]

Motion to postpone trial based on illness of a party or counsel may be granted if accompanied by affidavit or sworn certification showing: 1. The presence of such party or counsel at the trial is indispensable; and 2. That the character of his or her illness is such as to render his non-attendance excusable [Sec. 3, Rule 30] Note: Such ground for postponement of trial was initially under Section 4 of the same rule.

c. Agreed Statement of Facts Postponement A motion for postponement should not be filed in the last hour especially when there is no reason why it could not have been presented earlier. [Cañete v. Judge, CFI Zamboanga del Sur, G.R. No. L-21743 (1968)] Postponements lie in the court’s discretion. [Hap Hong Hardware Co., Inc. v. Philippine Milling Company, G.R. No. L-16778 (1961)]

b. Requisites of Postpone Trial

Motion

to

i. For Absence of Evidence Under the Old Rules, specifically Sec. 3 of Rule 30, postponement of trial for absence of evidence was allowed provided that the motion for such was accompanied by an affidavit showing the materiality/ relevance of the evidence and that due diligence has been used to procure it. Under the revised rules, however, such section has been deleted, meaning that absence of evidence can no longer be used as a basis for postponement of trial. Under Sec. 12(f), Rule 15, postponement may only be allowed due to acts of god, force majeure, or physical inability of the witness to appear and testify. The amended Sec. 3 of Rule 30 also provides for an additional ground which is illness of a party or counsel.

When all facts are agreed upon The parties may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. When only some facts are agreed upon If the parties agree only on some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe. [Sec. 7, Rule 30] An agreed statement of facts is conclusive on the parties, as well as on the court. Neither of the parties may withdraw from the agreement, nor may the court ignore the same. [McGuire v. Manufactures Life, G.R. L-3581 (1950)]

d. Order of Trial; Reversal of Order Order of trial General Rule: Trial shall be limited to the issues stated in the pre-trial order and proceed as follows: a. Presentation of plaintiff’s evidence in chief b. Presentation of defendant’s evidence in chief and evidence in support of his counterclaim, cross-claim and 3rd-party complaint

Page 105 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. 3rd-party defendant shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party complaint d. 4th-party defendant shall adduce evidence, and so forth e. Parties against whom any counterclaim or cross-claim has been pleaded shall adduce evidence in support of their defense, in the order to be prescribed by court f. Parties may then respectively adduce rebutting evidence only, unless the court permits them to adduce evidence upon their original case g. Upon admission of the evidence, the case shall be submitted for decision, unless the court directs parties to argue or to submit respective memoranda or any further pleading Note: Such is subject to the provisions of Sec. 2, Rule 31 on separate trials. Exception: When the court for special reasons otherwise directs. [Sec. 5, Rule 30] Reverse order Where the answer of the defendant admitted the obligation stated in the complaint, although special defenses were pleaded, the plaintiff has every right to insist that it was for the defendant to come forward with evidence to support his special defenses. [Yu v. Mapayo, G.R. No. L- 29742 (1972)] The reasoning behind this is that the plaintiff need not present evidence since judicial admissions do not require proof [Sec. 2, Rule 129] Offer of exhibits After the presentation of evidence, the offer of exhibits shall be made orally. The objections shall then be made, and the court shall orally rule on the same. [Sec 6, Rule 30] Note: This is consistent with the rule on continuous trial for criminal cases, as well as the amendments to the Rules of Court.

REMEDIAL LAW

e. Consolidation or Severance of Hearing or Trial Consolidation is a procedural device, granted to the court as an aid in deciding how cases in its docket are to be tried, so that the business of the court may be dispatched expeditiously while providing justice to the parties. [Republic v. Heirs of Oribello, G.R. No. 199501 (2013)] When proper: When actions involving a common question of fact or law are pending before the court. [Sec. 1, Rule 31] Court action The court may a. Order a joint hearing or trial of any or all matters in issue in the actions b. Order all actions consolidated; and c. Make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. [Sec. 1, Rule 31] Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and expenses. [1 Regalado 392, 2010 Ed.] Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan, G.R. No. 102370-71 (1992)] The Rules do not distinguish between cases filed before the same branch or judge and those that are pending in different branches or before different judges of the same court, in order that consolidation may be proper, as long as the cases involve the resolution of questions of law or facts in common with each other. [Active Woods Products Co. Inc. v. CA, G.R. No. 86602 (1990)]

Page 106 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Kinds of consolidation a. Quasi-consolidation – where all, except one, of several actions are stayed until one is tried, in which case, the judgment in the one trial is conclusive as to others; not actually consolidation but referred to as such b. Actual consolidation – where several actions are combined into one, lose their separate identity, and become one single action in which judgment is rendered c. Consolidation for Trial – where several actions are ordered to be tried together, but each retains its separate character, and requires the entry of separate judgment [Republic v. Sandiganbayan, G.R. No. 152375 (2011)] Severance The court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue. [Sec. 2, Rule 31] When proper: In furtherance of convenience or to avoid prejudice. [Sec. 2, Rule 31] When a separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim. [see Sec. 5, Rule 36] This provision permitting separate trials presupposes that the claims involved are within the jurisdiction of the court. When one of the claims is not within its jurisdiction, the same should be dismissed, so that it may be filed in the proper court. [1 Regalado 394, 2010 Ed.]

f. Delegation Evidence

of

Reception

of

General Rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties [Sec. 9, Rule 30] Exception: The court may delegate the reception of evidence to its COC in: a. Default hearings

REMEDIAL LAW

b. Ex parte hearings, or c. Cases where parties agree in writing. Note: In order to be able to receive evidence, the clerk of court must be a member of the bar. [Sec. 9, Rule 30] Objections The COC has no power to rule on objections to any question or to the admission of exhibits. Objections shall be resolved by the court upon submission of the clerk’s report and the TSN within 10 calendar days from termination of the hearing. [Sec. 9, Rule 30]

g. Trial by Commissioners Commissioner - A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered [Secs.1, 3, 9, 11, Rule 32] Note: as used in the Rules, “commissioner” includes a referee, an auditor, and an examiner. [Sec. 1, Rule 32] General Rule: Trial by commissioner depends largely upon the discretion of the court. [Secs. 1-2, Rule 32] Exceptions: In the following instances, appointment of a commissioner is necessary: a. Expropriation [Rule 67] b. Partition [Rule 69] Kinds of trial by commissioners a. Reference by consent of both parties b. Reference ordered on motion [Secs. 1-2, Rule 32] i. Reference by Consent or Ordered on Motion Reference by consent The court may order any or all of the issues in a case to be referred to a commissioner by written consent of both parties. [Sec. 1, Rule 32]

Page 107 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Commissioners are to be: 1. Agreed upon by the parties; or 2. Appointed by the court. [Sec. 1, Rule 32] Reference ordered on motion When the parties do not consent, the court may, upon the application of either or of its own motion direct a reference to a commissioner in the following cases: 1. When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein, 2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect, 3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. [Sec. 2, Rule 32] Order of reference When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference, which may contain the following: 1. Specifications or limitations of the powers of the commissioner; 2. A direction to report only upon particular issues, to do or perform particular acts, or to receive and report evidence only; and 3. The date for beginning and closing the hearings, and that for the filing of his report. [Sec. 3, Rule 32] ii. Powers of The Commissioner

REMEDIAL LAW

a. Regulate the proceedings in every hearing before him; b. Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order; c. Issue subpoenas and subpoenas duces tecum; d. Swear witnesses; and e. Unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. [Sec. 3, Rule 32] Note: Refusal of a witness to obey such subpoena or to give evidence before him is deemed contempt of the court which appointed the commissioner. [Sec. 7, Rule 32] Proceedings before the commissioner a. Upon receipt of the order of reference, the commissioner shall set a time and place for the first meeting of parties or their counsel; b. Notices shall be sent to parties or counsel; and c. Hearing is to be held within 10 calendar days after the date of order of reference. [Sec. 5, Rule 32] Note: The commissioner has the duty to proceed with reasonable diligence. The parties may apply to the court for an order requiring the commissioner to expedite proceedings and submit his report. [Sec. 8, Rule 32] Effect of party’s failure to appear The commissioner may, in his discretion, a. Proceed ex parte; or b. Adjourn the proceedings to a future date giving notice to the absent party or his counsel. [Sec. 6, Rule 32]

Oath of commissioner Before entering upon his duties, the commissioner shall be sworn to a faithful and honest performance thereof. [Sec. 4, Rule 32]

a. Commissioner’s Report; Notice to Parties and Hearing on The Report

Powers of the commissioner Subject to the limitations and specifications in the order, the commissioner has and shall exercise the power to:

Report of the commissioner Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference.

Page 108 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The commissioner shall attach all exhibits, affidavits, depositions, papers and the transcripts, if any, of the testimonial evidence presented before him. [Sec. 9, Rule 32] Notice and objections Upon the filing of the report, the parties shall be 1. Notified by the clerk; and 2. Allowed 10 calendar days within which to object to the findings of the report, if they so desire [Sec. 10, Rule 32] Note: The objections based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions, shall not be considered by the court unless they were made before the commissioner. [Sec. 10, Rule 32] Hearing upon the report Upon the expiration of the 10-day period to file objections, the report shall be set for hearing. After such hearing, the court shall issue an order: 1. Adopting, modifying, or rejecting the report, in whole or in part, or 2. Recommitting it with instructions, or 3. Requiring the parties to present further evidence before the commissioner or the court. [Sec. 11, Rule 32]

16.

DEMURRER TO EVIDENCE

Demurrer to evidence After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. [Sec. 1, Rule 33]

a. Ground Insufficiency of evidence, that upon the facts and the law the plaintiff has shown no right to relief. [Sec. 1, Rule 33]

REMEDIAL LAW

b. Effect of Denial If the demurrer is denied, the defendant shall have the right to present his evidence. [Sec. 1, Rule 33] The order denying the demurrer to evidence shall not be the subject of an appeal or petition for certiorari, prohibition or mandamus before judgment. [Sec. 2, Rule 33] Note: The remedy then is to proceed to trial, and if the defendant loses, to appeal the judgment and include in the assigned errors, the denial of the demurrer to evidence.

c. Effect of Grant If the demurrer is granted, the case shall be dismissed. [Sec. 1, Rule 33] Note: The grant of a demurrer is considered an adjudication on the merits and the proper remedy would be to appeal the judgment. The appellate court should not remand the case for further proceedings but should render judgment on the basis of the evidence submitted by the plaintiff. [Consolidated Bank and Trust Corp. v. Del Monte Motor Works, Inc., G.R. No. 143338 (2005)]

d. Waiver of Right to Present Evidence If the order granting the demurrer is reversed on appeal, the defendant is deemed to have waived his right to present evidence. [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No. 148246 (2007)]

e. Action on Evidence

Demurrer

to

A demurrer to evidence shall be subject to the provisions of Rule 15. [Sec. 2, Rule 33] Being subject to the provisions of Rule 15, it follows that a demurrer to evidence is

Page 109 of 525

U.P. LAW BOC

CIVIL PROCEDURE

considered an allowable litigious motion. Rule 15 requires that there must be proof of service to the other party who shall have 5 calendar days to file an opposition. The court shall then resolve the motion within 15 calendar days from the receipt of such opposition.

f. Distinguish: Demurrer to Evidence in a Civil Case and Demurrer to Evidence in a Criminal Case Demurrer in CIVIL CASE Anchored upon the failure of the plaintiff to show that he is entitled to relief, upon the facts and the law. [Sec. 1, Rule 33]

Demurrer in CRIMINAL CASE Predicated upon prosecution’s insufficiency of evidence. [Sec. 23, Rule 119] May be filed with or without leave of court [Sec. 23, Rule 119] If the defense filed the demurrer with leave of court, the defense may present evidence upon denial of demurrer.

If the demurrer is denied, the defendant does not lose his right to present his evidence.

When without leave of court and the demurrer is denied, the defense is deemed to have waived the right to present evidence and thus submits the case for judgment on the basis of evidence offered by the prosecution.

If the demurrer is granted, the plaintiff may appeal and if the dismissal is reversed, the defendant is deemed to have waived his right to present his evidence.

REMEDIAL LAW

No appeal is allowed when a demurrer is granted because the dismissal is deemed an acquittal. [People v. Tan, G.R. No. 167526 (2010)]

It is the defendant who invokes demurrer by moving for the dismissal of the case.

The court may, on its own initiative, may dismiss the action after giving the prosecution an The court does not do opportunity to be so on its own heard. initiative. [Riano 498, Criminal Procedure, 2016 Ed.]

17. JUDGMENTS AND FINAL ORDERS Judgments in general The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties, or other matters submitted to it in an action or proceeding. [Macahilig v. Heirs of Magalit, G.R. No. 141423 (2000)] Requisites of a valid judgment 1. Court or tribunal must be clothed with authority to hear and determine the matter before it. [Acosta v. COMELEC, G.R. No. 131488 (1998)] 2. Court must have jurisdiction over the parties and the subject matter 3. Parties must have been given an opportunity to adduce evidence on their behalf. [Acosta v. COMELEC, G.R. No. 131488 (1998)] 4. Evidence must have been considered by the tribunal in deciding the case. [Acosta v. COMELEC, G.R. No. 131488 (1998)] 5. Judgment must be in writing, personally and directly prepared by the judge. [Corpus v. Sandiganbayan, G.R. No. 162214 (2004)]

Page 110 of 525

U.P. LAW BOC

CIVIL PROCEDURE

6. Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Sec. 1, Rule 36; Sec. 14, Art VIII, 1987 Constitution] KINDS OF JUDGMENT 1. Judgment by compromise – Rendered on the basis of a compromise agreement entered into between the parties to the action. [1 Riano 606, 2014 Bantam Ed., Diamond Builders Conglomeration v. Country Bankers Corp., G.R. No. 171820 (2007)]. Once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executory [1 Riano 607, 2014 Bantam Ed.] 2. Judgment by confession (cognovit actionem) – Rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. [1 Riano 609, 2014 Bantam Ed., see also PNB v. Manila Oil, G.R. No. 18103 (1922)] 3. Judgment upon the merits – Rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is “on the merits” when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts. 4. Clarificatory judgment – Rendered where the previous judgment is ambiguous and difficult to comply with. [1 Regalado 417, 2010 Ed., citing Almendras v. Del Rosario, G.R. No. L-20158 (1968)] 5. Judgment nunc pro tunc – Literally, “now for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records [Lichauco v. Tan Pho, G.R. No. 19512 (1923)]. It can only be issued when the thing ordered has previously been made, but by inadvertence has not been entered. [Vasquez v. CA, G.R. No. 144882 (2005)] 6. Judgment sin perjuicio – Traditionally understood to be a brief judgment containing only the dispositive portion. [Director of Lands v. Sanz, G.R. No. 21183 (1923)]

REMEDIAL LAW

7. Conditional Judgment – One whose effectivity depends upon the occurrence or non-occurrence of an event; generally void because of the absence of a disposition. [Cu- Unjieng v. Mabalacat Sugar Co., G.R. No. 45351 (1940)] 8. Several Judgments – Rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others [Sec. 4, Rule 36]. A several judgment is proper where the liability of each party is clearly separable and distinct from that of his coparties such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the others. In actions against solidary debtors, a several judgment is not proper [1 Regalado 424, 2010 Ed.]. 9. Separate Judgment – Rendered to dispose of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Sec. 5, Rule 36] 10. Memorandum Decision – Rendered by an appellate court, and incorporates by reference the findings of fact or the conclusions of law contained in the decision, order or ruling under review. [1 Riano 581, 2014 Bantam Ed.] 11. Declaratory Judgment – Rendered in a special civil action for declaratory relief. [Rule 63] 12. Foreign Judgment – Rendered by a tribunal of a foreign country. [Sec 48, Rule 39]

a. Judgment After Pre-trial When the court includes in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, judgment shall be rendered within 90 calendar days from termination of pre-trial. [Sec. 10, Rule 18]

Page 111 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The court may order such motu proprio or upon motion of any party and upon a showing that: a. There be no more controverted facts, b. No more genuine issue as to any material fact, c. There be an absence of any issue, or d. Should the answer fail to tender an issue. [Sec. 10, Rule 18]

b. Judgment Without Trial When trial is unnecessary: 1. Judgment on the Pleadings [Rule 34] 2. Summary Judgment [Rule 35] 3. Upon compromise or amicable settlement, either during pre-trial or during trial [Rule 18; Art. 2028, Civil Code] 4. Dismissal with prejudice [Sec. 13, Rule 15; Secs. 3 and 5, Rule 17] 5. Under the Rules on Summary Procedure 6. When there is an agreed statement of facts [Sec. 7, Rule 30]

REMEDIAL LAW

From the reference to Rule 15, it follows that a motion for a judgment on the pleadings is considered an allowable litigious motion. As such, there must be proof of service to the other party who shall have 5 calendar days to file an opposition. From receipt of such, the court shall have 15 calendar days to resolve the motion. Note: Any action of the court on a motion for judgment on the pleadings shall not be subject of an appeal or petition for certiorari, prohibition or mandamus. [Sec. 2, Rule 34] Judgment on the pleadings is not proper in the ff. cases: a. Declaration of Nullity of Marriage; b. Annulment of marriage; and c. Legal Separation. Note: In such cases, the material facts alleged in the complaint shall always be proved. [Sec. 1, Rule 34]

d. Summary Judgments

c. Judgment on The Pleadings When a judgment on the pleadings may be availed of The court may, motu proprio or on motion of that party, direct judgment on such pleading when the answer: a. Fails to tender an issue, or b. Admits the material allegations of the adverse party’s pleading. [Sec. 1 and 2, Rule 34] Note: The concept will not apply when no answer is filed. It will come into operation when an answer is served and filed but the same fails to tender an issue, or admits the material allegations of the adverse party’s pleading. [1 Riano 609, 2014 Bantam Ed.] When no answer is filed, the remedy is to move that the defendant be declared in default. [Sec. 3, Rule 9] When availed of by motion of a party The motion shall be subject to the provisions of Rule 15. [Sec. 2, Rule 34]

Definition A judgment which a court may render before trial, but after both parties have pleaded upon application by one party supported by affidavits, depositions, or other documents, with notice upon the adverse party who may file an opposition supported also by affidavits, depositions or other documents, should the court find after summarily hearing both parties with their respective proofs that there exists no genuine issue between them. [2 Herrera 118, 2007 Ed., citing Evangelista v. Mercator Financing Corporation, G.R. No. 148864 (2003)] Summary Judgment is proper when it appears to the court that a. There exists no genuine issue as to any material fact, except as to the amount of damages, and b. The moving party is entitled to judgment as a matter of law. Genuine issue - an issue of fact which calls for the presentation of evidence as distinguished

Page 112 of 525

U.P. LAW BOC

from a sham, fictitious, contrived, or false claim [Philippine Bank of Communications v. Go, G.R. No. 175514 (2011)] Test: Whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, that there is no defense to the action, or the claim is clearly meritorious. [Estrada v. Consolacion, G.R. No. L- 40948 (1976)] i. For the Claimant; Defendant

REMEDIAL LAW

CIVIL PROCEDURE

For

the

When filed 1. If sought by the claimant – only after the answer is served; [Sec. 1, Rule 35] 2. If sought by the defendant – at any time [Sec. 2, Rule 35] Procedure 1. Movant files a motion for summary judgment, citing the supporting affidavits, depositions, or admissions, and the specific law relied upon. 2. The adverse party may file a comment and serve opposing affidavits, depositions, admissions within 5 calendar days from receipt of the motion. 3. A hearing will be conducted only if ordered by the court - Note: There is no longer a mandatory hearing for the motion due to the amendment of the rules. This is also consistent with the amendments to Rule 15. 4. Court renders summary judgment. Note: Any action of the court on a motion for summary judgment shall not be subject of an appeal or petition for certiorari, prohibition or mandamus. [Sec. 3, Rule 35] Note: Damages must still be proven even if not denied. Note language of Sec. 3, Rule 35, “except as to the amount of damages.”

b. Depositions c. Admissions [Secs. 1-2, Rule 35] ii. When the Adjudicated

Case

Not

Fully

Partial summary judgment – applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established. Duty of the court [Sec. 4, Rule 35] If on motion for summary judgment, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court may: 1. Ascertain which material facts exist without substantial controversy and the extent to which the amount of damages and other reliefs is not in controversy by a. Examining the pleadings and evidence before it; and b. Interrogating counsel 2. Make an order which: a. Specifies which facts ascertained are deemed established, and b. Directs further proceedings as are just 3. Conduct trial on the controverted facts Effect: A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA, G.R. No. L-49017 (1983)] iii. Affidavits and Attachments Form 1. Made on personal knowledge 2. Setting forth such facts as would be admissible in evidence 3. Showing affirmatively that the affiant is competent to testify to the matters stated therein 4. Certified true copies of all papers or parts thereof referenced in the affidavit shall be attached or served with the affidavit [Sec. 5, Rule 35]

Bases for summary judgment a. Affidavits Page 113 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Affidavits in bad faith [Sec. 6, Rule 35] – those presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay. Effect of affidavits in bad faith The court: 1. Shall order the offending party or counsel to pay the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur; and 2. May, after hearing, adjudge the offending party or counsel guilty of contempt. [Sec. 6, Rule 35]

e. Distinguish: Judgment on the Pleadings and Summary Judgments Summary judgment [Rule 35]

Judgment on the pleadings [Rule 34] Absence of a factual Involves an issue, issue in the case but the issue is not because the answer genuine. tenders no issue at all. Motion for summary Motion for judgment judgment may be on the pleadings is filed by either the filed by a claiming claiming or the party like a plaintiff or defending party. a counterclaimant. [Secs. 1-2] [Sec. 1] May be ordered May be ordered motu motu proprio by the proprio by the court. court. [Sec. 10, Rule [Sec. 10, Rule 18] 18] Based on the Based on the pleadings, affidavits, pleadings alone depositions and [Sec. 1] admissions [Sec. 3] [1 Riano 614-615, 2014 Bantam Ed.]

REMEDIAL LAW

i. Contents of a Judgment Form of judgment or final order determining the merits of the case a. In writing, b. Personally and directly prepared by the judge, c. Stating clearly & distinctly the facts and the law on which it is based, d. Signed by the judge, and e. Filed with the clerk of court. [Sec. 1, Rule 36] Parts of a judgment a. The opinion of the court – contains the findings of fact and conclusions of law b. The disposition of the case – the final and actual disposition of the rights litigated (the dispositive part) c. Signature of the judge [2 Herrera 155, 2007 Ed.] Parts of a decision In general, the essential parts of a good decision consist of the following: a. Statement of the case, b. Statement of facts, c. Issues or assignment of errors, d. Court ruling, in which each issue is, as a rule, separately considered and resolved, and e. Dispositive portion. The ponente may also opt to include an introduction or a prologue as well as an epilogue, especially in cases in which controversial or novel issues are involved. [Velarde v. Social Justice Society, G.R. No. 159357 (2004)] Distinction between judgment and the opinion of the court a. Judgment of the court b. Opinion of the court - The informal expression of the views of the court and cannot prevail against its final order or decision. They are not the judgment itself. Note: While the two may be combined in one instrument, the opinion forms no part of the judgment.

Page 114 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

c. Findings and conclusion of a court While they may constitute its decision and amount to a rendition of a judgment, they are not the judgment itself. They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Casilan v. Salcedo, G.R. No. L-23247 (1969), citing 1 Freeman on Judgments 6, 5th Ed.]

Period for rendition a. All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision. b. Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts. [Sec. 15, Art. VIII, Constitution,]

Conflict between disposition and opinion of the court General rule: The general rule is that where there is conflict between the dispositive portion or the fallo and the body of the decision, the fallo controls. Note: This Rule applies only when the dispositive part is definite, clear, and unequivocal. [Union Bank v. Pacific Equipment Corporation, G.R. No. 172053 (2008)]

A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court. [Sec. 15, Art. VIII, Constitution]

Exception: Where the inevitable conclusion from the body of the decision is that there was a mistake in the dispositive portion, the body of the decision will prevail. [Rosales v. CA, G.R. No. 137566 (2001)] See again “sin perjuicio” judgments above

f. Rendition of Judgments and Final Orders Rendition of judgment Pronouncement of the judgment in open court does not constitute rendition of judgment. It is the filing of the signed decision with the COC that constitutes rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the COC. [Ago v. CA, G.R. No. L-17898 (1962)] Promulgation of judgment Promulgation is the process by which a decision is published, officially announced, made known to the public or delivered to the COC for filing, coupled with notice to the parties or their counsel. [2 Herrera 151, 2007 Ed., Neria v. Commissioner of Immigration, G.R. No. L-24800 (1968)]

An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse. Without an extension, a delay in the disposition of cases is tantamount to gross inefficiency on the part of the judge. [Arap v. Mustafa, SCC-01-7 (2002)] i. Entry of Judgment and Final Order Entry of judgment The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [1 Riano 615, 2014 Bantam Ed.] When entered: If no appeal, or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments [Sec. 2, Rule 36] Note: The date of finality of the judgment or final order shall be deemed to be the date of its entry. [Sec. 2, Rule 36] This is regardless of the date when the physical act of entry was done. [1 Riano 615, 2014 Bantam Ed.] Contents of record in the book of entries: a. Dispositive part of the judgment or final order b. Signature of the clerk; and

Page 115 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. Certification that such judgment or final order has become final and executory. [Sec. 2, Rule 36] Final judgment rule General rule: Once a decision or order becomes final and executory, it is removed from the power or jurisdiction of the court which rendered it to further alter or amend it. [Siliman University v. Fontelo-Paalan, G.R. No. 170948 (2007)] Under the doctrine of immutability of judgments, a judgment that has attained finality can no longer be disturbed. The reason is two-fold: a. To avoid delay in the administration of justice, and to make orderly the discharge of judicial business; and b. To put an end to judicial controversies at the expense of occasional errors. [1 Riano 538-539, 2011 Ed.] Exceptions: a. Correction of clerical errors [Filipinas Palmoil Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)] b. Nunc pro tunc entries [Filipinas Palmoil Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)] c. Whenever circumstances transpire after finality of the decision, rendering its execution unjust and inequitable [Apo Fruits Corp. v. Land Bank of the Phils., G.R. No. 164195 (2010)] d. In cases of special and exceptional nature, when it is necessary in the interest of justice to direct modification in order to harmonize the disposition with the prevailing circumstances [Industrial Timber Corp. v. Ababon, G.R. No.164518 (2006)] e. In case of void judgments [FGU Insurance v. RTC Makati, G.R. No. 161282 (2011)] f. Where there is a strong showing that a grave injustice would result from an application of the Rules [Almuete v. People, G.R. No. 179611 (2013)] g. When there are grounds for annulment of judgment or petition for relief [Gochan v. Mancao, G.R. No. 182314 (2013)]

REMEDIAL LAW

Amended/clarified Supplemental judgment decision An entirely new Does not take the decision and place of or extinguish supersedes the the original original judgment. judgment. Court makes a thorough study of the original judgment and renders the amended and Serves to add to the clarified judgment original judgment. only after considering all the factual and legal issues. [1 Regalado 418, 2010 Ed.]

18. POST-JUDGMENT REMEDIES Remedies before finality of judgment 1. Motion for new trial [Rule 37] 2. Motion for reconsideration [Rule 37] 3. Appeal [Rules 40-45] [1 Riano 60, 2011 Ed.]

a. Motion for New Reconsideration

Trial

or

Note: The motion for reconsideration (MR) under Rule 37 is directed against a judgment or final order. It does not refer to one for interlocutory orders, which often precedes a petition for certiorari under Rule 65. [1 Riano 558, 2011 Ed.] These motions are prohibited in cases covered by the Rule on Summary Procedure [Sec. 19] and those falling under the Rules of Procedure on Small Claims Cases [Sec. 16].

Grounds [Sec. 1, Rule 37]

Page 116 of 525

MNT 1. Fraud, accident, mistake, or excusable

MR 1. Damages awarded are excessive

U.P. LAW BOC

negligence (FAME) 2. Newly discovered evidence

Second MNT/MR [Sec. 5, Rule 37]

Effect if granted

A 2nd MNT may be allowed if based on a ground not existing or available when the 1st MNT was made. The original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence shall be used in the new trial without retaking the same. [Sec. 6, Rule 37]

CIVIL PROCEDURE

2. That the evidence is insufficient to justify the decision or final order 3. That the decision or final order is contrary to law A 2nd MR of a judgment or final order is not allowed. Note: This prohibition does not apply to interlocutory orders.

(b) By reason of which such aggrieved party has probably been impaired in his rights. 2. Newly discovered evidence (a) It was discovered after the trial, or (b) It could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (c) The evidence is of such weight that if admitted, would probably alter the result of the action; and (d) It must be material and not merely collateral, cumulative, or corroborative. [Sec. 1, Rule 37] [FAME] Ground

Fraud

The court may amend the judgment or final order accordingly if the ground relied upon prevails. [Sec. 3, Rule 37]

REMEDIAL LAW

Mistake

Definition The fraud must be extrinsic. • Any fraudulent scheme executed outside of the trial by the prevailing party against the losing party, who, because of such fraud, is prevented from presenting his side of the case, or judgment was procured without fair submission of the controversy. It may either be a mistake of fact or mistake of law made in good faith by the defendant who was misled in the case. It must be one that is imputable to the party.

Excusable negligence

i. Grounds Grounds for Motion for New Trial (MNT) One or more of the following causes materially affecting the substantial rights of said party: 1. Fraud, accident, mistake or excusable negligence (FAME) (a) Ordinary prudence could not have guarded against, and

Note: The negligence of counsel is binding on the client except if it was so great as to prejudice the client and prevent fair presentation of the case. [1 Regalado, 2010 Ed.] Note: A motion for reopening the trial is different from a motion for new trial—the latter can only be done after promulgation of judgment whereas the former may properly be presented after either or both parties have

Page 117 of 525

U.P. LAW BOC

CIVIL PROCEDURE

formally offered and closed their evidence before judgment. [1 Regalado 432, 2010 Ed.] Grounds for Motion for Reconsideration 1. Damages awarded are excessive; 2. Evidence is insufficient to justify the decision or final order; or 3. Decision or final order is contrary to law. [Sec. 1, Rule 37] Note: If the MR is based on the same grounds as that for a MNT, it is considered a MNT. [Rodriguez v. Rovira, G.R. No. 45252 (1936)] ii. When to File; Form Within the period for taking an appeal [Sec. 1, Rule 37] See Period of appeal below. Note: An MNT and MR may only be availed of by a party to the proceeding. [Alaban vs CA, G.R. No. 156021 (2005)] Contents The motion shall be: a. Made in writing, b. Stating the ground or grounds therefor, and c. A written notice of which shall be served by the movant on the adverse party. An MNT shall be proved in the manner provided for proof of motions. a. A motion based on FAME - supported by affidavits of merits which may be rebutted by affidavits. b. A motion based on newly-discovered evidence - supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. When MNT based on FAME accompanied by affidavit of merits General rule: Denied

not

Exceptions: 1. The court has no jurisdiction over the defendant/ subject matter, so the judgment is null and void

REMEDIAL LAW

2. The judgment is defective as where a judgment by default was rendered even before the reglementary period to answer had expired. 3. The defendant was deprived of his day in court as when no notice of hearing was furnished him [1 Regalado 435, 2010 Ed.]

A MR shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. Note: A pro forma MNT/MR shall not toll the reglementary period of appeal. [Sec. 2, Rule 37] When MNT considered pro forma 1. Based on the same ground raised in preceding MNT/MR already denied; 2. Contains the same arguments and manner of discussion in the prior opposition to a motion to dismiss which was granted; 3. The new ground alleged in the 2nd MNT was available and could have been alleged in the first MNT which was denied; 4. Based on the ground of insufficiency of evidence/that the judgment is contrary to law, but does not specify the supposed defects in judgment; or 5. Based on FAME but does not specify the facts constituting these grounds and/or is not accompanied by an affidavit of merits. [1 Regalado 193, 2010 Ed.] Single-motion rule [Sec. 5, Rule 37] Motion for New Trial An MNT shall include all grounds then available and those not so included shall be deemed waived. • A 2nd MNT, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending.

Page 118 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Motion for Reconsideration A 2nd motion for reconsideration of a judgment or final order is not allowed. Court action The trial court may: 1. (MNT) Set aside the judgment or final order and grant a new trial, upon such terms as may be just 2. (MR) Amend such judgment or final order accordingly if the court finds that a. Excessive damages have been awarded or that, or b. Judgment or final order is contrary to the evidence or law 3. Deny the motion [Sec. 3, Rule 37] Court resolution The motion shall be resolved within 30 days from the time it is submitted for resolution. [Sec. 4, Rule 37] Note: The 30-day period to resolve the motion is mandatory. [Gonzales v. Bantolo, A.M. No. RTJ-06-1993 (2006)]

REMEDIAL LAW

The court may amend such judgment or final order. [Sec. 3, Rule 37] Partial grant of new trial or reconsideration If the grounds for a motion under this Rule appear to the court to affect: 1. The issues as to only a part, or 2. Less than all of the matter in controversy, or 3. Only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. [Sec. 7, Rule 37] Partial new trial; effect When less than all of the issues are ordered retried, the court may either 1. Enter a judgment or final order as to the rest, or 2. Stay the enforcement of such judgment or final order until after the new trial. [Sec. 8, Rule 37] v. Remedy When Motion is Denied, Fresh 15-day Period Rule

iii. Denial of the Motion; Effect An order denying a MNT or MR is not appealable. The remedy is an appeal from the judgment or final order. [Sec 9, Rule 37] Note: The order denying the motion may itself be assailed by a petition for certiorari under Rule 65. [1 Regalado 437, 2010 Ed.]

15-day period to file the notice of appeal The SC has allowed a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a MNT/MR. - The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. [Neypes v. CA, G.R. No. 141524 (2005)]

iv. Grant of the Motion; Effect Grant of MNT The original judgment or final order shall be vacated, and the action shall stand for trial de novo; Note: The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. [Sec. 6, Rule 37] Grant of MR

Note: What is appealed is the judgment itself, not the order denying the MNT/MR. [Sec. 9, Rule 37]

b. Appeals in General Nature a. The right to appeal is not a constitutional, natural, or inherent right. b. It is a statutory privilege and of statutory origin and is available only if granted or if

Page 119 of 525

U.P. LAW BOC

CIVIL PROCEDURE

so provided by statute. [Yu vs SamsonTatad, 642 SCRA 421 (2011)] c. As a rule, the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory, but jurisdictional. A failure to comply with the rules of appeal will render the judgment final and executory. [Landbank of the Philippines vs CA, G.R. No. 221636 (2016)] Appeal vs. Action to review An appeal is different from an action to review. In an appeal, the court by which the first determination was made is not a party to the proceeding for review whereas in an action for review, the court which made the determination is a party to the proceeding for review [1 Regalado 556, 2010 Ed.] Harmless error rule in appellate decisions No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. [Sec. 6, Rule 51] The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. [Sec. 6, Rule 51] We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. [People v. Teehankee, G.R. Nos. 111206-08 (1995)] i. Judgments and Subject to Appeal

Final

Orders

REMEDIAL LAW

An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the ROC to be appealable [Sec. 1, Rule 41] Note: Not every judgment or final order is appealable. An example of judgments or final orders which do not completely dispose of a case and are, hence, not appealable are several and separate judgments provided for under Secs. 4 and 5 of Rule 36. ii. Matters Not Appealable 1. An order denying a petition for relief or any similar motion seeking relief from judgment; 2. An interlocutory order; 3. An order disallowing or dismissing an appeal; 4. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. An order of execution; 6. A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and 7. An order dismissing an action without prejudice. [Sec. 1, Rule 41, as amended by A.M. No. 077-12-SC] Final order v. Interlocutory order Final Order Interlocutory Order One that finally One that determines disposes of a case, incidental matters leaving nothing more that does not touch to be done by the on the merits of the Court in respect case or put an end to thereto. the proceedings. [Investments, Inc. v. [Silverio Jr. v. CA, G.R. No. L- Filipino Business 60036 (1987)] Consultants, Inc.,

Page 120 of 525

U.P. LAW BOC

CIVIL PROCEDURE

G.R. No. (2005)]

143312

REMEDIAL LAW

4. Petition for review on certiorari – Rule 45

Proper remedy to question an improvident interlocutory order is Subject to appeal a petition for [Investments, Inc. v. certiorari under Rule CA, G.R. No. L65 [Silverio Jr. v. 60036 (1987)] Filipino Business Consultants, Inc., G.R. No. 143312 (2005)] Not considered Must express clearly decisions or and distinctly the judgments within the facts and the law on constitutional which it is based. definition [1 Riano [Sec. 14, Art. VIII, 581, 2014 Bantam Constitution] Ed., citing Amargo v. CA, G.R. No. [Pahila-Garrido v Tortogo, G.R. No. 156358 (2011)] Effect of an appeal from an interlocutory order If an order appealed from is interlocutory, the appellate court can dismiss the appeal even if the appellee did not file any objection. [1 Regalado 552, 2010 Ed.] iii. Remedy Against Judgments and Orders Which Are Not Appealable In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65. [Sec. 1, Rule 41] iv. Modes of Appeal 1. Ordinary appeal – Rule 40 and 41 a. Notice of appeal b. Record on appeal 2. Petition for review – Rule 42 3. Appeal from quasi-judicial agencies (QJAs) to the CA – Rule 43 Page 121 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

Modes of Appeal

Rule

Mode of appeal

How made

Ordinary Appeal Rule 41

Petition for Review Rule 42

Case decided by RTC in exercise of original jurisdiction. [Sec. 2(a)]

Case decided by RTC in exercise of appellate jurisdiction. [Sec. 2(b), Rule 41]

Notice of appeal/Record on appeal with the CA [Sec. 2(a)]

Petition for review with the CA [Sec. 2(b), Rule 41]

Filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party If required, the record-on appeal shall be filed and served in like manner [Sec. 2]

File a verified petition for review with the CA, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of PHP 500.00 for costs, and furnishing the RTC and the adverse party with a copy of the petition [Sec. 1]

Appeals from QJAs to the CA Rule 43 Awards, judgments, final orders or resolutions of or authorized by any QJA in the exercise of its quasi-judicial functions. [Sec. 1]

Petition for Review by Certiorari Rule 45 Case where only questions of law are raised or involved. [Sec. 2(c), Rule 41]

EXCEPT: Judgments or final orders issued under the Labor Code. [Sec. 2]

Appeal by certiorari from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law. [Sec. 1]

Verified petition for review with the CA [Sec. 5]

Petition for review on certiorari with the SC [Sec. 2(c), Rule 41]

File a verified petition for review in 7 legible copies with the CA, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the CA shall be indicated as such by the petitioner.

File verified petition for review on certiorari with the SC [Sec. 1]

Upon the filing of the petition, the petitioner shall pay to the COC of the CA the docketing and other lawful fees and deposit the sum of PHP 500.00 for costs

Page 122 of 525

Petitioner shall pay the corresponding docket and other lawful fees to the COC of the SC and deposit the amount of PHP 500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition [Sec. 3]

U.P. LAW BOC

Within 15 days from notice of the judgment or final order appealed from

Period of appeal

Where a record of appeal is required, file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order [Sec. 3]

REMEDIAL LAW

CIVIL PROCEDURE

Within 15 days from notice of 1. The decision sought to be reviewed or 2. The denial of petitioner’s MNT or MR filed in due time after judgment [Sec. 1]

v. Issues to Be Raised on Appeal Issues Issues that have not been raised before the lower courts cannot be raised on the first time on appeal. [Spouses Erorita vs Spouses Dumlao, G.R. No. 195477 (2016)] Errors General Rule: The appellate court shall consider no error unless stated in the assignment of errors. [Sec. 8, Rule 51] Exceptions: The court may consider an error not raised on appeal provided that it is an error: 1. That affects the jurisdiction over the subject matter, 2. That affects validity of the judgment appealed from, 3. Which affects the validity of the proceedings, 4. That is closely related to or dependent to an assigned error, and properly argued in brief,

[Sec.5] Within 15 days from: 1. Notice of the award, judgment, final order or resolution, or 2. The date of i. its last publication, if publication is required by law for its effectivity, or ii. the denial of petitioner’s MNT or MR duly filed in accordance with the governing law of the court or agency a quo [Sec. 4]

Within 15 days from notice of 1. The judgment or final order or resolution appealed from, or 2. The denial of the petitioner’s MNT or MR filed in due time after notice of the judgment [Sec. 2]

5. That is a plain clerical error, 6. Of which consideration is necessary to arrive at a just decision and complete resolution of the case or serve the interests of justice, or 7. Raised in the trial court and are matters of record having such bearing on the issue submitted which the parties failed to raise or which the lower court. [1 Riano 529-530, 2016 Ed.] The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. Bermudez-Lorino, G.R. No. 160258 (2005)] vi. Period of Appeal The fresh period rule shall apply to: 1. Rule 40 governing appeals from the MTCs to the RTCs 2. Rule 41 governing appeals from the RTCs to CA

Page 123 of 525

U.P. LAW BOC

CIVIL PROCEDURE

3. Rule 42 on petitions for review from the RTCs to the CA 4. Rule 43 on appeals from quasi-judicial agencies to the CA, and 5. Rule 45 governing appeals by certiorari to the SC

Note: The fresh period rule gives the appellant a fresh 15-day period within which to make his appeal from the order denying the MNT, MR, or any final order or resolution. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the MNT, MR (whether full or partial) or any final order or resolution [Neypes v. CA, G.R. No. 141524 (2005)] vii. Perfection of Appeal Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional [Balgami v. CA, G.R. No. 131287 (2004)] Effect of failure to perfect appeal a. Defeats a party’s right to appeal, and b. Precludes appellate court from acquiring jurisdiction. [1 Riano 20, 2011 Ed.] Dismissal, Reinstatement, And Withdrawal of Appeal Grounds for dismissal of appeal 1. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the ROC 2. Failure to file the notice of appeal or the record on appeal within the period prescribed by the ROC 3. Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 4, Rule 41 4. Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec. 4 of Rule 44 5. Failure of the appellant to serve and file the required number of copies of his brief or

REMEDIAL LAW

memorandum within the time provided by the ROC 6. Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec. 13(a), (c), (d) and (f) of Rule 44 7. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; 8. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause, and 9. The fact that order or judgment appealed from is not appealable [Sec. 1, Rule 50] 10. Appeal under Rule 41 taken from the RTC to the CA raising only questions of law 11. Appeal by notice of appeal instead of by petition for review from the appellate judgment of a RTC [Sec. 2, Rule 50] Other grounds 1. By agreement of the parties (i.e. amicable settlement) 2. Where appealed case has become moot or academic 3. Where appeal is frivolous or dilatory [1 Regalado 644-645, 2010 Ed.] Withdrawal of appeal 1. An appeal may be with­drawn as a matter of right at any time before the filing of the appellee’s brief. 2. Thereafter, the withdrawal may be allowed in the discretion of the court. [Sec. 3, Rule 50] Dismissal by the SC The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: 1. Failure to take the appeal within the reglementary period 2. Lack of merit in the petition 3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs

Page 124 of 525

U.P. LAW BOC

CIVIL PROCEDURE

4. Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition 5. Failure to comply with any circular, directive or order of the SC without justifiable cause 6. Error in the choice or mode of appeal, and 7. The fact that the case is not appealable to the SC. [Sec. 5, Rule 56]

viii. Appeal from Judgments or Final Orders of The Metropolitan Trial Courts/ Municipal Trial Courts/ Municipal Trial Courts In Cities/ Municipal Circuit Trial Courts Procedure [Rule 40] File a notice of appeal with the court that rendered the judgment or final order appealed from [Sec. 3] Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees [Sec. 5] ↓ Within 15 days from the perfection of the appeal, the COC or the branch COC of the lower court shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper RTC. A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties [Sec. 6] ↓ Upon receipt of the complete record or the record on appeal, the COC of the RTC shall notify the parties of such fact [Sec. 7(a)] ↓ Within 15 days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the

REMEDIAL LAW

adverse party. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal [Sec. 7(b)] ↓ Within 15 days from receipt of the appellant’s memorandum, the appellee may file his memorandum [Sec. 7(c)] ↓ Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The RTC shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed [Sec. 7(d)] Where taken To the RTC exercising jurisdiction over the area to which the former pertains. [Sec. 1, Rule 40] When taken 1. Within 15 days after notice to the appellant of the judgment or final order appealed from. 2. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. 3. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. [Sec. 2, Rule 40] Extension of period to appeal Period to appeal may be extended but such extension is addressed to the sound discretion of the court. [Socco v. Garcia, G.R. No. L18231 (1962)]

Page 125 of 525

U.P. LAW BOC

CIVIL PROCEDURE

How taken By notice of appeal 1. File a notice of appeal with the trial court that rendered the judgment or final order appealed from • indicating the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. 2. Copies of the notice of appeal shall be served on the adverse party. [Sec. 3, Rule 40] 3. Pay to the COC which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. [Sec. 5, Rule 40] By record on appeal 1. File a notice of appeal [Sec. 2, Rule 41] following the steps above. 2. The form and contents of the record on appeal shall be as provided in Sec. 6, Rule 41. (see appeals from judgments or final orders of the RTC) 3. Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party. [Sec. 3, Rule 40] 4. Pay to the COC which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. [Sec. 5, Rule 40] Note: Record on appeal shall be required only in: 1. Special proceedings 2. In such other cases of multiple or separate appeals [Sec. 2, Rule 41] Perfection of appeal The perfection of the appeal and the effect thereof shall be governed by the provisions of Sec. 9, Rule 41. [Sec. 4, Rule 40] See appeals from judgments or final orders of the RTC.

REMEDIAL LAW

Two Scenarios 1. If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits a. The RTC may affirm or reverse it, as the case may be b. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the RTC, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it c. In case of reversal, the case shall be remanded for further proceedings 2. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with Sec. 7, Rule 40, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice [Sec. 8, Rule 40] Applicability of Rule 41 The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of Rule 40. [Sec. 9, Rule 40] ix. Appeal from Judgments or Final Orders of The Regional Trial Courts RULE 41 Appeal from the RTC to the CA via Rule 41 presupposes that 1. The RTC rendered the judgment or final order in the civil action or special proceeding in the exercise of its original jurisdiction; and 2. That the appeal is taken to the CA on: a. Questions of fact or b. Mixed questions of fact and law [1 Regalado 555, 2010 Ed.]

Appeal from order dismissing a case without trial; lack of jurisdiction Page 126 of 525

U.P. LAW BOC

CIVIL PROCEDURE

NOTICE OF APPEAL Contents 1. Parties to the appeal 2. Judgment or final order or part thereof appealed from 3. Court to which the appeal is being taken, and 4. Material dates showing the timeliness of the appeal [Sec. 5, Rule 41] RECORD ON APPEAL General Rule: No record on appeal shall be required Exception: In special proceedings and other cases of multiple or separate appeals where the law or the ROC so require. • In such cases, the record on appeal shall be filed and served in like manner. [Sec. 2(a), Rule 41] Contents of the record on appeal 1. Full names of all the parties to the proceedings shall be stated in the caption of the record on appeal 2. The judgment or final order from which the appeal is taken and, 3. In chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, 4. Together with such data as will show that the appeal was perfected on time. [Sec. 6, Rule 41] Note: The requirement that the record on appeal must show on its face that the appeal was perfected on time is mandatory and jurisdictional that if not complied with, the appeal must be dismissed. [1 Regalado 563, 2010 Ed.] Exception: If the trial court issued an order to the effect that the appeal was seasonably perfected with the filing of the notice of appeal and the record on appeal within the reglementary period. [Pimentel v. CA, G.R. No. L-39684 (1975)]

REMEDIAL LAW

If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence taken upon the issue involved. 1. The reference shall specify the a. Documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and b. Testimonial evidence by the names of the corresponding witnesses 2. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. 3. Every record on appeal exceeding 20 pages must contain a subject index. [Sec. 6, Rule 41] Approval of the record on appeal 1. Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within 5 days from receipt of a copy thereof, the trial court may: a. Approve it as presented or upon its own motion, or b. At the instance of the appellee, may direct its amendment • by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. 2. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within 10 days from receipt thereof, shall: a. Redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and b. Submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. [Sec. 7, Rule 41]

Page 127 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Joint record on appeal Where both parties are appellants, they may file a joint record on appeal within 30 days from notice of judgment or final order, or that fixed by the court. [Secs. 3 and 8, Rule 41] Period to appeal 1. Within 15 days from notice of judgment or final order appealed from 2. Within 30 days from notice of judgment or final order where a record on appeal is required 3. Within 48 hours from notice of judgment or final order appealed from in habeas corpus cases [Sec. 3, Rule 41] Note: If a MNT/MR was properly filed but the motion was ultimately dismissed, a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing the motion is granted. [Neypes v. CA, G.R. No. 141524 (2005)] Reckoning point of reglementary period Period for filing the appeal should be counted from the date when the party’s counsel received a copy of the judgment or final order because that is the effective service of the decision. When a party is represented by counsel, service of process must be made on counsel, not on the party. [Fajardo v. CA, G.R. No. 140356 (2001); Sec. 2, Rule 13] Note: The mere filing and pendency of motion for extension to perfect appeal does not suspend the running of the reglementary period. [King v. Corro, G.R. No. L-23617 (1967)] Extension of period to appeal The period to appeal may be extended but such extension is addressed to the sound discretion of the court. [Gregorio v. CA, G.R. No. L-43511 (1976)] Note: If the trial court approves the record on appeal even if the period for the appeal has expired, this is tantamount to a valid order granting the extension prayed for by the appellant if any such motion has been filed

REMEDIAL LAW

[Berkenkotter v. CA, G.R. No. L-36629 (1973)] Conversely, dismissal constitutes a denial of the extension prayed for, in which case the only question that can arise is whether the trial court had gravely abused its discretion in denying such extension. [PVTA v. Delos Angeles, G.R. No. L-29736, (1974)] Pleadings to be filed 1. Appellant’s brief 2. Appellee's brief 3. Appellant’s reply brief Appellant’s brief It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellee. [Sec. 7, Rule 44] Note: Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA. Grounds for dismissal with respect to appellant’s brief: 1. Failure of the appellant to serve and file the required number of copies of his brief within the time provided by the ROC, or 2. Absence of specific assignment of errors in the appellant’s brief. [Sec. 1(e)-(f), Rule 50] Contents 1. Subject index 2. Assignment of errors 3. Statement of the Case 4. Statement of Facts 5. Statement of issues 6. Arguments 7. Relief 8. Copy of judgment or final order appealed from [Sec. 13, Rule 44] Appellee’s brief Within 45 days from receipt of the appellant’s brief, the appellee shall file with the court 7

Page 128 of 525

U.P. LAW BOC

CIVIL PROCEDURE

copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant. [Sec. 8, Rule 44] Note: Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA. Contents 1. Subject index 2. Statement of Facts or Counter-Statement of Facts 3. Argument [Sec. 14, Rule 44] Appellant’s reply brief Within 20 days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in his main brief. [Sec. 9, Rule 44] Extension of time for filing briefs: General rule: Not allowed Exception: Good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. [Sec. 12, Rule 44] Payment of docket fees 1. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. 2. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. [Sec. 4, Rule 41] Note: Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal. Subsequent payment of appellate docket fees does not cure the defect of the appeal because payment is a jurisdictional requirement. [Santander v Villanueva, G.R. No. L-6184 (1958)]

REMEDIAL LAW

Perfection of appeal 1. A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. 2. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. [Sec. 9, Rule 41] Note: An appellant who fails to perfect his appeal on time due to FAME may file for a petition for relief under Sec. 2, Rule 38. If his petition for relief is denied, he can file a petition under Rule 65, since the denial of a petition for relief is no longer appealable under Sec. 1 of Rule 41 [De Luna v. Palacio, G.R. No. L-26927 (1969)] Effect of perfected appeal 1. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. 2. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. [Sec. 9, Rule 41] Residual powers/jurisdiction of the RTC In either case, prior to the transmittal of the original record or the record on appeal, the court may 1. Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal 2. Approve compromises 3. Permit appeals of indigent litigants 4. Order execution pending appeal in accordance with Sec. 2 of Rule 39, and 5. Allow withdrawal of the appeal [Sec. 9, Rule 41] Note: There is no residual jurisdiction to speak of where no appeal or petition has even been

Page 129 of 525

U.P. LAW BOC

CIVIL PROCEDURE

filed. [Fernandez v. CA, G.R. No. 131094 (2005)] Duty of clerk upon perfection of appeal 1. Within 30 days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the COC of the lower court: a. To verify the correctness of the original record or the record on appeal and to make a certification of its correctness, b. To verify the completeness of the records that will be transmitted to the appellate court, c. If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and d. To transmit the records to the appellate court 2. If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their nontransmittal, and the steps taken or that could be taken to have them available. 3. The COC shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. [Sec. 10, Rule 41] Note: Even if the appeal has already been perfected but the records have not yet been transmitted to the appellate court, the trial court still has jurisdiction to set aside its order approving the record on appeal. [Cabungcal v. Fernandez, G.R. No. L-16520 (1964)] Dismissal of appeal Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu proprio or on motion dismiss the appeal for: 1. Having been taken out of time, or 2. Non-payment of the docket and other lawful fees within the reglementary period. [Sec. 13, Rule 41]

REMEDIAL LAW

RULE 42 Petition for review from the RTC to the CA Appeal via Rule 42 is proper when one appeals from a decision of the RTC in the exercise of its appellate jurisdiction. It may be taken on either questions of fact, questions of law, or on mixed questions of fact and law. [Macawiwili Gold Mining and Development Co., Inc. v. CA, G.R. No. 115104 (1998)] This mode of appeal is not a matter of right but is a matter of discretion on the part of the CA, on whether or not to entertain the appeal [1 Regalado 581, 2010 Ed.] Note: Since Rule 42 is a petition for the purpose of appeal and not petitions in original actions, lower courts/judges that rendered the judgment complained of are not impleaded as parties in the appeal. [1 Regalado 579, 2010 Ed.] How taken If a party desires to appeal from a decision of the RTC in its appellate jurisdiction: 1. File a verified petition for review with the CA a. Within 15 days from notice of judgment or final order, or b. Within 15 days from notice of denial of petitioner’s MNT or MR 2. Pay at the same time to the clerk of the CA the corresponding docket and other lawful fees, 3. Deposit PHP 500.00 for costs, and 4. Furnish the RTC and the adverse party with a copy of the petition. [Sec. 1, Rule 42] Period to appeal The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of the petitioner's MNT or MR filed in due time after judgment. [Sec. 1, Rule 42] Extension of period Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the

Page 130 of 525

U.P. LAW BOC

CIVIL PROCEDURE

CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Sec. 1, Rule 42] Form and contents 1. In 7 legible copies, with the original copy intended for the court being indicated as such by the petitioner • Note: Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA 2. Full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents 3. Specific material dates showing that it was filed on time 4. A concise statement of the a. Matters involved b. Issues raised c. Specification of errors of fact or law, or both, allegedly committed by the RTC, and d. Reasons or arguments relied upon for the allowance of the appeal 5. Clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the COC of the RTC, 6. The requisite number of plain copies thereof and of the pleadings and 7. Other material portions of the record as would support the allegations of the petition 8. Certification of non-forum shopping [Sec. 2, Rule 42] Effect of failure to comply Failure to comply with any of the following requirements shall be sufficient ground for dismissal: 1. Payment of docket and other lawful fees Note: In petitions for review under Rules 42, 43, and 45, the docket fee is paid in the appellate courts 2. Deposit for costs 3. Proof of service of petition 4. Contents of the documents which should accompany the petition

REMEDIAL LAW

[Sec. 3, Rule 42] Note: Failure to append the pleadings and material portions of the record does not justify the outright dismissal of the petition. There is substantial compliance when the pleadings were attached to the MR. [Mendoza v. David, G.R. No. 147575 (2004)] Perfection of appeal Appeal is deemed perfected as to petitioner upon the 1. Timely filing of the petition, and 2. Payment of the corresponding docket and lawful fees. [Sec. 8(a), Rule 42] Jurisdiction of the RTC 1. The RTC loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. 2. However, before the CA gives due course to the petition, the RTC may: a. Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve cornpromises b. Permit appeals of indigent litigants c. Order execution pending appeal in accordance with Sec, 2 of Rule 39, and d. Allow withdrawal of the appeal. [Sec. 8(a), Rule 42] Note: The Doctrine of Residual Jurisdiction of the RTC, at item (2) above, applies as in cases under Rule 42, except that the RTC must exercise this jurisdiction before the CA gives due course to the petition. [Sec. 8(a), Rule 42] In contrast, the RTC must exercise residual jurisdiction in Rule 41 prior to transmittal of the original record or the record on appeal. [Sec. 9, Rule 41] Effect of appeal General rule: The appeal shall stay the judgment or final order. Exceptions:

Page 131 of 525

U.P. LAW BOC

CIVIL PROCEDURE

1. Civil cases decided under the Rule on Summary Procedure, or 2. The CA, the law, or ROC provide otherwise [Sec. 8(a), Rule 42]

Action on petition The CA may: 1. Require the respondent to file a comment on the petition, not a motion to dismiss, within 10 days from notice; or 2. Dismiss the petition if it finds a. The same to be patently without merit or prosecuted manifestly for delay, or b. That the questions raised therein are too insubstantial to require consideration [Sec. 4, Rule 42] Note: Under this Rule, appeal is discretionary on the CA which may give its due course only when the petition shows prima facie that the lower court has committed error. [1 Riano 600, 2011 Ed.] Contents of comment 1. In 7 legible copies • Note: Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA 2. Certified true copies of such material portions of the record referred to therein 3. Together with other supporting papers 4. Whether or not he accepts the statement of matters involved in the petition 5. Such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but without repetition, and 6. The reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. [Sec. 5, Rule 42] Due course 1. If upon the filing of the comment or such other pleadings as the court may allow or require, or 2. After the expiration of the period for the filing thereof without such comment or pleading having been submitted,

REMEDIAL LAW

the CA finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. [Sec. 6, Rule 42] Whenever the CA deems it necessary, it may order the COC of the RTC to elevate the original record of the case including the oral and documentary evidence within 15 days from notice. [Sec. 7, Rule 42] Submission for decision 1. If the petition is given due course, the CA may a. set the case for oral argument or b. require the parties to submit memoranda within a period of 15 days from notice. 2. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself. [Sec. 9, Rule 42] RULE 45 Appeal by certiorari from the RTC to the SC via Rule 45 RTC must have rendered judgment in the exercise of its original jurisdiction. [1 Regalado 609, 2010 Ed.] If the RTC is in exercise of its appellate jurisdiction, proper remedy is to appeal to the CA via Rule 42 even if only questions of law are raised. [1 Regalado 609, 2010 Ed.] Note: A question of law exists when there is a doubt/controversy as to what the law is on a certain state of facts. There is a question of fact when the doubt/ difference arises as to the truth/ falsehood of facts. [Ramos v. Pepsi, G.R. No. L-22533 (1967)] If the test is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, it is a question of law. The question must not involve the examination of the probative value of the evidence presented. [Vda. De Arroyo v. El Beaterio, G.R. No. L22005 (1968)]

Page 132 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Grave abuse of discretion is not an allowable ground under Rule 45. [Martires v. CA, G.R. No. 78036-37 (1990)] x. Appeal from Judgments or Final Orders of The Court of Appeals Any alleged errors committed in the exercise of its jurisdiction will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action of certiorari. [Chuidian v. Sandiganbayan (Fifth Division), G.R. No. 139941 (2001)]] As provided in Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review, which would be but a continuation of the appellate process over the original case. [Fortune Guarantee and Insurance Corporation v. CA, G.R. No. 110701 (2002)] Certiorari as mode of appeal and as special civil action Appeal by Certiorari as SCA certiorari [Rule 65] [Rule 45] Writ of certiorari issues for the correction of errors Brings up for review, of jurisdiction only errors of judgment or grave abuse of committed by the discretion amounting court. to lack or excess of jurisdiction. [Silverio v. CA, G.R.No. L39861 (1986)] Petition raises the issue as to whether Based on questions the lower court acted of law which the without or in appellant desires the excess of appellant court to jurisdiction or with resolve grave abuse of discretion

REMEDIAL LAW

Involves the review of the judgment, award or final order on the merits

May be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy

Must be made within the reglementary period for appeal

May be filed not later than 60 days from notice of the judgment, order or resolution sought to be assailed

Stays the judgment, award or order appealed from

Petitioner and respondent are the original parties to the action, and the lower court or quasijudicial agency is not to be impleaded

Prior filing of a MR is not required [Sec. 1] Appellate court is in the exercise of its appellate jurisdiction and power of review [Regalado 543-544, 1977 Ed.]

Page 133 of 525

Unless a writ of preliminary injunction or a TRO shall have been issued, does not stay the challenged proceeding The parties are the aggrieved party against the lower court or quasijudicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents MR is a condition precedent [Villa Rey Transit v. Bello, G.R. No. L-18957 (1963)], subject to certain exceptions. Higher court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts

U.P. LAW BOC

CIVIL PROCEDURE

[Regalado 543-544, 1977 Ed.]

Questions of law Doubt as to what the law is on certain facts.

[2 Herrera 643-645, 2000 Ed.] Procedure [Rule 45] File a verified petition for review on certiorari, which may include an application for a writ of preliminary injunction or other provisional remedies. [Sec. 1] Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. [Sec. 3] ↓ Pay the corresponding docket and other lawful fees to the COC of the SC and deposit the amount of ₱500.00 for costs at the time of the filing of the petition. [Sec. 3] ↓ SC may dismiss or deny the petition [Sec. 5], or give due course to it. [Sec. 8] ↓ If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. [Sec. 8] Propriety as a mode of appeal A party desiring to appeal by certiorari from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law, may file with the SC a verified petition for review on certiorari. [Sec. 1, Rule 45] Only questions of law are allowed. The petition shall raise only questions of law. [Sec. 1, Rule 45] Whether an appeal involves only questions of law or both questions of law and fact is best left to the determination of an appellate court and not by the court which rendered the decision appealed from. [PNB v. Romillo, etc., et al., G.R. No. L-70681 (1985)]

If the appellate court can determine the issue without reviewing or evaluating the evidence.

REMEDIAL LAW

Questions of fact Doubt as to the truth or falsehood of facts, or as to probative value of the evidence presented. The determination involves evaluation or review of evidence.

Query involves the calibration of the whole evidence considering mainly the credibility of Can involve witnesses, questions of existence, and interpretation of law relevancy of specific with respect to a surrounding certain set of facts. circumstances and relation to each other and the whole probabilities of the situation. [1 Regalado 609, 2010 Ed. citing Bernardo v. CA, G.R. No. 101680 (1992), Pilar Development Corp. v. IAC, G.R. No. 72283 (1986); Vda. de Arroyo v. El Beaterio del Santissimo Rosario de Molo, G.R. No. L-22005 (1968)] Conclusiveness of findings of fact General rule: The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, findings of facts of trial court, as affirmed on appeal by the CA, are conclusive on the court. [Boston Bank of the Philippines v. Manalo, G.R. No. 158149 (2006)] Exceptions: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: 1. Conclusion is a finding grounded entirely on speculations, surmises or conjectures [Joaquin v. Navarro, G.R. No. L-5426 (1953)]

Page 134 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok, G.R. No. 48403 (1942)] 3. There is grave abuse of discretion in the appreciation of facts [Buyco v. People, G.R. No. L-6327 (1954)] 4. Judgment is based on a misapprehension of facts [De la Cruz v. Sosing, G.R. No. L4875 (1953)] 5. The CA’s findings of fact are conflicting [Casica v. Villaseca, G.R. No. L-9590 (1957)] 6. The CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons v. CA, G.R. No. L-47851 (1986)] 7. The CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos, G.R. No. L-19498 (1965)] 8. The CA’s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record. [Manlapaz v. CA, G.R. No. L-56589 (1987)]

Period of appeal Within 15 days from notice of the 1. Judgment or final order or resolution appealed from, or 2. Denial of the petitioner’s MNT or MR filed in due time after notice of the judgment. [Sec. 2, Rule 45] Note: The Neypes doctrine which gives a fresh 15-day period to the appellant is also applicable to Rule 45 petitions. [Neypes v. CA, G.R. No. 141524 (2005) Extension of period On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for

REMEDIAL LAW

justifiable reasons grant an extension of 30 days only within which to file the petition. [Sec. 2, Rule 45] Form and contents of petition 1. In 7 legible copies, with the original copy intended for the court being indicated as such by the petitioner a. Under Sec. 5(a) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and four copies, unless the case is referred to the SC en banc, in which event, the parties shall file ten additional copies and simultaneously soft copies of the same and their annexes (the latter in PDF format) either by email to the SC’s e-mail address or by compact disc (CD) 2. Full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; 3. Specific material dates showing that it was filed on time; 4. A concise statement of the a. Matters involved b. Issues raised c. Specification of errors of fact or law, or both, allegedly committed by the rtc, and d. Reasons or arguments relied upon for the allowance of the appeal 5. Clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the COC of the RTC, 6. Requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition 7. Certificate of non-forum shopping [Sec. 2, Rule 45] Grounds for denial of petition The SC may dismiss the petition on motion or motu proprio upon showing: a. Failure of petitioner to comply with 1. Payment of docket or other lawful fees 2. Deposit for costs 3. Proof of Service; and

Page 135 of 525

U.P. LAW BOC

CIVIL PROCEDURE

4. Contents of and documents which would accompany the petition b. Appeal is without merit c. It is prosecuted manifestly for delay d. That the questions raised are so unsubstantial as to require consideration. [Sec. 5, Rule 45] Notes: Although the lower court is not a party to the case, failure to present proof of service of copies to the lower court and to the adverse party shall result in the outright dismissal of the appeal. This is because the service is for the purpose of giving the lower court notice that its judgment should not be entered since it is not yet executory due to the pending petition. [1 Regalado 615-616, 2010 Ed.]

by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the ROC. [Sec. 7, P.D. 1606, as amended; and Sec. 1, Rule 45] xii. Appeal from Judgments or Final Orders of The Court of Tax Appeals Mode of review The CTA is no longer a quasi-judicial agency under R.A. 9282, as of April 7, 2004. The CTA is no longer covered by Rule 43. A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari under Rule 45. [Sec. 11, R.A. 9282 and A.M. No. 07-7-12-SC]

Review is discretionary A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefore. The following are examples that may be considered by the court: 1. When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC, or 2. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision [Sec. 6, Rule 45] Elevation of records If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. [Sec. 8, Rule 45] xi. Appeal from Judgments or Final Orders of The Sandiganbayan Mode of review Decisions and final orders of the Sandiganbayan shall be appealable to the SC

REMEDIAL LAW

xiii. Review of Final Judgments or Final Orders of The Commission on Audit Mode of review A judgment or final order or resolution of the Commission on Audit (COA) may be brought by the aggrieved party to the SC on certiorari under Rule 65, except as hereinafter provided. [Sec. 2, Rule 64] Filing of the petition 1. The petition shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed. 2. The filing of a MNT or MR of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. 3. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial. [Sec. 3, Rule 45] Effect of filing The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed,

Page 136 of 525

U.P. LAW BOC

CIVIL PROCEDURE

unless the SC shall direct otherwise upon such terms as it may deem just. [Sec. 8, Rule 64] When the decision, order or resolution adversely affects the interest of any government agency, the appeal may be taken by the proper head of that agency. [Sec. 1, Rule XII, 2009 Revised Rules of Procedure of the Commission on Audit] xiv. Review of Final Judgments or Final Orders of The Commission on Elections Mode of review A judgment or final order or resolution of the Commission on Elections (COMELEC) may be brought by the aggrieved party to the SC on certiorari under Rule 65, except as hereinafter provided. [Sec. 2, Rule 64] Unless otherwise provided by law, or by any specific provisions in the COMELEC Rules of Procedure, any decision, order or ruling of the Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from its promulgation. [Sec. 1, Rule 37, COMELEC Rules of Procedure] xv. Review of Final Judgments or Final Orders of The Civil Service Commission See Rule 43 on Review of QJAs below. xvi. Review of Final Judgments or Final Orders of The Ombudsman Unappealable decisions The following decisions are unappealable: 1. In administrative cases where respondent is absolved of the charge 2. In case of conviction, where penalty imposed is public censure or reprimand, or suspension of not more than one month or a fine equivalent to one month salary [Sec. 7, Rule III, Admin Order No. 7]

REMEDIAL LAW

cases should be taken to the CA under the provisions of Rule 43. [Fabian v. Desierto, G.R. No. 129742 (1998)] Note: The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases [Duyon v. The Former Special Fourth Division of the Court Of Appeals, G.R. No. 172218 (2014)] Jurisdiction of the SC Decisions of the Ombudsman in criminal cases are unappealable. However, where the findings of the Ombudsman on the existence of probable cause (in criminal cases) are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file before the SC a petition for certiorari under Rule 65. [Duyon v. The Former Special Fourth Division of the Court Of Appeals, G.R. No. 172218 (2014)] xvii. Review of Final Judgments or Final Orders of The National Labor Relations Commission Appeal from the NLRC Appeal from quasi-judicial agencies under Rule 43 does not apply to judgments or final orders issued under the Labor Code. [Sec. 2, Rule 43] The remedy of a party aggrieved by the decision of the NLRC is to file a MR and, if denied, file a special civil action for certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, this should be filed with the CA. [St. Martin Funeral Homes v. NLRC, G.R. No. 130866 (1998)] From the CA, the remedy of the aggrieved party is a petition for review by certiorari to the SC [Dongon v. Rapid Movers and Forwarders, G.R. No. 163431 (2013)]

Jurisdiction of the CA Appeals from decisions of the Office of the Ombudsman in administrative disciplinary Page 137 of 525

U.P. LAW BOC

a.

CIVIL PROCEDURE

Review of Final Judgments or Final Orders of Quasi-judicial Agencies

Scope Appeals from awards, judgments, final orders, or resolutions of or authorized by any quasijudicial agency (QJA) in the exercise of its quasi-judicial functions. [Sec. 1, Rule 43] A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties though either adjudication or rule-making. [United Coconut Planters Bank v. E. Ganzon, Inc., G.R. No. 168859 (2009)] Quasi-judicial agencies covered by Rule 43: 1. Civil Service Commission 2. Securities and Exchange Commission 3. Office of the President 4. Land Registration Authority 5. Social Security Commission 6. Civil Aeronautics Board 7. Bureau of Patents, Trademarks and Technology Transfer 8. National Electrification Administration 9. Energy Regulatory Board 10. National Telecommunications Commission 11. Department of Agrarian Reform under RA 6657 12. GSIS 13. Employees Compensation Commission 14. Agricultural Inventions Board 15. Insurance Commission 16. Philippine Atomic Energy Commission 17. Board of Investment 18. Construction Industry Arbitration Commission, and 19. Voluntary arbitrators authorized by law Where to appeal Appeal may be taken to the CA on questions of fact, of law, or mixed questions of fact and law. [Sec. 3, Rule 43] Period to appeal Within 15 days from 1. Notice of award, judgment, final order, or resolution, or 2. Date of its last publication, if publication is required by law for its effectivity; or

REMEDIAL LAW

3. Denial of petitioner’s MNT or MR duly filed in accordance with the governing law of the court or agency a quo. [Sec. 4, Rule 43]

Extension of period Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Sec. 4, Rule 43] How taken 1. File a verified petition for review in 7 legible copies with the CA a. The original copy of the petition intended for the CA shall be indicated as such by the petitioner. b. Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA 2. Proof of service of a copy thereof on the adverse party and on the court or agency a quo. 3. Upon the filing of the petition, pay to the COC of the CA the docketing and other lawful fees and deposit PHP 500.00 for costs. a. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the CA upon a verified motion setting forth valid grounds therefor. b. If the CA denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within 15 days from notice of the denial. [Sec. 5, Rule 43] Contents of petition 1. Full names of parties to the case, without impleading the court or agencies 2. Concise statement of facts and issues involved, and grounds relied upon for review

Page 138 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok, G.R. No. 48403 (1942)] 3. There is grave abuse of discretion in the appreciation of facts [Buyco v. People, G.R. No. L-6327 (1954)] 4. Judgment is based on a misapprehension of facts [De la Cruz v. Sosing, G.R. No. L4875 (1953)] 5. The CA’s findings of fact are conflicting [Casica v. Villaseca, G.R. No. L-9590 (1957)] 6. The CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons v. CA, G.R. No. L-47851 (1986)] 7. The CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos, G.R. No. L-19498 (1965)] 8. The CA’s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record. [Manlapaz v. CA, G.R. No. L-56589 (1987)]

Period of appeal Within 15 days from notice of the 1. Judgment or final order or resolution appealed from, or 2. Denial of the petitioner’s MNT or MR filed in due time after notice of the judgment. [Sec. 2, Rule 45] Note: The Neypes doctrine which gives a fresh 15-day period to the appellant is also applicable to Rule 45 petitions. [Neypes v. CA, G.R. No. 141524 (2005) Extension of period On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for

REMEDIAL LAW

justifiable reasons grant an extension of 30 days only within which to file the petition. [Sec. 2, Rule 45] Form and contents of petition 1. In 7 legible copies, with the original copy intended for the court being indicated as such by the petitioner a. Under Sec. 5(a) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and four copies, unless the case is referred to the SC en banc, in which event, the parties shall file ten additional copies and simultaneously soft copies of the same and their annexes (the latter in PDF format) either by email to the SC’s e-mail address or by compact disc (CD) 2. Full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; 3. Specific material dates showing that it was filed on time; 4. A concise statement of the a. Matters involved b. Issues raised c. Specification of errors of fact or law, or both, allegedly committed by the rtc, and d. Reasons or arguments relied upon for the allowance of the appeal 5. Clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the COC of the RTC, 6. Requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition 7. Certificate of non-forum shopping [Sec. 2, Rule 45] Grounds for denial of petition The SC may dismiss the petition on motion or motu proprio upon showing: a. Failure of petitioner to comply with 1. Payment of docket or other lawful fees 2. Deposit for costs 3. Proof of Service; and

Page 135 of 525

U.P. LAW BOC

CIVIL PROCEDURE

4. Contents of and documents which would accompany the petition b. Appeal is without merit c. It is prosecuted manifestly for delay d. That the questions raised are so unsubstantial as to require consideration. [Sec. 5, Rule 45] Notes: Although the lower court is not a party to the case, failure to present proof of service of copies to the lower court and to the adverse party shall result in the outright dismissal of the appeal. This is because the service is for the purpose of giving the lower court notice that its judgment should not be entered since it is not yet executory due to the pending petition. [1 Regalado 615-616, 2010 Ed.]

by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the ROC. [Sec. 7, P.D. 1606, as amended; and Sec. 1, Rule 45] xii. Appeal from Judgments or Final Orders of The Court of Tax Appeals Mode of review The CTA is no longer a quasi-judicial agency under R.A. 9282, as of April 7, 2004. The CTA is no longer covered by Rule 43. A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari under Rule 45. [Sec. 11, R.A. 9282 and A.M. No. 07-7-12-SC]

Review is discretionary A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefore. The following are examples that may be considered by the court: 1. When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC, or 2. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision [Sec. 6, Rule 45] Elevation of records If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. [Sec. 8, Rule 45] xi. Appeal from Judgments or Final Orders of The Sandiganbayan Mode of review Decisions and final orders of the Sandiganbayan shall be appealable to the SC

REMEDIAL LAW

xiii. Review of Final Judgments or Final Orders of The Commission on Audit Mode of review A judgment or final order or resolution of the Commission on Audit (COA) may be brought by the aggrieved party to the SC on certiorari under Rule 65, except as hereinafter provided. [Sec. 2, Rule 64] Filing of the petition 1. The petition shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed. 2. The filing of a MNT or MR of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. 3. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial. [Sec. 3, Rule 45] Effect of filing The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed,

Page 136 of 525

U.P. LAW BOC

CIVIL PROCEDURE

unless the SC shall direct otherwise upon such terms as it may deem just. [Sec. 8, Rule 64] When the decision, order or resolution adversely affects the interest of any government agency, the appeal may be taken by the proper head of that agency. [Sec. 1, Rule XII, 2009 Revised Rules of Procedure of the Commission on Audit] xiv. Review of Final Judgments or Final Orders of The Commission on Elections Mode of review A judgment or final order or resolution of the Commission on Elections (COMELEC) may be brought by the aggrieved party to the SC on certiorari under Rule 65, except as hereinafter provided. [Sec. 2, Rule 64] Unless otherwise provided by law, or by any specific provisions in the COMELEC Rules of Procedure, any decision, order or ruling of the Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from its promulgation. [Sec. 1, Rule 37, COMELEC Rules of Procedure] xv. Review of Final Judgments or Final Orders of The Civil Service Commission See Rule 43 on Review of QJAs below. xvi. Review of Final Judgments or Final Orders of The Ombudsman Unappealable decisions The following decisions are unappealable: 1. In administrative cases where respondent is absolved of the charge 2. In case of conviction, where penalty imposed is public censure or reprimand, or suspension of not more than one month or a fine equivalent to one month salary [Sec. 7, Rule III, Admin Order No. 7]

REMEDIAL LAW

cases should be taken to the CA under the provisions of Rule 43. [Fabian v. Desierto, G.R. No. 129742 (1998)] Note: The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases [Duyon v. The Former Special Fourth Division of the Court Of Appeals, G.R. No. 172218 (2014)] Jurisdiction of the SC Decisions of the Ombudsman in criminal cases are unappealable. However, where the findings of the Ombudsman on the existence of probable cause (in criminal cases) are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file before the SC a petition for certiorari under Rule 65. [Duyon v. The Former Special Fourth Division of the Court Of Appeals, G.R. No. 172218 (2014)] xvii. Review of Final Judgments or Final Orders of The National Labor Relations Commission Appeal from the NLRC Appeal from quasi-judicial agencies under Rule 43 does not apply to judgments or final orders issued under the Labor Code. [Sec. 2, Rule 43] The remedy of a party aggrieved by the decision of the NLRC is to file a MR and, if denied, file a special civil action for certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, this should be filed with the CA. [St. Martin Funeral Homes v. NLRC, G.R. No. 130866 (1998)] From the CA, the remedy of the aggrieved party is a petition for review by certiorari to the SC [Dongon v. Rapid Movers and Forwarders, G.R. No. 163431 (2013)]

Jurisdiction of the CA Appeals from decisions of the Office of the Ombudsman in administrative disciplinary Page 137 of 525

U.P. LAW BOC

a.

CIVIL PROCEDURE

Review of Final Judgments or Final Orders of Quasi-judicial Agencies

Scope Appeals from awards, judgments, final orders, or resolutions of or authorized by any quasijudicial agency (QJA) in the exercise of its quasi-judicial functions. [Sec. 1, Rule 43] A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties though either adjudication or rule-making. [United Coconut Planters Bank v. E. Ganzon, Inc., G.R. No. 168859 (2009)] Quasi-judicial agencies covered by Rule 43: 1. Civil Service Commission 2. Securities and Exchange Commission 3. Office of the President 4. Land Registration Authority 5. Social Security Commission 6. Civil Aeronautics Board 7. Bureau of Patents, Trademarks and Technology Transfer 8. National Electrification Administration 9. Energy Regulatory Board 10. National Telecommunications Commission 11. Department of Agrarian Reform under RA 6657 12. GSIS 13. Employees Compensation Commission 14. Agricultural Inventions Board 15. Insurance Commission 16. Philippine Atomic Energy Commission 17. Board of Investment 18. Construction Industry Arbitration Commission, and 19. Voluntary arbitrators authorized by law Where to appeal Appeal may be taken to the CA on questions of fact, of law, or mixed questions of fact and law. [Sec. 3, Rule 43] Period to appeal Within 15 days from 1. Notice of award, judgment, final order, or resolution, or 2. Date of its last publication, if publication is required by law for its effectivity; or

REMEDIAL LAW

3. Denial of petitioner’s MNT or MR duly filed in accordance with the governing law of the court or agency a quo. [Sec. 4, Rule 43]

Extension of period Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Sec. 4, Rule 43] How taken 1. File a verified petition for review in 7 legible copies with the CA a. The original copy of the petition intended for the CA shall be indicated as such by the petitioner. b. Under Sec. 5(b) of the Efficient Use of Paper Rule [A.M. 11-9-4-SC], file one original (properly marked) and 2 copies with their annexes with the CA 2. Proof of service of a copy thereof on the adverse party and on the court or agency a quo. 3. Upon the filing of the petition, pay to the COC of the CA the docketing and other lawful fees and deposit PHP 500.00 for costs. a. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the CA upon a verified motion setting forth valid grounds therefor. b. If the CA denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within 15 days from notice of the denial. [Sec. 5, Rule 43] Contents of petition 1. Full names of parties to the case, without impleading the court or agencies 2. Concise statement of facts and issues involved, and grounds relied upon for review

Page 138 of 525

U.P. LAW BOC

CIVIL PROCEDURE

order of execution [Cayetano v. Ceguerra, G.R. No. L-18831 (1965)] or an order dismissing an appeal. [Medran v. CA, G.R. No. L-1350 (1949)] A party who has filed a timely MNT or MR can no longer file a petition for relief from judgment after his motion has been denied. [Francisco v. Puno, G.R. No. L-55694 (1981)]

Note: These two periods must concur, are not extendible and are never interrupted. Strict compliance with these periods stems from the equitable character and nature of the petition for relief. Such petition is actually the “last chance” given by law to litigants to question a final judgment or order. Failure to avail of such chance, within the grace period fixed by the Rules, is fatal. [Quelnan v. VHF Phils, G.R. No. 138500 (2005)]

A petition for relief is not an available remedy in the SC or the CA. [Purcon vs MRM Philippines Inc., G.R. No. 182718 (2008)] i. Grounds Remedy

for

Availing

of

the

1. When judgment or final order is entered, or any other proceeding is thereafter taken against petitioner through FAME • Petition is filed in the same court, in the same case with prayer for the judgment, order, proceeding to be set aside. 2. When petitioner has been prevented from taking an appeal by FAME • Petition is filed in the same court, in the same case with prayer for the appeal to be given due course. [Secs. 1-2, Rule 38]

Note: “Extrinsic fraud” - fraud which the prevailing party caused to prevent the losing party from being heard on his action or defense. Such fraud concerns not the judgment itself but the manner in which it was obtained. [AFP Mutual Benefit Association, Inc. v. RTC-Marikina City, G.R. No. 183906 (2011)] ii. Time to File Petition 1. Within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and 2. Not more than 6 months after such judgment or final order was entered, or such proceeding was taken. [Sec. 3, Rule 38]

REMEDIAL LAW

iii. Contents of Petition The petition must be: 1. Verified; 2. Accompanied by an affidavit showing the FAME relied upon; and 3. The facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be. [Sec. 3, Rule 38] Note: A petition for relief from judgment may only be availed of by a party to the proceeding. [Alaban vs CA, 470 SCRA 697, 705] The absence of an affidavit of merits is a fatal defect and warrants denial of the petition. [Fernandez v. Tan Tiong Tick, G.R. No. 15877 (1961)] However, it is not a fatal defect so long as the facts required to be set out also appear in the verified petition. [Fabar Inc. v. Rodelas, G.R. No. L-46394 (1977)] When affidavit of merit is not necessary: 1. When there is lack of jurisdiction over the defendant; 2. When there is lack of jurisdiction over the subject matter; 3. When judgment was taken by default; 4. When judgment was entered by mistake or was obtained by fraud; or 5. Other similar cases. (1 Regalado 434-435, 2010 Ed.] Order to file answer If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within 15 days from the receipt thereof.

Page 143 of 525

U.P. LAW BOC

CIVIL PROCEDURE



The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. [Sec. 4, Rule 38] Note: Failure to answer the petition for relief does not constitute default. Even without it, the court will still have to hear the petition on the merits. [1 Regalado 447. 2010 Ed.] Proceedings after answer is filed After the filing of the answer or the expiration of the period therefore, the court shall hear the petition a. If the allegations are not true, the petition shall be dismissed b. If the allegations are true, it shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just and the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. [Sec. 3, Rule 38]

REMEDIAL LAW

d. Annulment of Judgments or Final Orders and Resolutions Nature An action for annulment of judgment is a remedy in equity exceptional in character availed of only when other remedies are wanting. [Spouses Teano vs The Municipality of Navotas, G.R. No. 205814 (2016)] It is a remedy independent of the case where the judgment sought to be annulled is rendered. It is not the continuation of the same case, like in the reliefs of MR, appeal, or petition for relief. [CIR vs Kepco Ilijan Corp., G.R. No. 199422 (2016)] Such remedy is considered an exception to the final judgment rule or the doctrine of immutability of judgments. [Diona v. Balangue, 688 SCRA 22, 34, (2013)] Purpose The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. [Spouses Teano v. The Municipality of Navotas, G.R. No. 205814 (2016)]

Note: Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. [Sec. 7, Rule 38]

When proper An action for annulment of judgment may be availed of even if the judgment to be annulled has already been fully executed or implemented. [Islamic Da’wah Council of the Philippines. v. CA, G.R. No. 80892 (1989)]

Remedy for denial of petition for relief Appeal from an order denying a petition for relief is no longer available under the present rules. [1 Regalado 437, 2010 Ed. citing Sec. 1, Rule 41]

When not available The remedy may not be invoked: a. Where the party has availed himself of the remedy of new trial, appeal, petition for review, or other appropriate remedy and lost, or b. Where he has failed to avail himself of those remedies through his own fault or negligence. [Republic v. ‘G’ Holdings, Inc., G.R. No. 141241 (2005)]

Note: An order granting a petition for relief is interlocutory and non-appealable [1 Regalado 447, 2010 Ed.] The remedy against a denial of a petition for relief is certiorari under Rule 65, when proper [1 Regalado 437, 2010 Ed.]

Note: It is a condition sine qua non that one must have failed to avail of those remedies, through no fault attributable to him. Otherwise,

Page 144 of 525

U.P. LAW BOC

CIVIL PROCEDURE

he would benefit from his own inaction or negligence. [Republic v. De Castro, G.R. No. 189724 (2011)] Where filed Judgment, Final Order or Resolution of the RTC Filed with the CA [Sec. 1, Rule 47] CA has exclusive and original jurisdiction over said action under Sec. 9(2) of BP 129 The CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition. [Sec. 5, Rule 47]

Judgment, Final Order or Resolution of the MTC, etc. Filed with the RTC [Sec. 19(6), BP 129] RTC as a court of general jurisdiction under Sec. 19(6), BP 129 The RTC has no such discretion, it is required to consider it as an ordinary civil action.

Who can file A person who is not a party to the judgment may sue for its annulment provided that he can prove: a. The judgment was obtained through fraud or collusion, and b. He would be adversely affected thereby. [Alaban v. CA, G.R. No. 156021 (2005)] i. Grounds for Annulment The annulment may be based only on the grounds of: a. Extrinsic fraud, and • Note: Such shall not be a valid ground if it was availed of, or could have been availed of, in a MNT or petition for relief. b. Lack of jurisdiction. [Sec. 2, Rule 47] Extrinsic fraud It refers to any fraudulent act of the prevailing party in litigation committed outside the trial of the case where the defeated party

REMEDIAL LAW

prevented from fully exhibiting his side by fraud or deception practiced on him by his opponents like: a. Keeping him away from court, b. Giving him false promise of a compromise, or c. Where an attorney fraudulently or without authority connives at his defeat. [Cagayan Economic Zone Authority vs Meridien Vista Gaming Corp, G.R. No. 194962 (2016)] Note: Use of forged instruments, perjured testimonies, or other manufactured evidence is not extrinsic fraud since such evidence does not preclude a party’s participation in trial. [Bobis v. CA, G.R. No. 113796 (2000), and Conde v. IAC, G.R. No. 70443 (1986)] Lack of jurisdiction Either lack of jurisdiction over the person of the defending party, or over the subject matter of the claim. [1 Regalado 630, 2010 Ed.] Petitioner must show absolute lack of jurisdiction and not mere abuse of judicial discretion; a claim of grave abuse of discretion will support a petition for certiorari but not an action for annulment of judgment. [1 Riano 633, 2011 Ed.] Only evidence found in the record can justify nullity. [Arcelona v. CA, G.R. No. 102900 (1997)] Form and contents of petition 1. Verified petition, alleging therein: a. With particularity the facts and the law relied upon b. Petitioner’s good and substantial cause of action or defense 2. In 7 clearly legible copies, together with sufficient copies corresponding to the number of respondents 3. Certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by the petitioner

Page 145 of 525

U.P. LAW BOC

CIVIL PROCEDURE

4. Affidavits of witnesses or documents supporting the cause of action or defense; and 5. Certificate of non-forum shopping. [Sec. 3, Rule 47]

ii. Period to File Action Extrinsic fraud Period for filing

4 years from discovery

Lack of jurisdiction Before it is barred by laches or estoppel

[Sec. 3, Rule 47] Note: There must be a manifest showing with petition that it was filed within the 4-yr period. [1 Regalado 532, 2010 Ed.] Action of the court 1. Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal. 2. Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. [Sec. 5, Rule 47] Procedure The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of the evidence may be referred to a member of the court or a judge of a RTC. [Sec. 6, Rule 47] Note: Prima facie determination is not available in annulment of judgments or final orders of MTCs before the RTC. [Sec. 10, Rule 47] iii. Effects of Judgment of Annulment Based on lack of jurisdiction A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action

REMEDIAL LAW

being refiled in the proper court. [Sec. 7, Rule 47] Based on extrinsic fraud The court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. [Sec. 7, Rule 47] Difference: When it is based on extrinsic fraud, the original judgment was not tainted by jurisdictional defects but by the deception which then resulted in the prejudicial error [1 Regalado 635-636, 2010 Ed.] Note: The judgment of annulment may include the award of damages, attorney’s fees, and other reliefs. [Sec. 9, Rule 47] Effect on prescriptive period for refiling of the original action When suspended - from the filing of said original action until the finality of the judgment of annulment. When not suspended - where the extrinsic fraud is attributable to the plaintiff in the original action. [Sec. 8, Rule 47]

e. Collateral Attack of Judgments Direct attack vs. Collateral attack a. Direct attack - The object of an action is to annul or set aside such judgment, or enjoin its enforcement. b. Collateral/Indirect attack - In an action to obtain a different relief, an attack on the judgment or proceeding is made as an incident thereof. [Hortizuela v. Tagufa, G.R. No. 205867 (2015)] The validity of a judgment or order of the court, which has become final and executory, may be attacked in three ways: a. By a direct action or proceeding to annul the same • To annul and enjoin enforcement of the judgment, where the alleged defect is not apparent on its face or from the recitals contained in the judgment; See Rule 47

Page 146 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. By direct action, as certiorari, or by collateral attack in case of apparent nullity • The collateral attack must be against a challenged judgment which is void upon its face as where it is patent that the court which rendered said judgment has no jurisdiction or that the nullity of the judgment is apparent from its own recitals c. By a Petition for Relief under Rule 38 • Must be taken in the same action or proceeding in which the judgment or order was entered. [1 Regalado 454-456, 2010 Ed.] Void judgment 1. Considered as no judgment at all. 2. Cannot be the source of any right nor the creator of any obligation. 3. All acts performed pursuant to it and all claims emanating from it have no legal effect. 4. Can never become final and any writ of execution based on it is void. [Polystyrene Manufacturing v. Privatization Management, G.R. No. 171336 (2007)] Attacking a void judgment 1. It may be assailed any time, and 2. It may be done collaterally or in a direct action unless barred by laches. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008)] Remedies If the period for appeal has not yet lapsed: 1. New Trial and Reconsideration [Rule 37], 2. Appeal [Rules 40-45], 3. Petition for Relief [Rule 48], and 4. Other appropriate remedies such as certiorari. [1 Riano 60, 2011 Ed.] If the appropriate remedies are no longer available without the fault of the petitioner, he may avail of a petition for Annulment of Judgment [Rule 47] [Mandy Commodities Co. Inc. v ICBC, G.R. No. 166734 (2009)]

REMEDIAL LAW

Note: When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. [Barrameda v. Moir, G.R. No. L-7927 (1913)]

19. EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS Definition Execution is a remedy afforded by law for the enforcement of a judgment. It is a judicial writ issued to an officer authorizing and requiring him to execute the judgment of the court. [Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L-65439 (1986), citing 2 Francisco, 592-593, 1966 Ed.] Note: The prevailing party can secure certified true copies of the judgment or final order of the appellate court, the entry thereof, and submit it to the court of origin to justify a motion for a writ of execution even without waiting for receipt of the records from the appellate court. [Circular No. 24-94] The appellate court can also direct the issuance of the writ of execution upon motion in the same while the records are still with the appellate court, or even after remand to the lower court. [1 Regalado 452, 2010 Ed.]

a. Difference Between Finality of Judgment for Purposes of Appeal and for Purposes of Execution A judgment is final if it disposes of the action as distinguished from an interlocutory order which leaves something to be done with respect to the merits of the case, and it is executory if the period to appeal has expired and no appeal is taken. [2 Herrera 281, 2007 Ed.; 1 Regalado 450, 2010 Ed.] Finality for purposes of appeal refers to the distinction between “final judgments or orders” and “interlocutory orders,” which cannot be

Page 147 of 525

U.P. LAW BOC

CIVIL PROCEDURE

appealed according to Sec. 1(b), Rule 41 [1 Regalado 450, 2010 Ed.] A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. Examples include: a. An adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or b. A judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. [Heirs of Dimaampao v. Alug, G.R. No. 198223 (2015)] Finality for purposes of execution refers to the judgment being “final and executory” upon the lapse of the appeal period if no appeal is taken, upon which execution shall issue as a matter of right according to Sec. 1, Rule 39. [1 Regalado 449-450, 2010 Ed., see Perez v. Zulueta, G.R. No. L-10374 (1959)] A judgment becomes “final and executory” by operation of law. [Prieto v. Alpadi Development Corporation, G.R. No. 191025 (2013)]

Final Judgments Final judgments finally dispose of, adjudicate, or determine the rights of the parties, HOWEVER, they are not yet “final and executory” pending the expiration of the reglementary period for appeal. [1 Regalado 450, 2010 Ed.]

Final and Executory Judgments

Judgments become final and executory by operation of law after the lapse of the period for appeal without an appeal being filed. [Cadena v. Civil Service Commission, G.R. No. 191412 (2012)]

During that period, the winning party cannot demand the execution of the judgment yet as a right. [City of Manila v. CA, G.R. No. 100626 (1991)]

REMEDIAL LAW

After the lapse of the reglementary period to appeal, the prevailing party is entitled to a writ of execution, and issuance thereof is a ministerial duty of the court. [City of Manila v. CA, G.R. No. 100626 (1991)]

b. When Execution Shall Issue General rule: Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. [Sec. 1, Rule 39] Exceptions: The following are immediately executory without the expiration of the period to appeal a. Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory. [Sec. 1, Rule 39] b. Judgments in an action for forcible entry or unlawful detainer rendered against the defendant. [Sec. 19, Rule 39] c. The decision of the Regional Trial Court in civil cases governed by the Rules on Summary Procedure. [Sec. 21, Rules on Summary Procedure] d. The decision of the Labor Arbiter reinstating a dismissed or separated employee. [Art. 229, Labor Code] Exception to the exception: The appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. [Sec. 1, Rule 39]

Page 148 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Quashal of a writ of execution General rule: The execution of final and executory judgments may no longer be contested and prevented, and no appeal should lie therefrom. [1 Riano 609, 2016 Ed.] Exception: These exceptional circumstances may prevent the execution of a judgment or allow the quashal of a writ of execution already issued: 1. Improvidently issued 2. Defective in substance 3. Issued against wrong party 4. Issued without authority 5. Inequitable due to change in situation of parties 6. Controversy was never validly submitted to court [Sandico v. Piguing, G.R. No. L26115 (1971)] 7. The writ varies the terms of the judgment, there is ambiguity in the terms of the judgment or when it is sought to be enforced against property exempt from execution [Limpin v. IAC, G.R. No 70987 (1987)] 8. There is substantial variance between the judgment and the writ of execution issued to enforce the same [Malacora v. CA, G.R. No. 51042 (1982)] [1 Regalado 453, 2010 Ed.] Note: These defects may be challenged on appeal or in certiorari, prohibition or mandamus actions. [Limpin v. IAC, G.R. No 70987 (1987)] i. Execution as a Matter of Right Execution as a matter of right is available in two instances 1. Upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. 2. Appeal has been duly perfected and finally resolved. [Sec. 1, Rule 39] How done 1. If no appeal is perfected upon the expiration of the period to appeal therefrom, on motion.

REMEDIAL LAW

2. If the appeal has been duly perfected and finally resolved, the execution may a. Be applied for in the court of origin, b. On motion of the judgment obligee, c. Submitting certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. [Sec. 1, Rule 39]

Necessity of hearing An ex parte motion for the issuance of the writ would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. However, where the losing party shows that subsequent facts had taken place which would render execution unjust, a hearing on the motion should be held. [Luzon Surety Co. v. Beson, G.R. No. L-26865-66 (1976)] General rule: Issuance of the writ of execution is a matter of right on the part of the prevailing party when the judgment or order becomes executory. [1 Regalado 453, 2010 Ed.] Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases: a. When the judgment has already been executed by the voluntary compliance thereof by the parties; b. When a judgment has been novated by the parties; c. When a petition for review is filed and preliminary injunction is granted; Also, when execution of the judgment has been enjoined by a higher court; d. When the judgment sought to be executed is conditional or incomplete; e. When facts and circumstances transpire which would render execution inequitable or unjust; f. When execution is sought more than five (5) years from its entry without it having been revived;

Page 149 of 525

U.P. LAW BOC

CIVIL PROCEDURE

g. When execution is sought against property exempt from execution; h. When refusal to execute the judgment has become imperative in the higher interest of justice. [1 Riano 647-648, 2014 Bantam Ed.] Supervening event doctrine A supervening event can be invoked for the modification or alteration of a final judgment. This refers to: a. Facts which transpire after judgment has become final and executory; b. New circumstances which developed after the judgment has acquired finality; c. Matters which the parties were not aware of prior to or during the trial as they were not yet in existence at that time. The supervening facts or circumstances must either a. Bear a direct effect upon the matters already litigated and settled, or b. Create a substantial change in the rights or relations of the parties therein which render execution of the final judgment unjust, impossible, or inequitable. [Abrigo, et al. v. Flores, et al., G.R. No. 160786 (2013)] ii. Discretionary Execution The issuance of a writ of execution is discretionary on the part of the court when it is for the a. Execution of a judgment or final order pending appeal, or b. Execution of several, separate, or partial judgments. [Sec. 2, Rule 39] Note: The period to appeal where an MR has been filed commences only upon the receipt of a copy of the order disposing of the MR. The pendency of the MR prevents the running of the period to appeal. When there is a pending MR, an order of execution pending appeal is improper and premature. [JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et al., G.R. No. 177121 (2009)]

REMEDIAL LAW

Discretionary execution is not applicable in the case of the CA A judgment of the CA cannot be executed pending appeal [Heirs of Justice JBL Reyes v. CA, G.R. No. 135180-81 (2000)] Where motion filed 1. In the trial court • While it has jurisdiction over the case and is in possession of the original record or record on appeal 2. In the appellate court • After the trial court has lost jurisdiction. [Sec. 2, Rule 39] Requisites 1. Motion filed by the prevailing party with notice to the adverse party, 2. Filed with either the trial court or appellate court, 3. Hearing on the motion for discretionary execution, 4. There must be good reasons to justify the discretionary execution, and 5. The good reasons must be stated in a special order. [Sec. 2, Rule 39] “Good reasons” Compelling circumstances justifying the immediate execution lest judgment becomes illusory, or the prevailing party may after the lapse of time become unable to enjoy it. [Far East Bank v. Toh, G.R. No. 144018 (2003)] Mere issuance of a bond to answer for damages is no longer considered a good reason for execution pending appeal. [Planters Products v. CA, G.R. No. 106052 (1999)] Mere allegation that the appeal is dilatory is not a good reason to merit discretionary execution. Nor is the fact that the prevailing party is in financial distress. [Intramuros Tennis Club vs CA, G.R. No. 135630 (2000)] Examples of good reasons: 1. Where the goods subject of the judgment stand to perish or deteriorate during the pendency of the appeal. [Yasuda v. CA, G.R. No. 112569 (2000)]

Page 150 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. The award of actual damages is for an amount fixed and certain, but not an award for moral and exemplary damages. [Radio Communications Inc. v. Lantin, G.R. No. L59311 (1985)] 3. Insolvency of a defeated party. [Hacienda Navarro v. Labrador, G.R. No. L-45912 (1938)] 4. The prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is nontransmissible, being for support. [De Leon v. Soriano, G.R. No. L-7648 (1954)] 5. Where defendants were exhausting their income and have no other property aside from proceeds of the property subject in litigation. [Lao v. Mencias, G.R. No. L23554 (1967)]

Stay of discretionary execution Discretionary execution issued may be stayed upon approval by the proper court of a sufficient supersedeas bond a. Filed by the party against whom it is directed, and b. Conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. Note: The bond may be proceeded against on motion with notice to the surety. [Sec. 3, Rule 39]

Restitution - The property itself must be returned to the judgment debtor, if the same is still in the possession of the judgment creditor, plus compensation to the former for the deprivation and use of the property. [1 Regalado 467, 2010 Ed.] Reparation of damages: a. If the purchaser at the public auction was the judgment creditor, pay the full value of the property at the time of its seizure plus interest b. If the purchaser at public auction was a third person, judgment creditor must pay the judgment debtor the amount realized from the sale with interest thereon; and c. If the judgment award was reduced on appeal, the judgment creditor must return to the judgment debtor only the excess which he received over and above that to which he is entitled under the final judgment, with interest on such excess. [Po Pauco v. Tan Juco, G.R. No. L-63188 (1990)] Remedy against discretionary execution The remedy is certiorari by Rule 65. Note: The fact that the losing party has also appealed from the judgment does not bar certiorari proceedings as the appeal could not be an adequate remedy from such premature execution. [Jaca v. Davao Lumber Co., G.R. No. L-25771 (1982)]

General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. [Sec. 3, Rule 39] Exception: Where the needs of the prevailing party are urgent, the Court can order immediate execution despite such supersedeas bond. [1 Regalado 466, 2010 Ed.] If judgment is reversed totally or partially, or annulled, on appeal or otherwise The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. [Sec. 5, Rule 39]

REMEDIAL LAW

c. How a Judgment is Executed i. Execution by Motion Independent Action

or

by

Modes of enforcement of execution Mode When enforced Within 5 years from the By motion date of entry of judgment After the lapse of 5 years from date of entry By independent and before it is barred action by the statute of limitations

Page 151 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The Statute of Limitations is 10 years from date of entry. [Art. 1144(3), CC]. [Sec. 6, Rule 39] Revival of judgment An action for revival of judgment is a procedural means of securing the execution of a previous judgment which has become dormant after the passage of 5 years without it being executed upon motion of the prevailing party. [Saligumba vs Palanog, 573 SCRA 8, 15-16 (2008)] The action must be filed within 10 years from the date the judgment became final since the action to enforce a judgment prescribes in 10 years from the finality of judgment. [Art. 1144(3), CC] A revived judgment is deemed a new judgment separate and distinct from the original judgment. It is not a continuation. [PNB v. Bondoc, G.R. No. L-20236 (1965)] How enforced A revived judgment may also be enforced the same way. [Sec. 6, Rule 39] Note: The 10-year prescriptive period commences to run from the date of finality of the revived judgment and not the original judgment. [PNB v. Bondoc, G.R. No. L-20236 (1965)] Time periods The time periods provided may be stayed by: a. Agreement of the parties for a definite time, b. Injunction, or c. Taking of an appeal or writ of error. [Yau vs Silverio, and Macapagal v. Gako, 543 SCRA 520, 529 (2008)] The periods shall not apply to: a. Special proceedings, and b. Judgments for support. [Rodil v. Benedicto, 95 SCRA 137, (1980) and Canonizado v. Benitez, 127 SCRA 610 (1984)]

REMEDIAL LAW

ii. Issuance and Contents of a Writ of Execution Contents of the writ of execution The writ of execution is issued in the name of the Republic of the Philippines and shall state: 1. The name of the court, 2. The case number and title, 3. The dispositive part of the subject judgment or order, and 4. Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms. [Sec. 8, Rule 39] Dispositive portion as subject of execution The writ of execution should conform to the dispositive portion of the decision to be executed. [Ex-Bataan Veterans Security Agency Inc vs NLRC, G.R. No. 121428 (1995)] Issuance of a writ of execution Effectivity Such writ shall continue in effect during the period within which the judgment may be enforced by motion. [Sec. 14, Rule 39] Note: A judgment may be enforced by motion within 5 years from date of entry of judgment. [Sec. 6, Rule 39] Against whom issued General rule: Only real parties in interest in an action are bound by judgment rendered therein and by the writs of execution. Exceptions: There are certain cases where the writ may be issued against non-parties a. One who is privy to judgment debtor can be reached by an order of execution and writ of demolition [Vda. De Medina v. Cruz, G.R. No. L-39272 (1988)] b. Issued against one who, not being originally a party to the case, submits his interest to the court for consideration in the same case and invites adjudication regarding said interest [Jose v. Blue, G.R. No. L-28646 (1971)] c. Where non-parties voluntarily signed the compromise agreement or voluntarily

Page 152 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

appeared before court [Rodriguez v. Alikpala, G.R. No. L-38314 (1974)] Return of a writ of execution a. Judgment satisfied within 30 days The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. [Sec. 14, Rule 39] b. Judgment not satisfied within 30 days 1. The officer shall report to the court and state the reason therefore. 2. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. 3. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties [Sec. 14, Rule 39] Entry of satisfaction of judgment Satisfaction of a judgment shall be entered by the COC in the court docket, and in the execution book, upon the: a. Return of a writ of execution showing the full satisfaction of the judgment, or b. Filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or c. Endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. [Sec. 44, Rule 39] The court may order the entry of satisfaction even if the judgment was satisfied in fact or otherwise than upon execution: a. With admission of satisfaction by the judgment obligee or counsel, or • On demand of the judgment obligor, such persons must execute and acknowledge, or indorse, the admission



After notice and upon motion, the court may order such persons to do so b. Without admission of satisfaction. [Sec. 45, Rule 39] Effect of death of a party to execution a. Death of the judgment obligee - Will not prevent the execution of judgment - Execution will issue upon the application of the executor, administrator, or successor in interest. b. Death of the judgment obligor - Will not prevent execution of judgment - Execution shall issue against his executor, administrator, or successor in interest. [Sec. 7, Rule 39] iii. Execution Money

of

Judgments

for

If the award is for payment of money, execution is enforced by 1. Immediate payment on demand, 2. Satisfaction by levy, or 3. Garnishment of debts and credits [Sec. 9, Rule 39] Note: Levy can only be made under Sec. 9 of Rule 39 IMMEDIATE PAYMENT ON DEMAND Procedure 1. The officer shall demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. 2. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. 3. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within

Page 153 of 525

U.P. LAW BOC

CIVIL PROCEDURE

the same day to the COC of the court that issued the writ. [Sec. 9(a), Rule 39] Procedure if the judgment obligee or his authorized representative is not present to receive payment 1. The judgment obligor shall deliver the aforesaid payment to the executing sheriff. • Note: In no case shall the executing sheriff demand that any payment by check be made payable to him. 2. The executing sheriff shall turn over all the amounts coming into his possession within the same day to the COC of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the. RTC of the locality. 3. The COC shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose COC shall then deliver said payment to the judgment obligee in satisfaction of the judgment. 4. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the COC for disposition as provided by law. [Sec. 9(a), Rule 39] SATISFACTION BY LEVY Definition Levy is the act whereby: a. A sheriff/officer sets apart or appropriates, b. For the purpose of satisfying the command of the writ, c. A part or the whole of the judgment debtor’s property. [Fiestan v. CA, G.R. No. 81552 (1990)] Condition before resort to satisfaction by levy If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee. [Sec. 9(b), Rule 39]

REMEDIAL LAW

Procedure 1. The officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution 2. The officer shall give the judgment obligor the option to choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. 3. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. Note: The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon and only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. How the levy is done Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. [Sec. 9(b), Rule 39] Note: If the judgment is for a sum of money 1. The judgment obligor dies before the levy has been made on the property: judgment cannot be enforced by writ of execution. Instead, it should be filed as a claim against the estate. 2. If the judgment obligor dies after the entry of judgment but before levy on his property: Execution will issue if it is for the recovery of real/personal property. [1 Regalado 475, 2010 Ed.] “Break-open” order An order from the court authorizing the sheriff to destroy, demolish or remove improvements on property subject of execution. [Sec. 10(d), Rule 39]

Page 154 of 525

U.P. LAW BOC

CIVIL PROCEDURE

A special order of demolition is an order from the court authorizing the sheriff to destroy, demolish or remove improvements on property subject of execution. It is issued upon hearing and reasonable notice. Without one, the sheriff cannot destroy, demolish, or remove any improvements on the property. [Guario v. Ragsac, A.M. No. P-08-2571 (2009); see Sec. 10(d), Rule 39] A writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possessionem and authorizes the sheriff, without need of securing a “break-open” order, to break open the premises where there is no occupant therein. [Arcadio v. Ylagan, A.M. No. 2734 (1986)] Note: The rationale is that the writ of execution itself is essentially an order to place the prevailing party in possession of the property. If the defendant refuses to surrender possession of the property to the prevailing party, the sheriff or other proper officer should oust him. No express order to this effect needs to be stated in the decision. [Guario v. Ragsac, A.M. No. P-08-2571 (2009)] GARNISHMENT OF DEBTS AND CREDITS The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the hands of third persons. Note: Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. [De la Rama v. Villarosa, G.R. No. L-19727 (1963)] Garnishment is not a violation of R.A. 1405 on the secrecy of bank deposits, as it does not involve an inquiry or examination of such deposit. [China Banking Corp. v. Ortega, G.R. No. L-34964 (1973)] What may be garnished The officer may levy on a. Debts due the judgment obligor and b. Other credits, including i. Bank deposits ii. Financial interests,

iii. iv. v.

REMEDIAL LAW

Royalties Commissions and Other personal property not capable of manual delivery in the possession or control of third parties. [Sec. 9(c), Rule 39]

Procedure 1. Notice shall be served upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. • Note: The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. 2. The garnishee shall make a written report to the court within 5 days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. • Note: Upon service of the writ of garnishment, the garnishee becomes a “virtual party” or “forced intervenor” to the case and the trial court thereby acquires jurisdiction to bind the garnishee to comply with its orders and processes [BPI v. Lee, G.R. No. 190144 (2012)] 3. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within 10 working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court. 4. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment obligee. 5. The executing sheriff shall observe the same procedure under Sec. 9(a), Rule 39

Page 155 of 525

U.P. LAW BOC

CIVIL PROCEDURE

with respect to delivery of payment to the judgment obligee. [Sec. 9(c), Rule 39] iv. Execution of Specific Acts

Judgments

for

Under Section 10, a party is directed to execute conveyance of land or to deliver deeds or other documents, or to perform any other specific acts in connection therewith but which acts can be performed by persons other than said party. [1 Regalado 486, 2010 Ed.] FOR CONVEYANCE OF REAL OF LAND OR PERSONAL PROPERTY Conditions 1. If a judgment directs a party to a. Execute a conveyance of land or personal property, or b. Deliver deeds or other documents, or c. Perform any other specific act in connection therewith, and 2. The party fails to comply within the time specified [Sec. 10(a), Rule 39] Procedure 1. The court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. 2. If real or personal property is situated within the Philippines, the court may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. [Sec. 10(a), Rule 39] It is only when reconveyance is no longer feasible (e.g. passed on to a buyer for value in good faith, dissipated, etc.) that the judgment obligor should pay the judgment obligee the fair market value of the property. [Raymundo v. Galen Realty and Mining Corp., G.R. No. 191594 (2013)]

REMEDIAL LAW

FOR SALE OF REAL OR PERSONAL PROPERTY If the judgment be for the sale of real or personal property, [an order for execution shall be issued] to: a. Sell such property, describing it, and b. Apply the proceeds in conformity with the judgment. [ Sec. 10(b), Rule 39] FOR DELIVERY OR RESTITUTION OF REAL PROPERTY 1. The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within 3 working days, and restore possession thereof to the judgment obligee. 2. Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. 3. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. [Sec. 10(c), Rule 39] REMOVAL OF IMPROVEMENTS ON PROPERTY SUBJECT OF EXECUTION When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except: 1. Upon special order of the court, issued upon motion of the judgment obligee after due hearing and 2. After the former has failed to remove the same within a reasonable time fixed by the court. [Sec. 10(d), Rule 39]

Page 156 of 525

U.P. LAW BOC

CIVIL PROCEDURE

DELIVERY OF PERSONAL PROPERTY In judgments for the delivery of personal property, the officer shall: a. Take possession of the same, and b. Deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. [Sec. 10(e), Rule 39] v. Execution of Special Judgments A special judgment under Section 12 requires the performance of any act, other than the payment of money or the sale or delivery or real or personal property, which a party must personally do because his personal qualifications and circumstances have been taken into consideration. [1 Regalado 486, 2010 Ed.] When proper A judgment requires performance of any other act than those mentioned in Secs. 9 and 10 (payment of money or sale or delivery of property). [Sec. 11, Rule 39] Procedure A certified copy of the judgment shall be 1. Attached to the writ of execution and 2. Served by the officer upon a. The party against whom the same is rendered, or b. Any other person required thereby, or by law, to obey the same, and 3. Such party or person may be punished for contempt if he disobeys such judgment [Sec. 11, Rule 39] Examples: a. A judgment in mandamus to reinstate petitioner as chief clinic of the hospital [Vital-Gozon v. CA, G.R. No. 101428 (1992)] b. A judgment directing the defendant to remove a fence from a certain place is a special judgment [Marquez v. Marquez, G.R. No. 47792 (1941)] vi. Effect of Levy on Third Person The levy on execution shall create a lien in favor of the judgment obligee over the right,

REMEDIAL LAW

title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. [Sec. 12, Rule 39] Note: The power of the court in executing judgments extends only over properties unquestionably belonging to the judgment debtor. [Corpuz v. Pascua, A.M. No. P-112972 (2011)] A duly registered levy on attachment or execution is preferred over a prior unregistered sale. Under the Torrens system, the auction sale of property retroacts to the date the levy was registered; now, under Secs. 51 and 2 of P.D. 1529, the act of registration is the operative act to convey or affect the land insofar as third persons are concerned. [Du v. Stronghold Insurance Co. Inc., G.R. No. 156580 (2004)]

d. Properties Execution

Exempt

from

General rule: The following property, and no other, shall be exempt from execution: a. The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith b. Ordinary tools and implements personally used by him in his trade, employment, or livelihood c. Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation d. His necessary clothing and articles for ordinary personal use, excluding jewelry e. Household furniture and utensils necessary for house-keeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding PHP 100,000 f. Provisions for individual or family use sufficient for four months g. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers,

Page 157 of 525

U.P. LAW BOC

CIVIL PROCEDURE

surveyors, clergymen, teachers, and other professionals, not exceeding PHP 300,000 in value h. One fishing boat and accessories not exceeding the total value of PHP 100,000 owned by a fisherman and by the lawful use of which he earns his livelihood i. So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family j. Lettered gravestones k. Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance l. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government m. Properties specially exempted by law [Sec. 13, Rule 39] Examples of item (m) above 1. Property mortgaged to the DBP [Sec. 26, CA 458] 2. Savings of national prisoners deposited with the postal savings bank [Act. 2489] 3. Benefits from private retirement systems of companies and establishments with limitations [R.A. 4917] 4. Laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [Art. 1708, CC] 5. Benefit payments from SSS [Sec. 16, R.A. 1161, as amended] Exception: No article or species of property mentioned in Sec. 13, Rule 39 (enumerated above) shall be exempt from execution issued upon a a. Judgment recovered for its price or b. Judgment of foreclosure of a mortgage thereon [Sec. 13, Rule 39] The exemptions must be claimed, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. [Herrera v. Mcmicking, G.R. No. L5329 (1909)]

REMEDIAL LAW

e. Proceedings Were Property is Claimed by Third Persons; in Relation to Third Party Claim in Attachment and Replevin Sec. 16, Rule 39 and other provisions providing a mode for recovering property alleged to have been wrongfully taken by sheriff pursuant to a writ of execution or other process, refer to a stranger to an action. [Tillson v. CA, G.R. No. 89870 (1991)] Remedies of third-party claimant a. Summary hearing before the court which authorized the execution b. “Terceria” or third-party claim filed with the sheriff [Sec. 16, Rule 39] c. Action for damages on the bond posted by the judgment creditor d. Independent Reinvindicatory action Note: Such are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy v. Discaya, G.R. No. 86301 (1990)] For a third-party claim to be sufficient a. Must be filed by a person other than the defendant or his agent, at any time before sale b. Must be under oath or supported by affidavit stating the claimant’s title to, or right of possession of, the property, and grounds therefor c. Must be served upon the officer making levy and a copy thereof upon the judgment creditor [Sec. 16, Rule 39] On spouses A spouse who was not a party to the suit but whose conjugal property is being executed because the other spouse is the judgment obligor is not considered a stranger to the suit and cannot file a separate action to question the execution since they could have easily questioned the execution in the main case itself. [1 Regalado 501, 2010 Ed.]

Page 158 of 525

U.P. LAW BOC

CIVIL PROCEDURE

The institution of a separate action was allowed when the property was the exclusive or paraphernal property of a spouse who was not a party to the case the judgment wherein was sought to be executed. In such a situation, the aggrieved spouse was deemed to be a stranger to that main action. [Ching v. CA, G.R. No. 118830 (2003)] Effect of third-party claim The officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. [Sec. 16, Rule 39] SUMMARY HEARING BEFORE COURT AUTHORIZING EXECUTION A third-person whose property was seized by a sheriff to answer for an obligation of a judgment debtor may invoke the supervisory power of the court which authorized such execution. [Sy v. Discaya, G.R. No. 86301 (1990)] Procedure a. Claimant files application b. Court conducts summary hearing, and c. The court may: 1. Command that the property be released from the mistaken levy and restored to rightful owner or possessor, or 2. If the claimant's proofs do not persuade, the claim will be denied by the court. The court determination is limited only to a determination of whether the sheriff has acted rightly or wrongly in performance of his duties. The court does not and cannot pass upon the question of title. [Sy v. Discaya, G.R. No. 86301 (1990)] TERCERIA When to file Any time, as long as: a. Sheriff has the possession of the property levied upon, or

REMEDIAL LAW

b. Before the property shall have been sold under execution. Procedure Claimant serves on the officer making levy an affidavit of his title and a copy thereof to judgment creditor. [Sec. 16, Rule 39] Bond To enforce a claim for damages against the bond, the action must be filed within 120 days from the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. When bond not required When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required. Note: If sheriff or levying officer is sued for damages, a. He shall be represented by the Solicitor General, and b. If held liable, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. [Sec. 16, Rule 39] The right of a third-party claimant to file a terceria is founded on his title or right of possession. Corollary thereto, before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the restoration thereof to its rightful owner, the claimant must first unmistakably establish his ownership or right of possession thereon. [Villasi v. Garcia, G.R. No. 190106 (2014)] REIVINDICATORY ACTION Nothing contained in Sec. 16, Rule 39 shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant

Page 159 of 525

U.P. LAW BOC

CIVIL PROCEDURE

who filed a frivolous or plainly spurious claim. [Sec. 16, Rule 39] Procedure He must institute an action, distinct and separate from that which the judgment is being enforced, with the court of competent jurisdiction • In such ation, the validity and sufficiency of title of the claimant will be resolved. • A writ of preliminary injunction against the sheriff may be issued. Note: No need to file a claim in the court which issued a writ. The latter is not a condition sine qua non for the former. [Sy v. Discaya, G.R. No. 86301 (1990)] IN RE: THIRD PARTY CLAIMS IN ATTACHMENT AND REPLEVIN If the claim is filed under Sec. 16, Rule 39, it must be filed in a separate action instituted for the purpose. Intervention is no longer allowed since judgment has already been rendered. [1 Regalado 500-501, 2010 Ed.] If it is filed under Sec. 14, Rule 57 (Attachment) or under Sec. 7, Rule 60 (Replevin), the claim may be litigated in the same action involved or in a separate suit. Intervention is allowed. [1 Regalado 501, 2010 Ed.] The reason for the difference is that the judgment in the case subject of Sec. 16, Rule 39 is already final and executory, while Rules 57 and 60 involve actions still pending in the trial court. [1 Regalado 501, 2010 Ed.]

f. Rules on Redemption When available Only for real property, since nothing in the ROC provides for redemption of personal property. [Sec. 27, Rule 39] Who may redeem a. Judgment obligor, or his successor in interest in the whole or any part of the property

REMEDIAL LAW

b. A creditor (redemptioner) having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. [Sec. 27, Rule 39]

If the lien of the creditor is prior to the judgment under which the property was sold: a. He is not a redemptioner; b. He cannot redeem since his interests in his lien are fully protected. Any purchaser at a public auction takes the same subject to such prior lien which he has to satisfy. [1 Regalado 512, 2010 Ed.] Proof required of redemptioner A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a. A copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, b. If he redeems upon a mortgage or other lien, 1. A memorandum of the record thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and 2. An affidavit executed by him or his agent, showing the amount then actually due on the lien. [Sec. 30, Rule 39] When redemption can be made Who When Within 1 year from the By the judgment date of registration of obligor the certificate of sale Within 1 year from the By first date of registration of redemptioner the certificate of sale By all subsequent Within 60 days from redemptioners last redemption [Sec. 28, Rule 39] Note: There is no extension or interruption of redemption period. [Sec. 28, Rule 39]

Page 160 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Redemption price a. By the judgment debtor or first redemptioner: 1. Purchase price, 2. 1% interest thereon up to time of redemption, 3. Any amount of assessments or taxes which purchaser may have paid after purchase and interest on such last named amount at the same rate, and 4. If the purchaser is also a creditor having a prior lien to that of a redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, also with interest. b. By all subsequent redemptioners: 1. Amount paid on last redemption, 2. 2% interest thereon, 3. Any amount of assessments or taxes which purchaser may have paid after purchase as well as interest on such last named amount at the same rate, and 4. The amount of any liens held by said last redemptioner prior to his own, also with interest. [Sec. 28, Rule 39] If redemption is made by the judgment obligor a. No further redemption is allowed, and b. He is restored to his estate. [Sec. 29, Rule 39] Note: When a judgment debtor redeems the property, what is effected is the elimination of the lien created by the levy on attachment or judgment on the registration of mortgage thereon. Note that he never lost ownership so there is no recovery of ownership. [1 Regalado 513, 2010 Ed.] Payment of redemption price may be made to the: a. Purchaser or redemptioner, or b. For him to the officer who made the sale [Sec. 29, Rule 39]

REMEDIAL LAW

Duties upon redemption The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption. a. Acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. b. Filed and recorded in the registry of deeds of the place in which the property is situated, and c. The registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. [Sec. 29, Rule 39] RIGHTS PENDING REDEMPTION Right of judgment obligee Apply for injunction to restrain the commission of waste on the property. [Sec. 31, Rule 39] It is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to a. Continue to use it in the same manner in which it was previously used b. Use it in the ordinary course of husbandry, or c. Make the necessary repairs to buildings thereon while he occupies the property [Sec. 31, Rule 39] Expiration of period to redeem a. II no redemption be made within 1 year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, b. If so redeemed whenever 60 days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession. General Rule: Under the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy -

Page 161 of 525

U.P. LAW BOC

CIVIL PROCEDURE

possession of the property shall be given to the purchaser or last redemptioner by the same officer Exception: A third party is actually holding the property adversely to the judgment obligor. [Sec. 33, Rule 39] Two documents which the sheriff executes in case of real property a. Certificate of sale 1. Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: i. A particular description of the real property sold; ii. The price paid for each distinct lot or parcel; iii. The whole price paid by him; and iv. A statement that the right of redemption expires one year from the date of the registration of the certificate of sale 2. Must be registered in the registry of deeds of the place where the property is situated. [Sec. 25, Rule 39] - From registration of said certificate, the 1 year redemption period starts [Sec. 28, Rule 39] 3. Certificate of sale after execution sale is merely a memorial of the fact of sale and does not operate as conveyance [1 Regalado 508, 2010 Ed.] b. Deed of Conveyance 1. Executed upon the expiration of the period to redeem. Note: The purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. 2. Executed by the officer making the sale. 3. Under the expiration of the right of redemption, [Sec. 33, Rule 39] Note: Hence, the certificate of sale of real property does not confer any right to the possession or ownership, of the real property purchased. It is the deed of sale executed by

REMEDIAL LAW

the sheriff at the expiration of the period of redemption which entitles the purchaser to possession of the property sold. [1 Regalado 508, 2010 Ed.] Recovery of purchase price if sale not effective a. If the purchaser of real property sold on execution, or his successor in interest, • Fails to recover the possession thereof, or • Is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or b. Because the judgment has been reserved or set aside, or c. Because the property sold was exempt from execution, or d. Because a third person has vindicated his claim, to the property, The purchaser may, on motion in the same action or in a separate action, a. Recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or b. Have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. Note: The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. [Sec. 34, Rule 39] Note: A purchaser’s right of possession is recognized only as against the judgment debtor and his successor-in-interest. It is not so against persons whose right of possession is adverse. When a third party is in possession of the property purchased, the possession is presumed to be based on just title - a presumption which may be overcome by the purchaser in a judicial proceeding for recovery of the property. [Villanueva v. Cherdan Lending Investors Corp., G.R. No. 177881 (2010)]

Page 162 of 525

U.P. LAW BOC

CIVIL PROCEDURE

g. Examination of Judgment Obligor When Judgment is Unsatisfied When applicable When the return of the writ issued against property of a judgment obligor shows that judgment remains unsatisfied. [Sec. 36, Rule 39] Procedure The judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment a. Requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and b. Proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfactions of the judgment. When judgment obligor not required to appear/ be examined a. When he is required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. [Sec. 36, Rule 39] b. After the lapse of the five years within which a judgment may be enforced by motion. [Umali v. Coquia, G.R. No. L46303 (1988)] Order for payment in fixed monthly installments If upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that: a. He pay the judgment in fixed monthly installments, and b. Upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. [Sec. 40, Rule 39]

REMEDIAL LAW

h. Examination of Obligor Judgment Obligor

of

When applicable a. When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and b. Upon proof that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him. [Sec. 37, Rule 39] Procedure The court may, by an order a. Require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and b. Be examined concerning the same. Effect of order The service of the order shall a. Bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service, and b. The court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. [Sec. 37, Rule 39] Note: This is not applicable if there is no issue concerning the indebtedness of the bank and there is no denial by the depositor of the existence of the deposit with the bank which is considered a credit in favor of the depositor against the bank. [PCIB v. CA, G.R. No. 84526 (1991)] When alleged obligor denies debt or claims property The court may a. Authorize the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt,

Page 163 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. Forbid a transfer or other disposition of such interest or debt within 120 days from notice of the order, and c. May punish disobedience of such order as for contempt. [Sec. 43, Rule 39] Impropriety of an action for damages as a remedy Where the writ of execution is unsatisfied, the remedy to enforce it is Secs. 38-39, and not a complaint for damages. [Phil. Transmarine Carriers v. CA, G.R. No. 122346 (2000)] OTHER REMEDIES Order for application of property or income The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property. [Sec. 40, Rule 39] After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in Sec. 9, Rule 39 and the sheriffs receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution [Sec. 39, Rule 39] Appointment of receiver The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Sec. 41, Rule 39] If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to

REMEDIAL LAW

sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. [Sec. 42, Rule 39]

i. Effect of Judgment or Final Orders Immutability of judgments A judgment that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. [PNB v. Spouses Maranon, G.R. No. 189316 (2013)] Rationale a. To avoid delay in the administration of justice, and procedurally to make orderly the discharge of judicial business, and b. To put an end to judicial controversies at the risk of occasional errors. [PCI Leasing and Finance, Inc. v. Milan, G.R. No. 151215 (2010)] RES JUDICATA Dual aspect a. Bar by former judgment 1. The judgment or final order is a bar to the prosecution of a subsequent action based on the same claim or cause of action 2. Described by Sec. 47, pars. (a) and (b), Rule 39 3. Also known as “Estoppel by Verdict” b. Conclusiveness of judgment 1. The judgment or final order precludes the relitigation of particular issues or facts on a different demand or cause of action 2. Described by Sec. 47, par. (c), Rule 39 3. Also known as the Rule of Auter Action Pendant [1 Riano 541, 2011 Ed.; 1 Regalado 529, 2010 Ed.]

Page 164 of 525

U.P. LAW BOC

Bar by former judgment Requires identity of parties, subject matter, and causes of action

CIVIL PROCEDURE

Conclusiveness of judgment There is only identity of parties and subject matter Causes of action are different

Absolute Bar to: (a) all matters Conclusive as to directly adjudged; matters directly and adjudged and (b) those that might actually litigated have been adjudged Claim Preclusion Issue Preclusion [1 Riano 683-684, 2011 Ed.] The rule of res judicata applies to final decisions of quasi-judicial agencies and to judgments rendered in probate proceedings [1 Regalado 534, 2010 Ed.] BAR BY FORMER JUDGMENT The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. [Machoca v. Cariaga, G.R. No. 75109-10 (1989)] Requisites a. A final judgment or order b. Jurisdiction over the subject matter and the parties by the court rendering judgment c. Judgment upon merits d. Between the two cases, there is identity of: 1. Parties 2. Subject matter 3. Cause of action [1 Riano 430, 2011 Ed.] General rule: For res judicata to apply, trial must be made on the merits of the case [1 Regalado 530, 2010 Ed.] Exception: Sec. 3, Rule 17: Dismissal upon fault of plaintiff - If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to

REMEDIAL LAW

comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court [Development Bank v. CA, G.R. No. 110203 (2001)] Res judicata in judgments in rem Judgments or final Conclusive as to order Against a specific Title of the thing thing Probate of a will or administration of the The will or estate of a deceased administration person In respect to the personal, political, or legal condition or Condition, status or status of a particular relationship of the person or his person relationship to another. [1 Riano 542, 2011 Ed.] Res judicata in judgments in personam In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between a. The parties and b. Their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity [Sec. 47(b), Rule 39] CONCLUSIVENESS OF JUDGMENT Any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose

Page 165 of 525

U.P. LAW BOC

CIVIL PROCEDURE

or subject matter of the two suits is the same. [Machoca v. Cariaga, G.R. No. 75109-10 (1989)]

(1971); Vergara v. Roque, G.R. No. L-32984 (1977)]

REMEDIAL LAW

case need not be followed as a precedent in subsequent litigation between other parties. [1 Riano 544, 2011 Ed]

the same legal issue is raised. [CDCP Mining Corp. v. CIR, G.R. No. 122213 (2005)]

Requisites a. A final judgment or order b. Jurisdiction over the subject matter and the parties by the court rendering it c. Judgment upon merits d. Between the two cases, there is identity of: 1. Parties, and 2. Issues. [1 Regalado 529-531, 2010 Ed.]

1.

Res judicata, law of the case, and stare decisis a. Stare decisis - When the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. [1 Riano 533, 2011 Ed.] b. Law of the case - Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. [1 Riano 544, 2011 Ed.]

A valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties the underlying cause of action are concerned so long as it is convincingly shown that: a. There has been an opportunity for a fair hearing before a court of competent jurisdiction, b. Trial upon registered proceedings has been conducted, and c. There is nothing to indicate either a prejudice in court and in the system of laws under which it is sitting or fraud in procuring the judgment. [Philippine Aluminum v. Fasgi Enterprises, G.R. No. 137378 (2000)]

Res judicata The parties and the causes of action in both actions are identical or substantially the same. [1 Regalado 530, 2010 Ed., citing Yusingco v.Ong Hing Lian, G.R. No. L-26523

Law of the case Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent. The ruling adhered to in the particular

Stare decisis Once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where

Enforcement and Effect of Foreign Judgments or Final Orders

Purpose a. To avoid repetitive litigation on claims and issues, b. Prevent harassment of the parties, and c. Avoid undue imposition on the courts. [1 Regalado 536, 2010 Ed.] Basis This policy of preclusion rests on principles of comity, utility and convenience of nations. [1 Regalado 536, 2010 Ed., see also Raytheon International, Inc. v. Rouzie, Jr., G.R. No. 162894 (2008)] As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause. [Sec. 2, Art. II, 1987 Constitution, 1

Page 166 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

Regalado 536, 2010 Ed. citing Raytheon v. Rouzie, G.R. No. 162894 (2008)] Nature The civil action for enforcement of a foreign judgment is one incapable of pecuniary estimation. • Although the foreign judgment may result in recovery of money or property, the cause of action and subject matter of the civil action is the foreign judgment itself (and not, as in an ordinary action for monetary relief, the violation of a right through an act or omission). The matter left for proof is the foreign judgment itself, not the facts from which it prescinds. [1 Regalado 536, 2010 Ed.] Effect of foreign judgments [Sec. 48, Rule 39] Nature Effect In judgments Judgment is against a specific conclusive upon the thing (in rem) title to the thing Judgment is presumptive In judgments evidence of a right as against a person (in between parties and personam) their successors-ininterest by a subsequent title In both cases, judgment may be repelled by evidence of a. Want of jurisdiction, b. Want of notice, c. Collusion, d. Fraud, or e. Clear mistake of law or fact. [Sec. 48, Rule 39] A foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum. [Asiavest Merchant Bankers v CA, G.R. No 110263 (2001)]

Before our courts can give the effect of res judicata to a foreign judgment, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds under Section 48 of Rule 39 of the ROC. [Roehr v. Rodriguez, G.R. No. 142480 (2003)]

D.

PROVISIONAL REMEDIES

1. NATURE AND PURPOSE Nature of provisional remedies They are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and are dependent for their application on the existence of a principal action. [1 Regalado 684, 2010 Ed.] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65. [PahilaGarrido v. Tortogo, et. al., G.R. No. 156358 (2002)] Purpose of provisional remedies a. To preserve or protect litigants’ rights or interests during the pendency of the principal action; b. To secure the judgment; c. To preserve the status quo of the the things subject to the action or the relation between the parties; and d. To preserve the subject matter of the action. [2 Riano 2, 2016 Bantam Ed.] Kinds of provisional remedies a. Preliminary attachment [Rule 57] b. Preliminary injunction [Rule 58] c. Receivership [Rule 59] d. Replevin [Rule 60] e. Support pendente lite [Rule 61]

Page 167 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The enumeration above is not exclusive. The court may invoke its equity jurisdiction and order the appropriate reliefs during the pendency of an action. [Reyes v. Lim, G.R. No. 134241 (2003)]

2. JURISDICTION OVER PROVISIONAL REMEDIES The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. [1 Regalado 685, 2010 Ed.] Thus, where the main case is pending in a specific RTC, it is the same court, not any other court, which may grant the provisional remedy applied for. [2 Riano 5, 2016 Bantam Ed.] The authority to grant provisional remedies is not the sole prerogative of superior courts. Inferior courts may also grant all appropriate provisional remedies in an action pending with it and is within its jurisdiction. In fact, the jurisdiction of the MTC includes the “grant of provisional remedies in the proper cases.” [Sec. 33 (1), B.P. 129]

3. PRELIMINARY ATTACHMENT Definition Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that can be recovered by the plaintiff or any proper party. [Northern Islands v. Garcia, GR No. 203240 (2015)] Purposes 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying said judgment, as in the grounds stated in Sec. 1(a) to (e), Rule 57, or 2. To acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be effected, as in Sec.

REMEDIAL LAW

1(f), Rule 57 [PCIB v. Alejandro, G.R. No. 175587 (2007)] Note: Being a mere ancillary to a principal proceeding, the attachment must fail if the principal suit itself cannot be maintained. Another consequence is that where the main action is appealed, the attachment is also considered appealed and is removed from the jurisdiction of the lower court. [2 Riano 12, 2016 Bantam Ed.]

a. Grounds for Issuance of Writ of Attachment When Preliminary Attachment may be Applied For An order for preliminary attachment may be applied for a. At the commencement of the action, or b. At any time before entry of judgement. [Sec. 1, Rule 57] Who may apply It may be applied for by a. The plaintiff, or b. Any proper party. [Sec. 1, Rule 57] • Any proper party includes a defendant who filed a counterclaim, cross-claim, or a third party complaint [Sec. 1, Rule 3] Grant of Preliminary Attachment is Discretionary The grant of the remedy of preliminary attachment is addressed to judicial discretion. There is nothing in Rule 57 which indicates that the grant of such writ is a matter of right on the part of the applicant. [2 Riano 13, 2016 Bantam Ed.] Strict Construction Since preliminary attachment opens up the debtor to humiliation and annoyance, it may only be granted when necessary and as a last resort on concrete and specific grounds. [2 Riano 14, 2016 Bantam Ed.] Grounds for Issuance Under Sec. 1, Rule 57, the grounds for a preliminary attachment are, to wit:

Page 168 of 525

U.P. LAW BOC

CIVIL PROCEDURE

a. For the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors. • It is not sufficient to show that the party against whom the writ is sought to be issued is about to depart from the country. It must be shown that such departure was with “intent to defraud his creditors”. [2 Riano 20, 2016 Bantam Ed.]

1. Service to defendants where his identity or whereabouts are unknown. [Sec. 16, Rule 14] 2. Service when the defendant does not reside and is not found in the Philippines, and the action o Affects the personal status of the plaintiff or o Relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or o In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or o The property of the defendant has been attached within the Philippines. [Sec. 17, Rule 14] 3. Service to juridical entities not registered or have no resident agent but have transacted or are doing business in the Philippines [Sec. 14, Rule 14]

b. For money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, 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. • A fiduciary duty is one “founded in trust and confidence”. [2 Riano 21, 2016 Bantam Ed.] c.

To recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person.

d. Against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof. e. Against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. f.

Against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. • Under the Amended Rules, summons can be served via publication only in the following cases:

REMEDIAL LAW

Note: The aforementioned grounds are exclusive in nature. No other ground can serve as the basis of a preliminary attachment. [PCIB v. Alejandro, G.R. No. 175587 (2007)] Three stages in the grant of preliminary attachment a. Court issues the order granting the application, b. Writ of attachment issues pursuant to the order granting the writ, and c. The writ is implemented. [1 Regalado 692, 2010 Ed.] • In this stage, the court must have already acquired jurisdiction over the person of the defendant because the court has no power over the property of the defendant without such jurisdiction. Hence, the rule on prior/contemporaneous service of summons (to be discussed below). [2 Riano 33, 2016 Bantam Ed.]

Page 169 of 525

U.P. LAW BOC

b. Requisites for Order of Attachment

CIVIL PROCEDURE

Issuance of Preliminary

In order for the court to issue an order of preliminary attachment, the applicant must file a motion with notice and hearing by the court in which the action is pending. However, the court may nonetheless issue an order of attachment ex parte. [Sec. 2, Rule 57] Requisites Regardless of whether the order was granted through motion or ex parte, the following are the requisites for the issuance of an order of preliminary attachment, to wit: a. The applicant, or some other who personally knows the facts, must file an affidavit. b. Applicant must post a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ. [Secs. 3-4, Rule 57]

c. Issuance and Contents of Order of Attachment; Affidavit and Bond Contents of the order of attachment It must: a. Require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand b. Fix the amount of deposit or bond, which may be the 1. Amount sufficient to satisfy the applicant’s demand or 2. Value of the property to be attached as stated by the applicant, exclusive of costs. [Sec. 2, Rule 57] First requisite of an order of attachment Affidavit An order of attachment shall be granted only when the affidavit of the applicant, or of some other person who personally knows the facts, alleges that: a. A sufficient cause of action exists,

REMEDIAL LAW

b. The case is one of those mentioned in Rule 57, Sec. 1 c. There is no other sufficient security for the claim sought to be enforced by the action, and • Therefore, if a mortgage exists to secure the obligation, a writ of preliminary attachment cannot be granted. [2 Riano 30, 2016 Bantam Ed.] d. the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. [Sec. 3, Rule 57]

Second requisite of an order of attachment - Bond The party applying for the order of attachment must likewise give a bond executed to the adverse party. The amount of such bond is the amount fixed by the court in the order of attachment. [Sec. 4, Rule 57] Conditions of applicant’s bond The party applying for the order will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. [Sec. 4, Rule 57] Note: The bond shall only be applied to all damages and costs sustained due to the attachment. [Excellent Quality Apparel v. Visayan Surety & Insurance Corp., G.R. No. 21205 (2015)]

d. Rule on Prior or Contemporaneous Service of Summons General rule: The sheriff is not allowed to make a levy on attachment if such levy is not made with prior or contemporaneous service of the following: a. Service of summons b. Copy of the complaint c. Application for attachment d. Applicant’s affidavit and bond, and

Page 170 of 525

U.P. LAW BOC

CIVIL PROCEDURE

e. Order for writ of attachment. [Sec. 5, Rule 57]

b. c.

Exceptions: Levy on attachment would be justified even without prior or contemporaneous summons under the following circumstances: a. Summons could not be served personally or by substituted service despite diligent efforts, or b. Defendant is a resident of the Philippines temporarily absent therefrom, or c. Defendant is a non-resident of the Philippines, or d. The action is in rem or quasi in rem. [Sec. 5, Rule 57]

e. Manner of Attaching Real and Personal Property; When Property Attached is Claimed by Third Person General rule: The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand. • The sheriff is precluded from attaching any property exempt from execution, such as those enumerated in Sec. 13, Rule 39. [2 Riano 35, 2016 Bantam Ed.] Exception: The sheriff shall not enforce the writ if the adverse party makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. [Sec. 5, Rule 57] Sheriff’s return After enforcing the writ, the sheriff must without delay, make a return to the court issuing the writ, with: a. A full statement of his proceedings,

REMEDIAL LAW

A complete inventory of the property attached, ang Any counter-bond given by the party against whom attachment is issued. [Sec. 6, Rule 57]

ATTACHMENT OF SPECIFIC KINDS OF PROPERTY a. Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, 1. By filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province • Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. 2. The registrar of deeds must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the

Page 171 of 525

U.P. LAW BOC

b.

c.

d.

e.

CIVIL PROCEDURE

identification of the land or interest to be affected shall be included in the registration of such attachment Personal property capable of manual delivery, • By taking and safely keeping it in his custody, after issuing the corresponding receipt therefor Stocks or shares, or an interest in stocks or shares, of any corporation or company, • By leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ, Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, • By leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, 1. By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. 2. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. [Sec. 7, Rule 57] Note: The attachment of the interest of an heir, legatee, or devisee in the property

REMEDIAL LAW

belonging to the estate of a decedent shall not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purposes of administration. [Sec. 9, Rule 57] Attachment of property in custodia legis a. A copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and b. Notice of the attachment served upon the custodian of such property. [Sec. 7, Rule 57] A previously attached property may also be subsequently attached. What will arise in this event will be a priority in the liens, where the first attachment shall have priority over subsequent attachments. [2 Riano 38, 2016 Bantam Ed.] Examination of party whose property whose property is attached or of persons indebted to him The Rules of Court empower the court to examine under oath the party whose property is attached for the purpose of giving information respecting his property. Also, all other persons in possession of property or credit belonging to the person whose property is attached may also be required to appear and be examined under oath. [Sec. 10, Rule 57] When property attached is being claimed by third persons (Terceria, et al.) A third person who has a claim to the property attached may avail of the following remedies: a. File terceria or third-party claim 1. By making an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and 2. Serving such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party. [Sec. 14, Rule 57] b. File an independent action to recover property. [Imani v. Metropolitan Bank &

Page 172 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

Trust Company, G.R. No.187023 (2010)]; or c. File motion for intervention (available only before judgment is rendered) [Sec. 1, Rule 19] Note: The last method was allowed in the case of Gopiao v. Metropolitan Bank & Trust Co. [G.R. No. 188931 (2014)]

Bond for issuance vs bond for lifting a. Bond for issuance of writ [Sec. 4, Rule 57] – This is for damages by reason of the issuance of the writ. b. Bond for lifting of writ [Secs. 5 and 12, Rule 57] – This is to secure the payment of the judgment to be recovered. [1 Regalado 709, 2010 Ed.]

f. Discharge of Attachment and the Counter-bond

Only the defendant or party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counter-bond under Sec. 12. [KO Glass v. Valenzuela, G.R. No. L-48756 (1982)]

Discharge of attachment and Counter-bond After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. [Sec. 12, Rule 57] Ways of discharging attachment a. Counter-bond [Sec. 12, Rule 57] b. Motion for discharge [Sec. 13, Rule 57] Grounds for discharge a. Debtor has posted a counter-bond or has made the requisite cash deposit. [Sec. 12, Rule 57] • The mere posting of a counter-bond does not automatically discharge the writ of attachment. It is only after due notice and hearing and after the judge orders the discharge of the attachment that the same is properly discharged. [2 Riano 42, 2016 Bantam Ed.] b. Attachment was improperly or irregularly issued [Sec. 13, Rule 57] 1. As where there was no ground for attachment, or 2. The affidavit and/or bond filed are defective or insufficient. c. Judgment is rendered against attaching creditor. [Sec. 19, Rule 57] d. Attachment is excessive; but the discharge shall be limited to the excess. [Sec. 13, Rule 57] e. Property attached is exempt from execution. [1 Regalado 709, 2010 Ed.]

Effect of discharge of the attachment Upon the discharge of the attachment, the property attached shall be delivered to the party making the deposit or giving the counterbond or the person appearing on his behalf. [2 Riano 44, 2016 Bantam Ed.] Obviously, such is also the effect when the discharge was made through a motion alleging the grounds in Sec. 13, Rule 57. Effect of dissolution of preliminary attachment on plaintiff’s attachment bond a. Dissolution of preliminary attachment upon security given, or a showing if its irregular issuance, does not operate to discharge the sureties on the attachment bond [Davao Light and Power Co. v. CA, G.R. No. 93262 (1991)] • The bond is conditioned that the applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that applicant was not entitled thereto. [Sec. 4, Rule 57] • Until that determination is made, as to applicant’s entitlement to attachment, his bond must stand and cannot be withdrawn. [Mindanao Savings & Loan Association Inc v. CA, G.R. No. 84481 (1989)] Claim for damages on account of improper, irregular, or excessive attachment a. When to be filed 1. Before trial, or

Page 173 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Before appeal is perfected, or 3. Before the judgment becomes executory b. Requirements for damages to be awarded 1. Due notice to the attaching party and his surety or sureties, 2. Setting forth the facts showing the right of the party to damages and the amount thereof. Note: Damages may be awarded only after the proper hearing, and shall be included in the judgment on the main case. [Sec. 20, Rule 57]

g. Satisfaction of Judgment Out of Property Attached If judgment be in favor of the attaching party General rule: If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose, in the following manner: a. By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment b. If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those of the clerk of the court c. By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.

REMEDIAL LAW

Exception: Even before judgement is entered in favor of the attaching party, the court may order such property to be sold at public auction in such manner as the court may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the: a. Property attached is perishable, or b. Interests of all the parties to the action will be subserved by the sale thereof. [Sec. 11, Rule 57] If judgement be against the attaching party All the proceeds of sales and money collected by the sheriff under the order of attachment, and all property attached remaining in any such sheriff’s hands, shall be delivered to the party against whom attachment was issued. [Sec. 19, Rule 57] If proceeds from realization of all property attached are not enough to satisfy judgement If such a scenario happens, the Rules of Court instruct that any balance shall be collected by the sheriff as upon ordinary execution. Whenever the judgement shall have been paid, the sheriff must return to the judgement debtor any attached property remaining in his hands. [Sec. 16, Rule 57] Duration of an attachment lien While the provisions of Rule 57 are silent on the length of time within which an attachment lien shall continue to subsist after the rendition of a final judgment. The lien continues until: a. The debt is paid, or b. The sale is had under execution issued on the judgment, or c. Until the judgment is satisfied, or d. The attachment discharged or vacated in the same manner provided by law. [Lim v. Sps. Lazaro, G.R. No. 185734 (2013)]

The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. [Sec. 15, Rule 57] Page 174 of 525

h. Compared with Garnishment and Levy on Execution

U.P. LAW BOC

CIVIL PROCEDURE

Kinds of attachment as to availability and effects 1. Preliminary attachment - one issued at the commencement of the action or at any time before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules; [Sec. 1, Rule 57] 2. Levy on execution - writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the property on execution before the satisfaction of a final judgment. [Sec. 8, Rule 39] [1 Regalado 691, 2010 Ed.] Kinds of attachment as to form and procedure of attachment: 1. Regular form of attachment – attachment which refers to attachment of corporeal property in possession of the party involved. [1 Regalado 691, 2010 Ed.] 2. Garnishment - A kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called garnishee, to his claim or the money which said third person owes the defendant; [Virata v. Aquino, G.R. L-35027 (1973)].

4. PRELIMINARY INJUNCTION a. Definitions and Differences: Preliminary Injunction, Temporary Restraining Order, And Status Quo Ante Order Preliminary Injunction Two Kinds: 1. Preliminary Prohibitory Injunction commands one to refrain from performing a particular act or acts. 2. Preliminary Mandatory Injunction commands the performance of some positive act to correct a wrong made in the past. [Dela Rosa v. Heirs of Valdez, 654 SCRA 467 (2015)] In both cases, such orders are granted at any stage of an action prior to the judgement or final order of the court. [Sec. 1, Rule 58]

REMEDIAL LAW

Purpose A writ of preliminary injunction is issued by the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated and during the pendency of an action. [Manila International v. Rivera, 471 SCRA 358 (2005)] Nature A preliminary injunction is an equitable remedy, and one who comes to claim for equity must do so with clean hands. It is to be resorted to by a litigant to prevent or preserve a right where there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. [Sps. Nisce v. Equitable, G.R. No. 170038 (2012)] Moreover, an injunctive writ is not a judgement on the merits of the case. A writ of preliminary injunction is generally based solely on initial and incomplete evidence. Thus, the issuance of a writ of preliminary injunction is interlocutory in nature. [Recto v. Escaler, 634 SCRA 180 (2010)] Lastly, the grant or denial of a writ of preliminary injunction is discretionary because the assessment and evaluation of evidence involve findings of fact left to the court’s discretion. Hence, the exercise of judicial discretion in injunctive matters must not be interfered with except when there is manifest abuse. [2 Riano 53-54, 2016 Bantam Ed.] Temporary Restraining Order (TRO) An order issued to preserve the status quo until the hearing of the application for a writ of preliminary injunction because the injunction cannot be issued ex parte. [Bacolod Water v. Labayen, 446 SCRA 110 (2004)] By its nature, it could be considered as a “provisional remedy within a provisional remedy” because it is issued to preserve the status quo for a limited period until the court decides to issue a writ of preliminary injunction. [2 Riano 67, 2016 Bantam Ed.]

Page 175 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Status Quo Ante Order (SQAO) Unlike a TRO or a preliminary injunction, a SQAO is more in the nature of a cease and desist order, since it neither directs the undoing or doing of acts as in the case of prohibitory or mandatory injunctive relief. A SQAO seeks to only maintain the last, actual, peaceable, and uncontested state of things which immediately preceded the controversy. [Oca v. Custodio, G.R. No. 174996 (2014)]

b. Requisites Formal requisite for issuance of a writ of preliminary injunction or a TRO A preliminary injunction or temporary restraining order may be granted only a. Upon verified application, showing facts entitling the applicant to the relief demanded, and b. Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. • If the person enjoined takes exception to the sufficiency of the bond, and there is a showing that the applicant’s bond is insufficient in amount, the injunction shall be dissolved. [2 Riano 65, 2016 Bantam Ed.] c. When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or

REMEDIAL LAW

initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contem­poraneous service of summons shall not apply. d. The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. [Sec. 4, Rule 58] e. As to a writ of preliminary injunction, the court must conduct a hearing. A writ of preliminary injunction cannot be issued without a prior notice and hearing. [Sec. 5, Rule 58] • Note: On the other hand, a TRO can be issued ex parte pursuant to Sec. 5, Rule 58. [2 Riano 65, 2016 Bantam Ed.] The applicant must establish: a. The existence of a clear and unmistakable right that must be protected; that is, right in esse b. This right in esse is directly threatened by an act sought to be enjoined c. A material and substantial invasion of such right; and d. An urgent and paramount necessity for the writ to prevent serious damage. [Dulnuan v. Metrobank, G.R. No. 196864 (2015)] Right in esse The applicant's right must be clear or unmistakable, that is, that the right is actual, clear and positive especially calling for judicial protection. An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give

Page 176 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

rise to a cause of action. [Marquez v. Sanchez, G.R. No. 141849 (2007)]

and among the parties. [WT Construction, Inc. v. DPWH, G.R. No. 163352 (2007)]

Irreparable injury Does not have reference to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. This includes: a. That degree of wrong of a repeated and continuing kind which produces hurt, inconvenience, or damage that can be estimated only by conjecture, and not by any accurate standard of measurement. b. Damage where there is no standard by which their amount can be measured with reasonable accuracy c. A serious charge of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof. If full compensation can be obtained, by way of damages, equity will not favor the remedy of injunction. [Social Security Commission v. Bayona, G.R. No. L-13555 (1962)]

Kinds of Temporary Restraining Orders 1. 20-day TRO If it appears from the facts that great or irreparable injury would result to the applicant before the matter can be heard, the court in which the application for preliminary injunction was made may issue ex parte for a period not exceeding 20 days from service to the party sought to be enjoined. [2 Riano 67, 2016 Bantam Ed.]

c. Kinds of Injunctions; Kinds of Temporary Restraining Orders Kinds of Preliminary injunctions a. Preliminary injunction – an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. b. Preliminary mandatory injunction – requires the performance of a particular act or acts [Sec. 1, Rule 58] A preliminary mandatory injunction may also issue in cases where the relative inconvenience bears strongly in the requesting party’s favor, and where the effect of the mandatory injunction is to re-establish and maintain a pre-existing continuing relation between the parties, which was recently and arbitrarily interrupted by another party, rather than to establish a new relationship between

2. 72-hour TRO If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multi-sala court or the presiding judge of a single-sala court may issue ex parte a TRO effective for only 72 hours from issuance, not from service (the latter being the reckoning point for the 20-day TRO). Within this period, a summary hearing to determine whether to extend the TRO to 20 days must be conducted. The 72-hour period shall be included in the maximum 20-day period set by the Rules. [2 Riano 68, 2016 Bantam Ed.]

d. When Writ May Be Issued, When Writ May Not Be Issued When: At any stage of an action or proceeding prior to the judgment or final order. [Sec. 1, Rule 58] By whom: By the court where the action or proceeding is pending. If the action or proceeding is pending in the CA or in the SC, it may be issued by said court or any member thereof. [Sec. 2, Rule 58] Note: Being preliminary, an order granting a preliminary injunction need not clearly and distinctly state the findings of fact and conclusions of law on which it is based. [UCPB v. United Alloy Phils. Corp., G.R. No. 152238 (2005)]

Page 177 of 525

U.P. LAW BOC

CIVIL PROCEDURE

When not allowed 1. Under RA 8975 (An Act to Ensure the Expeditious Implementation and Completion of Government Infrastructure Projects); Rationale: Injunctions and restraining orders tend to derail the implementation and completion of government infrastructure projects. [2 Riano 72-73, 2016 Bantam Ed.] 2. Under the Rule of Procedure in Environmental Cases, no court can issue a TRO or a preliminary injunction against lawful actions of government agencies that enforce environmental laws. [Sec. 10, Rule 2, Part II, AM No. 09-6-8-SC] 3. No TRO or injunction in any case involving or growing out of a labor dispute shall be issued by any court except as otherwise provided in Arts. 218 and 264 of the Labor Code. It is the NLRC which may grant injunctive relief. [Ravago v. Esso, 453 SCRA 381 (2005)] 4. No court shall have the authority to grant injunction to restrain the collection of any national internal revenue tax except when special circumstances warrant. [Sarasola v. Trinidad, 40 Phil. 252 (1919)] 5. An injunction cannot be issued against consummated acts. The established principle is that when the events sought to be prevented have already happened, nothing more could be enjoined. [Ramos Sr. v. CA, 173 SCRA 550 (1989)]

e. Grounds for Issuance Preliminary Injunction

of

A preliminary injunction may be granted when it is established that: a. The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually b. The commission, continuance or nonperformance of the act or acts complained

REMEDIAL LAW

of during the litigation would probably work injustice to the applicant, or c. A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. [Sec. 3, Rule 58]

f. Grounds for Objection To, or for the Dissolution of Injunction or Restraining Order a. Upon a showing of its insufficiency • An application for injunction may be considered insufficient if it is not verified and supported by any of the grounds for its issuance under Sec. 3 of Rule 58 OR if it is not supported by the required bond under Sec. 4 of Rule 58. [2 Riano 82, 2016 Bantam Ed.] b. Other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits c. If it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. • If the bond of the adverse party is found to be insufficient, the injunction shall be granted or restored. [2 Riano 65, 2016 Bantam Ed.] Note: If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. [Sec. 6, Rule 58]

Page 178 of 525

U.P. LAW BOC

CIVIL PROCEDURE

g. Duration of Temporary Restraining Orders Rule on non-extendibility In the event that the application for preliminary injunction is denied or not resolved within the said period, the TRO is deemed automatically vacated. The effectivity of a TRO is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued. [Sec. 5, Rule 58] Duration differs as per court issuing the TRO 1. If issued by the RTC - The rule against non-extendibility of the 20-day effectiveness of a TRO is absolute. [2 Riano 68, 2016 Bantam Ed.] 2. If issued by the CA - A TRO may be issued by the CA or any member thereof. If so issued, it shall be effective for 60 days from service on the party or person sought to be enjoined. A TRO issued by the CA has a non-extendible lifetime of 60 days and automatically expires on the 60th day without need of judicial declaration. [2 Riano 70, 2016 Bantam Ed.] 3. If issued by the SC - A TRO issued by the SC shall be effective until further orders. [2 Riano 71, 2016 Bantam Ed.] When main case to be decided The trial court, the CA, the Sandiganbayan, or the CTA that issued the preliminary injunction against a lower court, board, officer, or quasijudicial agency shall decide the main case or petition within 6 months from the issuance of the writ. [Sec. 5, Rule 58]

h. Rule on Prior or Contemporaneous Service of Summons in Relation to Attachment General rule: When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or

REMEDIAL LAW

any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. Exceptions: The requirement of prior or contemporaneous service of summons shall not apply: a. The summons could not be served personally or by substituted service despite diligent efforts, or b. The adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof [Sec. 4, Rule 58] Grant of final injunction If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. [Sec. 9, Rule 58]

5. RECEIVERSHIP Receiver A person appointed by the court on behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and preventing its possible destruction or dissipation if it were left in the possession of any of the parties. [Normandy v. Duque, G.R. No. L-25407 (1969)] A receiver is not an agent of any party to the action. He is an officer of the court exercising his functions in the interest of neither plaintiff nor defendant but for the common benefit of all the parties in interest. [2 Riano 87-88, 2016 Bantam Ed.]

Page 179 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Purpose Receivership, like injunction, may be the principal action itself or just an ancillary remedy. [1 Regalado 745, 2010 Ed.] The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal, or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. [Ysasi v. Fernandez, G.R. L-28593 (1968); 2 Riano 129, 2012 Ed.] Unlike the other provisional remedies which can be availed of only before final judgment, receivership may be resorted to even after the judgment has become final and executory, under Sec. 1(c), Rule 59 in relation to Sec. 41, Rule 39. [1 Regalado 747, 2010 Ed.] The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. [2 Riano 128, 2012 Ed.] The guiding principle is the prevention of imminent danger to the property. If an action by its nature does not require such protection or preservation, said remedy cannot be applied for and granted. [Commodities Storage v. CA, G.R. No. 125008 (1997)]

a. Cases When Receiver May Be Appointed a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

REMEDIAL LAW

b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judg­ment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. [Sec. 1, Rule 59]

Specific cases a. If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership [Art. 101, FC] b. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution [Sec. 41, Rule 39] c. After the trial court loses jurisdiction over the case (in appeals by notice of appeal) or only over the subject matter (in appeals by record on appeal), and prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties [Sec. 9, Rule 41], including necessarily the authority to appoint a receiver who has the power to take and keep possession of the property in controversy [Acuña v. Calauag, G.R. No. L-10736 (1957)] d. After final judgment, a receiver may be appointed as an aid to the execution of

Page 180 of 525

U.P. LAW BOC

CIVIL PROCEDURE

judgment [Philippine Trust Company v. Santamaria, G.R. 31951 (1929)] e. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner [Dolar v. Sundiam, G.R. No. 27361 (1971)] Who appoints a receiver a. Court where the action is pending b. CA c. SC d. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin [Sec. 1, Rule 59]

b. Requisites Requisites for appointment of a receiver a. Verified application filed by the party requesting for the appointment of the receiver [Sec. 1, Rule 59] b. The grounds stated in Sec. 1, Rule 59 enumerated in Part D.1 of this (Provisional Remedies) reviewer. c. Application must be with notice and must be set for hearing; d. Before appointing a receiver, the court shall require the applicant to post a bond executed to the party against whom the application is presented, in an amount to be fixed by the court. [Sec. 2, Rule 59] e. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond, executed to such person and in such sum as the court may direct [Sec. 4, Rule 59]

c. Requirements Before Issuance of an Order Oath and bond of receiver Before entering his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties.

REMEDIAL LAW

d. General Powers of a Receiver Powers of a receiver Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to a. Bring and defend, in such capacity, actions in his own name b. Take and keep possession of the property in controversy c. Receive rents d. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver e. Compound for and compromise the same f. Make transfers g. Pay outstanding debts h. Divide the money and other property that shall remain among the persons legally entitled to receive the same i. Generally to do such acts respecting the property as the court may authorize j. Invest funds in his hands, only by order of the court upon the written consent of all the parties [Sec. 6, Rule 59] Liability for refusal or neglect to deliver property to receiver a. May be punished for contempt, and b. Shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect [Sec. 7, Rule 59] Remedies against the receiver An aggrieved party may: 1. Take the matter into the court which appointed the receiver and ask either for an accounting or take some other proceeding, and ask for consequent judgment on the acts complained of; or 2. Ask for leave of court to bring him an action directly

Page 181 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: Any action filed against a receiver without the required judicial authority may be dismissed through the allegation of failure to comply with a condition precedent as an affirmative defense to the action. [2 Riano 92, 2016 Bantam Ed.] [De la Riva v. Molina Salvador, G.R. L-10106 (1915)]

e. Two Kinds of Bonds a. Applicant’s bond 1. Executed to the party against whom the application is presented 2. In an amount to be fixed by the court 3. To the effect that the applicant will pay such party all damages he may sustain by reason of the appointment in case the applicant shall have procured such without sufficient cause the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. [Sec. 2, Rule 59] b. Receiver’s bond 1. Before entering upon his duties 2. Executed to such person and 3. In such sum as the court may direct 4. To the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court. [Sec. 4, Rule 59]

Counterbond on opposition for appointment of a receiver The party against whom the application for appointment of a receiver may oppose the application or ask for the discharge of a receiver already appointed. To make a successful opposition, such party should file a bond: a. Executed to the applicant, b. In an amount to be fixed by the court, c. To the effect that such party will pay the applicant all damages he may suffer by reason of acts, omissions, or other matters specified in the application as ground for such appointment. [Sec. 3, Rule 59]

REMEDIAL LAW

f. Termination of Receivership Ground The necessity for a receiver no longer exists. [Sec. 8, Rule 59] Procedure 1. The court shall determine that the necessity for a receiver no longer exists a. Motu proprio or b. On motion of either party 2. Due notice should be given to all interested parties 3. Hearing shall be conducted 4. After due notice and hearing, the court shall a. Settle the accounts of the receiver b. Direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and c. Order the discharge of the receiver from further duty as such d. Allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. [Sec. 8, Rule 59]

6. REPLEVIN Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin. [BA Finance Corp. v. CA, G.R. No. 102998 (1996)] Replevin may also be a main action with the ultimate goal of recovering personal property capable of manual delivery wrongfully detained by a person. In this sense, it is a suit in itself. [BA Finance Corp. v. CA, G.R. No. 102998 (1996)]

Page 182 of 525

U.P. LAW BOC

Replevin The purpose is to recover personal property capable of manual delivery from the defendant [1 Regalado 753, 2010 Ed.] The property either belongs to the plaintiff or one over which the plaintiff has a right of possession [Sec. 2, Rule 60] May be sought only when the principal action is for the recovery of personal property [1 Regalado 753, 2010 Ed.] Can be sought only when the defendant is in actual or constructive possession of the property [1 Regalado 753, 2010 Ed.] Cannot be availed of when property is in custodia legis [Montesa v. Manila Cordage. G.R. L-44537 (1978)] Available before defendant answers [Sec. 1, Rule 60]

CIVIL PROCEDURE

Preliminary attachment The purpose is to have the property put in the custody of the court to secure the satisfaction of the judgment that may be rendered in favor of the plaintiff [Sec. 1, Rule 57] The property does not belong to the plaintiff but to the defendant [1 Regalado 753, 2010 Ed.]

Available even if recovery of property is only incidental to the relief sought [1 Regalado 753, 2010 Ed.]

May be resorted to even if property is in possession of a third person [1 Regalado 753, 2010 Ed.]

Can be availed of when property is in custodia legis [Sec. 7, Rule 57]

Available commencement before entry

from but of

REMEDIAL LAW

judgment [Sec. 1, Rule 57] Bond is double the value of the property [Sec. 2(d), Rule 60]

Bond is fixed by the court [Sec. 4, Rule 57]

a. When May Writ Be Issued A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him. [Sec. 1, Rule 60] Scope of Title of Applicant An applicant need not be the holder of legal title to the property in question. It is in the nature of a possessory action. It is sufficient that at the time he applied for a writ of replevin he is found to be entitled to a possession thereof. [Chiao Liong v. CA, G.R. No. 106251 (1993)] General rule: Primarily, the action of replevin determines nothing more than the right of possession. Exception: When the title to the property is distinctly put in issue by the defendant's plea, the question of ownership may be resolved in the same proceeding. [Chiao Liong v. CA, G.R. No. 106251 (1993)] Where replevin writ was improperly implemented The proper remedy to an improperly implemented writ of replevin is to file a motion to quash. [Siy v. Tomlin, G.R. No. 205998 (2017)] But failure of a party to file a motion to quash does not prevent a party from assailing the improper service via a petition for certiorari. The trial court is deemed to have acted without or in excess of its jurisdiction if improperly served. It must restore the parties to their former positions by returning the seized

Page 183 of 525

U.P. LAW BOC

CIVIL PROCEDURE

property and by discharging the replevin bond. [Rivera v. Vargas, G.R. No. 165895 (2009)]

b. Requisites a. The applicant must show by his own affidavit or that of some other person who personally knows the facts the items stated in Part F.3 (Affidavit and bond; redelivery bond) b. The applicant must also give a bond, called a replevin bond. [Sec. 2, Rule 60]

Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody [Sec. 3, Rule 60]

c. Affidavit and Bond; Redelivery Bond Contents of the affidavit: The affidavit shall show a. That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b. That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d. The actual market value of the property. [Sec. 2, Rule 60] Applicant’s bond (Replevin Bond) a. Executed to the adverse party b. Double the value of the property as stated in the affidavit c. Conditions:

REMEDIAL LAW

1. The return to of property to adverse party if such return be adjudged, and 2. The payment to adverse party of such sum as he may recover from the applicant in the action. [Sec. 2, Rule 60]

Return of property If the adverse party objects to the sufficiency of the a. Applicant’s bond, or b. Surety or sureties thereon, he cannot immediately require the return of the property, but he may, at any time before the delivery of the property to the applicant, require the return thereof. [Sec. 5, Rule 60] How return of property may be required; Redelivery bond File a bond with the court where the action is pending. Such shall be: a. Executed to the applicant, b. In double the value of the property as stated in the applicant’s affidavit c. Conditions 1. The delivery thereof to the applicant, if such delivery be adjudged, and 2. The payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. [Sec. 5, Rule 60]

d. Sheriff’s Duty in The Implementation of The Writ; When Property Is Claimed by Third Party i. Sheriff’s Duty in Implementation 1. Upon receiving the order, the sheriff must a. Serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and b. Forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. 2. If the property or any part thereof be concealed in a building or enclosure, the sheriff must

Page 184 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

a. Demand its delivery, and b. If it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. 3. After the sheriff has taken possession of the property, he must a. Keep it in a secure place and b. Shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. [Sec. 4, Rule 60]

Unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in Sec. 2, Rule 60. • No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond.

Delivery of the property The property shall be delivered to the applicant, 1. If within 5 days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of a. the bond, or b. of the surety or sureties thereon; or 2. If the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, or 3. If the adverse party requires the return of the property but his bond (redelivery bond) is objected to and found insufficient and he does not forthwith file an approved bond,

Judgment After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment for the delivery of: a. The property itself to the party entitled to the same, or b. Its value in case delivery cannot be made, and c. For such damages as either party may prove, with costs. [Sec 9, Rule 60]

If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party. [Sec. 6, Rule 60] ii. When Property Claimed by Third Party If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant if: 1. The third party makes an affidavit of his title or right to the possession 2. Stating the grounds therefor, and 3. Serves such affidavit upon the sheriff while he has possession of the property and a copy thereof upon the applicant.

Note: In case of disagreement as to such value, the court shall determine the same. [Sec. 7, Rule 60]

Recovering damages on an applicant’s bond Requirements a. The defendant­ claimant has secured a favorable judgment the main action, meaning that the plaintiff has no cause of action and was not entitled to the replevin; b. The application for damages, showing claimant’s right thereto and the amount thereof, be filed in the same action before trial or before appeal is perfected or before the judgment becomes executory; c. Due notice be given to the other party and his surety or sureties, notice to the principal not being sufficient; d. A proper hearing and the award for damages should be included in the final judgment. [DBP v. Carpio, G.R. No. 195450 (2017)] Note: DBP v. Carpio states that the same requirements apply when recovering

Page 185 of 525

U.P. LAW BOC

CIVIL PROCEDURE

damages under other provisional remedies, as provided in Sec. 20, Rule 57; Sec. 8, Rule 58 and Sec. 9, Rule 59. Even where the judgment is that the defendant is entitled to the property, but no order was made requiring the plaintiff to return it or assessing damages in default of return, there could be no liability on the part of the sureties until judgment was entered that the property should be restored. [Sapugay et. al. v. CA, G.R. No. 86792 (1990)]

7. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL LAWS AND RULES a. Provisional Remedies of the Family Courts R.A. 8369 provides for certain provisional remedies described in the law as special provisional remedies. [2 Riano 111, 2016 Bantam Ed.] Restraining order In case of violence among the immediate members of the family living in the same domicile, the Family Court may issue a restraining order against the accused or defendant if the complainant or victim files a verified application for relief from abuse. [Sec. 7, RA 8369] Temporary custody In all civil actions for the custody of children, the court may order the temporary custody of the children. [Sec. 7, R.A. 8369] Support pendente lite In all civil actions for support, the court may also order support pendente lite, deduction from the salary, and use of the conjugal home. [Sec. 7, R.A. 8369]

REMEDIAL LAW

b. Human Security Act Seizure of assets A seizure and sequestration of assets of certain persons are authorized including those of a person “suspected” of terrorism as defined in the law. [Sec. 39] Travel restriction The right to travel of the person charged may be subjected to restrictions even before judgement under certain conditions. [Sec. 26] Examination of bank deposits The bank deposits, accounts, and records, among others, of a person charged or suspected of a crime defined under the HSA may be examined under certain conditions, the provisions of the Secrecy of Bank Deposits Law notwithstanding. [Sec. 27]

1.

Anti-violence Against Women and Children Act

Certain interim reliefs may be availed of under R.A. 9262 even before or in the absence of a decree of legal separation, annulment or declaration of absolute nullity of marriage and for the protection of women and their children. [2 Riano 114-115, 2016 Bantam Ed.] Protection order A protection order is an order issued for the purpose of preventing further acts of violence against a woman or her child as specified in the law and granting the necessary relief. The protection orders under R.A. 9262 are of two kinds, namely: 1. Temporary Protection Order - issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some, or all of the reliefs mentioned in the Act and shall be effective for 30 days. 2. Barangay Protection Order - issued by the Punong Barangay or any available Barangay Kagawad ordering the perpetrator to desist from committing acts

Page 186 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

described in the law. When issued, they shall be effective for 15 days. [2 Riano 115-116, 2016 Bantam Ed.]

c. Anti-Money Laundering Act Freezing of monetary instrument or property The CA, upon application ex parte by the AntiMoney Laundering Council (AMLC) and after determination that probable cause exists that any monetary instrument or property is in any way related to money laundering, may issue a freeze order effective immediately. [Sec. 10] Authority to inquire into bank deposits The AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to unlawful activities as defined in this law. [Sec. 11]

d. Financial Rehabilitation Insolvency Act

and

Upon the issuance of a Commencement Order, such shall include a Stay or Suspension Order which shall: 1. Suspend all actions or proceedings, in court or otherwise, for the enforcement of claims against the debtor; 2. Suspend all actions to enforce any judgment, attachment or other provisional remedies against the debtor; 3. Prohibit the debtor from selling, encumbering, transferring or disposing in any manner any of its properties except in the ordinary course of business; and 4. Prohibit the debtor from making any payment of its liabilities outstanding as of the commencement date except as may be provided herein. [Sec. 16(q)]

e. Precautionary Hold Departure Orders

Lifting of PHDO In order to have the PHDO temporarily lifted, the respondent may: a. File a verified motion b. Based on meritorious grounds: 1. There is doubt that probable cause exists in issuing the PHDO, or 2. It is shown that he is not a flight risk c. Post a bond. [Sec. 7]

E.

SPECIAL CIVIL ACTIONS

1. NATURE OF SPECIAL CIVIL ACTIONS Special civil actions are generally brought or filed for the same purpose as a civil action, that is, for a party to sue another for the enforcement of a right, or the prevention or redress of a wrong. [1 Riano 495, 2007 Ed.] A special civil action is governed by the rules for ordinary civil actions, subject to the special rules prescribed for a special civil action. [Sec. 3(a), Rule 1]

2. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS Ordinary civil action A party sues another for the enforcement or protection of a right or prevention or redress of a wrong. [Sec. 3(a), Rule 1] Governed by the ordinary rules. [Sec. 3, Rule 1]

Page 187 of 525

Special civil action A party also files the action for the enforcement or protection of a right or prevention or redress of a wrong. [1 Riano 495, 2007 Ed.] Also governed by ordinary rules but subject to specific rules prescribed. [Sec. 3, Rule 1]

U.P. LAW BOC

Must be based on a cause of action which means that there must have been a violation of plaintiff’s rights. [Sec. 1, Rule 2] Venue is determined by either the residence of the parties when action is personal or by the location of the property when the action is real. [Secs. 1-2, Rule 4] Initiated by complaint. [Sec. 5, Rule 1]

It may be filed initially either in the MTC or the RTC.

CIVIL PROCEDURE

Some special civil actions do not have to be based on a cause of action (e.g. interpleader). [1 Regalado 771, 2010 Ed.] Venue is generally governed by the general rules on venue, except as otherwise indicated by special rules. [1 Regalado 771, 2016 Ed.]

Initiated by complaint or petition. [1 Regalado 770, 2010 Ed.] Some special civil actions can only be filed in the MTC (e.g. forcible entry and unlawful detainer) while there are some which can NOT be commenced in the MTC (e.g. certiorari). [1 Regalado 771, 2010 Ed.]

3. JURISDICTION AND VENUE Jurisdiction over special civil actions is determined by the Constitution [e.g. Sec. 5, Art. VIII, for the Supreme Court] and statutes (e.g. B.P. 129). Venue is a procedural matter and generally set by the Rules of Court. Hence, the venue of civil actions is determined by the general rules on venue, unless otherwise subject to special

REMEDIAL LAW

rules for special civil actions (e.g. quo warranto). [1 Regalado 771, 2010 Ed.]

4. INTERPLEADER Definition An interpleader is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest whatsoever, or if he has an interest, it is one which, in whole or in part, is not disputed by the claimants. [Sec. 1, Rule 62] Purpose of the remedy 1. To compel the conflicting claimants to interplead and litigate their several claims among themselves. [Sec. 1, Rule 62] 2. Not to protect a person against double liability but to protect him from double vexation in respect of one liability. [Beltran v. PHHC, G.R. No. L-25138 (1969) Interpleader vs. Intervention Interpleader Intervention Ancillary action, i.e. Original action there is a pending action Intervenor claims an interest that is Plaintiff either has adverse to at least 1. No interest or; one of the existing 2. An interest in the parties, or will be subject matter adversely affected undisputed by by judgment in favor the other parties of either of the existing parties Defendants to a complaint-inDefendants are sued intervention are to be impleaded parties to a pending suit [1 Regalado 321, 2010 Ed.]

a. Requisites for Interpleader a. There must be 2 or more claimants with adverse or conflicting interest;

Page 188 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. The conflicting claims involves the same subject matter; c. The conflicting claims are made against the same person; and d. The plaintiff has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants. [Sec. 1, Rule 62]

b. When to File General rule: An action for Interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending parties. Otherwise, it may be barred by laches. [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851 (1976)] Exception: Where the stakeholder acts with reasonable diligence in view of environmental circumstances, the remedy is not barred. [Wack Wack Golf & Country Club v. Lee Won, G.R. No. L-23851 (1976)] Who may file The person against whom the conflicting claims are made and claims no interest in the subject matter. [Sec. 1, Rule 62] Procedure Filing of an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves [Sec. 1, Rule 62] ↓ Court order upon the filing of the complaint requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court [Sec. 2, Rule 62] ↓ Summons served upon the conflicting claimants, together with a copy of the complaint and order [Sec. 3, Rule 62] ↓

REMEDIAL LAW

Answer of each claimant setting forth his claim within 15 days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by the ROC. Counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by the ROC, may be filed by the parties in an interpleader action. [Sec. 5, Rule 62] OR

Motion to dismiss filed by each claimant within the time for filing an answer on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial [Sec. 4, Rule 62] Note: Even if a motion to dismiss is now a prohibited pleading under the Amended Rules, it is submitted that a motion to dismiss can still be filed on the basis of the impropriety of an interpleader, even if such ground is not among those listed for an allowable motion to dismiss under Sec. 12, Rule 15. This is because the rules of ordinary civil actions are subject to the special rules prescribed for a special civil action. [Sec. 3(c), Rule 1] In light of Sec. 3(c), Rule 1 as well, the grounds for an allowable motion to dismiss should likewise be allowed as proper grounds for a motion to dismiss an interpleader. [see Sec. 12(a)(1-3), Rule 15] ↓ Pre-trial [Sec. 6, Rule 62] ↓ Determination of the claimants’ respective rights and adjudicate their several claims [Sec. 6, Rule 62]

Page 189 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Effect of failure to answer If any claimant fails to plead within the time herein fixed, the court may, on motion, a. Declare him in default and b. Render judgment barring him from any claim in respect to the subject matter. [Sec. 5, Rule 62]

REMEDIAL LAW

The only issue that can be raised in such a petition is the question of construction or validity of provisions in an instrument or statute. Corollary is the general rule that such an action must be justified, as no other adequate relief is available. [2 Riano 142, 2016 Bantam Ed.]

c. Dismissal Proper Grounds to Dismiss an Interpleader As mentioned above, the following are submitted to be the allowable grounds for a motion to dismiss an interpleader under the Amended Rules, to wit: 1. Impropriety of Interpleader [Sec. 4, Rule 62] 2. Allowable grounds for a motion to dismiss, namely: a. Lack of jurisdiction over the subject matter b. Litis pendentia c. Res judicata d. Prescription [Sec. 12(a), Rule 15]

5. DECLARATORY RELIEFS AND SIMILAR REMEDIES Two types of actions under Rule 63 1. Petition for declaratory relief, and 2. Similar remedies a. Action for reformation of an instrument; b. Action to quiet title or remove clouds therefrom, and c. Action to consolidate ownership under Art. 1607, CC [Sec. 1, Rule 63] Definition Declaratory relief is an action by any person interested in a deed, will, contract or other written instrument, executive order or resolution, to determine any question of construction or validity arising from the instrument, executive order or regulation, or statute, and for a declaration of his rights and duties thereunder. [Sec. 1, Rule 63; Jumamil v. Cafe, G.R. No. 144570 (2005)]

Purpose To secure an authoritative statement of the rights and obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement or compliance and not to settle issues arising from its alleged breach. [Tambunting v. Sumabat and Baello, G.R. No. 144101 (2005)] Subject matter of Petition for Declaratory Relief The subject matter in a petition for declaratory relief is any of the following: 1. Deed 2. Will 3. Contract or other written instrument 4. Statute 5. Executive order or regulation 6. Ordinance, or 7. Any other government regulation. [Sec. 1, Rule 63] Note: The enumeration is exclusive. Hence, an action not based on any of those enumerated cannot be the proper subject of declaratory relief. [Mangahas v. Paredes, G.R. No. 157866 (2007)] Where to File Declaratory Relief Jurisdiction General Rule: Exclusive and original jurisdiction is with the RTC since the subject in a petition for declaratory relief is incapable of pecuniary estimation. [Sec. 19, B.P.129, as amended by R.A. 7691]. The SC has no original jurisdiction over these petitions, only appellate jurisdiction [Liga ng mga Barangay National v. City Mayor of Manila, G.R. No. 154599 (2004)]

Page 190 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Exception: Where the action is a proceeding similar to declaratory relief (e.g. quieting of title to real property), jurisdiction will depend on the assessed value of the property. [Malana v. Tappa, G.R. No. 181303 (2009)] Venue: General rule on venue applies, see Rule 4.

a. Who May File Action Any person: a. Interested under a deed, will, contract or other written instrument, b. Whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation, and c. Who files before the breach or violation thereof. [Sec. 1, Rule 63] Parties to the action a. All persons who have or claim any interest which would be affected by the declaration [Sec. 2, Rule 63] b. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question [Sec. 3, Rule 63] c. In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard [Sec. 4, Rule 63] Note: Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. [Baguio Citizens Action v. City Council of Baguio, G.R. No. L-27247 (1983)]

REMEDIAL LAW

b. Requisites a. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance b. The terms of said documents and the validity thereof are doubtful and require judicial construction; c. There must have been no breach of the documents in question d. There must be an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are adverse e. The issue must be ripe for judicial determination; and f. Adequate relief is not available through other means or other forms of action or proceeding. [Republic v. Roque, G.R. No. 204603 (2013)] A justiciable controversy refers to an existing case or controversy appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory [Velarde v. Social Justice Society, G.R. No. 159357 (2004)]

c. When Court May Refuse To Make Judicial Declaration General Rule: The court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. Exception: Actions falling under the 2nd par of Sec. 1, Rule 63 a. An action for the reformation of an instrument, recognized under Articles 1359 to 1369 of the Civil Code; b. An action to quiet title, authorized by Articles 476 to 481 of the Civil Code; and

Page 191 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. An action to consolidate ownership required by Article 1607 of the Civil Code in a sale with a right to repurchase. [Sec. 5, Rule 63]

REMEDIAL LAW

declaratory relief because of Sec. 5, Rule 63 on when the court’s action on such a petition is discretionary. i. Reformation of an Instrument

d. Conversion to Ordinary Action The action may be converted into an ordinary action if: a. Before the final termination of the case, b. A breach or violation of an instrument or a statute, executive order, regulation, ordinance, or any other governmental regulation should take place. Note: The parties shall be allowed to file such pleadings as may be necessary or proper. [Sec. 6, Rule 63] A petition for declaratory relief is filed before the occurrence of any breach or violation of the deed, contract, statute, ordinance or executive order or regulation. It will not prosper when brought after a contract or a statute has already been breached or violated. If there has already been a breach, the appropriate ordinary civil action and not declaratory relief should be filed [City of Lapu-Lapu v. PEZA, G.R. No. 184203 (2014)]

e. Proceedings Considered Similar Remedies

as

These remedies are considered similar to declaratory relief because they also result in the adjudication of legal rights of the litigants, often without the need of execution to carry the judgment into effect: a. An action for the reformation of an instrument, recognized under Articles 1359 to 1369 of the Civil Code; b. An action to quiet title, authorized by Articles 476 to 481 of the Civil Code; and c. An action to consolidate ownership required by Article 1607 of the Civil Code in a sale with a right to repurchase. [Malana v. Tappa, G.R. No. 181303 (2009)] However, a distinction must be made between these proceedings and an action for

Definition Reformation is a remedy in equity, whereby a written instrument is made or construed so as to express or conform to the real intention of the parties, where some error or mistake has been committed. [Multi-Ventures Capital v. Stalwart Management Services Corp., G.R. No. 157439 (2007)] What are the requisites for reformation? 1. There must have been a meeting of the minds of the parties to the contract; 2. The instrument does not express the true intention of the parties; and 3. Failure of the instrument to express the true intention of the parties is due to mistake, fraud, inequitable conduct or accident. [Multi-Ventures Capital v. Stalwart Management Services Corp., G.R. No. 157439 (2007)] Burden of proof The onus probandi is upon the party who insists that the contract should be reformed. [Multi-Ventures Capital v. Stalwart Management Services Corp, G.R. No. 157439 (2007)] Prescriptive period In an action for reformation, the plaintiff has 10 years within which to bring it from the time the right of action accrued. [Veluz v. Veluz, G.R. No. L-23261 (1968)] CIVIL CODE PROVISIONS ON THE REFORMATION OF AN INSTRUMENT When the remedy is reformation of the instrument When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that

Page 192 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

such true intention may be expressed. [Art. 1359, CC]

in conflict with the provisions of the Civil Code. [Art. 1360, CC]

When a mutual mistake of the parties causes the failure of the instrument to disclose their real agreement, the said instrument may be reformed [Art. 1361, CC]

There shall be no reformation in the following cases: 1. Simple donations inter vivos wherein no condition is imposed, 2. Wills, or 3. When the real agreement is void. [Art. 1366, CC]

If one party was mistaken and the other acted fraudulently or inequitably in such a way that the instrument does not show their true intention, the former may ask for the reformation of the instrument [Art. 1362, CC] When one party was mistaken and the other knew or believed that the instrument did not state their real agreement, but concealed that fact from the former, the instrument may be reformed [Art. 1363, CC] When through the ignorance, lack of skill, negligence or bad faith on the part of the person drafting the instrument or of the clerk or typist, the instrument does not express the true intention of the parties, the courts may order that the instrument be reformed [Art. 1364, CC] If two parties agree upon the mortgage or pledge of real or personal property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper [Art. 1365, CC] Reformation may be ordered at the instance of either party or his successors in interest, if the mistake was mutual; otherwise, upon petition of the injured party, or his heirs and assigns [Art. 1368, CC] When the remedy is for annulment of the contract If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. [Art. 1359, CC] The principles of general law on reformation of instruments are adopted insofar as they are not

When one of the parties has brought an action to enforce the instrument, he cannot subsequently ask for its reformation [Art. 1367, CC] ii. Consolidation of Ownership In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of Art. 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. [Art. 1607, CC] The vendor cannot avail himself of the right of repurchase without returning to the vendee the price of the sale, and in addition: 1. The expenses of the contract, and any other legitimate payments made by reason of the sale; 2. The necessary and useful expenses made on the thing sold. [Art. 1616, CC] Purpose The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption consolidates ownership or title upon the person of the vendee by operation of law. [Rosario v. Rosario, G.R. No. L-13018 (1960)] iii. Quieting of Title to Real Property Whenever there is a cloud on title to real property or any interest therein, by reason of

Page 193 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. [Art. 476, CC] The plaintiff must have legal or equitable title to, or interest in the real property which is the subject-matter of the action. He need not be in possession of said property. [Art. 477, CC] Requisites 1. The plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of the action, and 2. The deed, claim, encumbrance, or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. [Mananquil v. Moico, G.R. No. 180076 (2012)]

6. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT Scope Review of judgments and final orders or resolutions of the COMELEC and the COA. [Sec. 1, Rule 64] A judgment or final order or resolution of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65, except as hereinafter provided [Sec. 2, Rule 64], not on appeal by certiorari under Rule 45.

Reglementary period The petition shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed [Sec. 3, Rule 64]. The 30-day period refers to a petition directed against a final order or judgement of the commission concerned. As such, if a petition for certiorari is directed against an interlocutory order, the 60-day period in Rule 65 should apply. [2 Riano 178, 2016 Bantam Ed.] Interruption of the 30-day period The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. • If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial [Sec. 3, Rule 64]

a. Distinctions in the Application of Rule 65 to Judgments of the COMELEC and COA and the Application of Rule 65 to Other Tribunals, Persons, and Officers Rule 64 Directed to judgments, final orders or resolutions of COMELEC and COA. [Sec. 1] Filed within 30 days from notice of the judgment. [Sec. 3] The denial of a prior motion for reconsideration or new trial gives the filing part time to file

Page 194 of 525

Rule 65 Directed to any tribunal, board, or officer exercising judicial or quasijudicial functions. [Sec. 1] Filed within 60 days from notice of the judgment. [Sec. 4] The denial of the motion for reconsideration or new trial gives the filing party a fresh

U.P. LAW BOC

within the remainder of the 30-day period, but never less than 5 days reckoned from the notice of denial. [Sec. 3]

CIVIL PROCEDURE

period of 60 days for the filing of a Rule 65 petition for certiorari. [Sec. 4]

7. CERTIORARI, PROHIBITION, AND MANDAMUS a. Definitions and Distinctions Certiorari is a writ emanating from the proper court directed against any tribunal, board or officer exercising judicial or quasi-judicial functions, the purpose of which is to correct errors of jurisdiction - i.e. without or in excess of jurisdiction, or with grave abuse of discretion amounting to the same. [Sec. 1, Rule 65] Prohibition is a writ issued by the proper court and directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, commanding the respondent to desist from further proceedings in the action or matter specified therein [Sec. 2, Rule 65] Mandamus is a writ to compel a tribunal, corporation, board, officer or person to do the act required to be done to protect the rights of the petitioner when the respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 3, Rule 65]

b. Requisites Certiorari a. Respondent is exercising judicial or quasijudicial function; b. Respondent acted without or in excess of its jurisdiction or acted with grave abuse of

REMEDIAL LAW

discretion amounting to lack of jurisdiction; and c. There must be no appeal or no other plain, speedy, and adequate remedy. [Sec. 1, Rule 65; Barbers v. COMELEC, G.R. No. 165691 (2005)] Notes on certiorari: a. A respondent is said to be exercising judicial functions where he has the power to determine what the law is and what the legal rights of parties are. b. Quasi-judicial function is a term which applies to the action of administrative officers or bodies to investigate facts and draw conclusions. [2 Riano 195, 2016 Bantam Ed.] c. The acts that may be the object of the petition are: 1. Acts without jurisdiction - denotes that the tribunal, board, or officers acted with absolute lack of authority 2. Excess of jurisdiction - when the respondent exceeds its power or acts without any statutory authority 3. Grave abuse of discretion - connotes capricious and whimsical exercise of judgement as to be equivalent to lack or excess of jurisdiction. [2 Riano 205, 2016 Bantam Ed.] Prohibition a. Respondent is exercising judicial or quasijudicial function; b. Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and c. There must be no appeal or no other plain, speedy, and adequate remedy. [Sec. 2, Rule 65; Barbers v. COMELEC, G.R. No. 165691 (2005)] Mandamus a. Respondent unlawfully 1. Neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or

Page 195 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Excludes another from the use and enjoyment of a right or office to which such other is entitled, and b. There is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 3, Rule 65]

Discretionary vs. Ministerial act Discretionary act Ministerial act One which an officer or tribunal performs in a given state of facts, in a prescribed The law imposes a manner, in duty upon a public obedience to the officer and gives him mandate of a legal the right to decide authority, without how or when the duty regard to or the shall be performed. exercise of his own judgment upon the propriety or impropriety of the act done. [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 (2006)] Note: The common requisite among certiorari, prohibition, and mandamus is that there is no other plain, speedy, or adequate remedy in the ordinary course of law. [Secs. 1, 2, 3, Rule 65]

c. When Petition for Certiorari, Prohibition, and Mandamus is Proper Certiorari is a corrective remedy used to correct errors of jurisdiction, not errors of judgment. Note: Errors of judgement are those errors arising from erroneous conclusions of law. They are reviewable by appeal, not by certiorari. [Heirs of Valientes v. Ramas, 638 SCRA 444] Questions of fact cannot be raised in an original action for certiorari. Only established or

REMEDIAL LAW

admitted facts may be considered. [Suarez v. NLRC, G.R. No. 124723 (1998)] General rule: Where an appeal is available, certiorari will not lie [Jose v. Zulueta, G.R. No. L-16598 (1961)] Exceptions: a. Where appeal does not constitute a speedy and adequate remedy; b. Where orders were also issued either in excess of or without jurisdiction; c. For certain special considerations, as public welfare or public policy; d. Where, in criminal actions, the court rejects the rebuttal evidence for the prosecution as, in the case of acquittal, there could be no remedy; e. Where the order is a patent nullity; and f. Where the decision in the certiorari case will avoid future litigations. [Villarica Pawnshop v. Gernale, G.R. No. 163344 (2009)] Prohibition Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or a writ of preliminary injunction. [1 Regalado 801, 2010 Ed.] The office of prohibition is not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions. [3 Herrera 321, 2006 Ed.] General rule: Prohibition, as a rule, does NOT lie to restrain an act which is already fait accompli (one that has already been done) [Cabañero and Mangornong v. Torres, G.R. No. L-43352 (1935)] Exception: A writ of prohibition will lie to prevent the unlawful creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the

Page 196 of 525

U.P. LAW BOC

CIVIL PROCEDURE

commission of such illegality. [Tan COMELEC, G.R. No. 73155 (1986)]

v.

Mandamus There must be a well-defined, clear legal right or duty. [Valmonte v. Belmonte, G.R. No. 74930 (1989)] The duty must be enjoined by law; hence, a contractual duty cannot be enforced by mandamus [Province of Pangasinan v. Reparations Commission, G.R. No. L-27448 (1977)] The respondent must be exercising a ministerial duty. [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 (2006)] As such, mandamus “will lie to compel discharge of the discretionary duty itself but not to control the discretion to be exercised. In other words, a mandamus can be issued to require action, but not specific action.” [Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742 (1989)] However, in extreme situations generally in criminal cases, mandamus lies to compel the performance by the fiscal of discretionary functions where his actuations are tantamount to a willful refusal to perform a required duty. [1 Regalado 804, 2010 Ed.] Grounds: When any tribunal, corporation, board, officer or person unlawfully a. NEGLECTS the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or b. EXCLUDES another from the use and enjoyment of a right or office to which such other is entitled. [Sec. 3, Rule 65] Mandamus is the proper remedy when the respondent unlawfully excludes the petitioner from a public office, position or franchise to which the latter is entitled without usurping, intruding into or unlawfully holding the office. However, if the respondent claims any right to the office and usurps, intrudes into or unlawfully holds it against the petitioner, quo warranto is the proper remedy [Sec. 1, Rule 66]

REMEDIAL LAW

d. Injunctive Relief General rule The petition shall not interrupt the course of the principal case • The public respondent shall proceed with the principal case within 10 days from filing of the petition for certiorari with the higher court, absent a TRO or preliminary injunction, or upon its expiration. • Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. [Sec. 7, Rule 65, as amended by A.M. No. 077-12-SC] Exceptions: a. When a TRO or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. [Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-SC] b. The doctrine of judicial courtesy: Even if there is no injunction issued, the lower court should defer to the higher court where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of proceedings in the court of origin. [Republic v. Sandiganbayan, G.R. No. 166859 (2006)]

e. Distinguish: Certiorari, Appeal by Certiorari, and Article VIII, Section 1 of the Constitution Certiorari as a mode of appeal [Rule 45] A continuation of the appellate process over the original case Seeks to review final judgment or final orders

Page 197 of 525

Certiorari as a special civil action [Rule 65] An original action and not a mode of appeal May be directed against an interlocutory order of the court or where no appeal or plain or speedy remedy is

U.P. LAW BOC

Raises only questions of law

Filed within 15 days from notice of judgment or final order appealed from, or of the denial of petitioner’s motion for reconsideration or new trial. Extension of 30 days may be granted for justifiable reasons. Does not require a prior motion for reconsideration

Stays the judgment appealed from Parties are the original parties with the appealing party as the petitioner and the adverse party as the respondent, without impleading the lower court or its judge

CIVIL PROCEDURE

REMEDIAL LAW

available in the ordinary course of law Raises questions of jurisdiction, i.e. whether a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction

But the SC/CA may require a comment before giving the petition due course. [1 Regalado 612, 2010 Ed.]

Filed not later than 60 days from notice of judgment, order, or resolution sought to be assailed.

Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on appeal. [Villamar-Sandoval v. Cailipan, G.R. No. 200727 (2013)]

Extension granted only under exceptional cases (infra). Motion for reconsideration is a condition precedent, subject to exceptions Does not stay the judgment or order subject of the petition, unless enjoined or restrained

The tribunal, board, or officer, exercising judicial or quasijudicial functions is impleaded as respondent

Review by the SC is discretionary and will be granted only when there are special or important reasons [Sec. 6, Rule 45]

If the order is sufficient in form and substance, the RTC shall: 1. order respondents to comment, then 2. (a) hear the case or (b) require the parties to file memoranda.

Expanded Scope of Certiorari While Rule 65 specifically requires that the respondent be a tribunal, board, or officer exercising judicial or quasi-judicial functions, recent pronouncements of the Court have extended the reach of the petition to functions that are neither judicial or quasijudicial. [Araullo v. Aquino, G.R. No. 209287 (2014)]

f. Distinguish: Prohibition, Mandamus, and Injunction Injunction Ordinary civil action Directed only to the party litigants, without in any manner interfering with the court

Page 198 of 525

Prohibition Special civil action Directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim

U.P. LAW BOC

Does not involve the jurisdiction of the court

CIVIL PROCEDURE

It is based on the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction

Where to file

Supreme Court

Main action or provisional Main action remedy [2 Riano 58, 2016 Bantam Ed.] Mandamus Special civil action Directed against a Directed against a tribunal, litigant corporation, board, or officer Purpose is for the Purpose is to either tribunal, refrain the defendant corporation, board, from performing an or officer, to act or to perform not perform a necessarily a legal ministerial and legal and ministerial duty duty [2 Riano 59, 2016 Bantam Ed.]

Injunction Ordinary civil action

g. When and Where to File Petition Petition and contents A verified petition is a. Filed in the proper court 1. Alleging the facts with certainty 2. Praying for the proper judgment; and b. Accompanied by: 1. A certified true copy of the judgment, order, resolution subject thereof 2. Copies of all pleadings and relevant and pertinent documents 3. A sworn certification of non-forum shopping [Secs. 1-3, Rule 65] When to file Not later than 60 days from notice of judgment, order, or resolution. If a motion for reconsideration or new trial is filed, the 60-day period shall be counted from notice of denial of motion. [Sec. 4, Rule 65]

REMEDIAL LAW

RTC

Court of Appeals only

Court of Appeals or the Sandiganbayan

Commission on Elections

Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts [Uy v. Contreras, G.R. No. 111416-17 (1994)] If the petition relates to an act or an omission of an MTC, corporation, board, officer or person [Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC] If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or rules [Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC] Whether or not in aid of appellate jurisdiction [Sec. 4, A.M. No. 07-712-SC] In election cases involving an act or an omission of an MTC or RTC [Sec. 4, A.M. No. 07-7-12-SC]

Rule on extension of time for filing General rule: The 60-day period within which to file a petition for certiorari under Rule 65 is non-extendible. Exception: Under the following exceptional circumstances, the Court may extend the period according to its sound discretion: a. Most persuasive and weighty reasons; b. To relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure;

Page 199 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. Good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; d. The existence of special or compelling circumstances; e. The merits of the case; f. A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; g. A lack of any showing that the review sought is merely frivolous and dilatory; h. The other party will not be unjustly prejudiced thereby; i. Fraud, accident, mistake or excusable negligence without appellant’s fault; j. Peculiar legal and equitable circumstances attendant to each case; k. In the name of substantial justice and fair play; l. Importance of the issues involved; and m. Exercise of sound discretion by the judge guided by all the attendant circumstances. [Thenamaris Philippines, Inc. v. CA, G.R. No. 191215 (2014)]

h. Exceptions to Filing of Motion for Reconsideration Before Filing Petition General rule: A motion for reconsideration is an essential precondition for the filing of a petition for certiorari, prohibition, or mandamus. It is a plain, speedy, and adequate remedy. • This is to enable the lower court, in the first instance, to pass upon and correct its mistakes without the intervention of the higher court. [Teng v. Pahagac, G.R. No. 169704 (2010)] Exceptions: An MR may be dispensed with in some cases, such as: a. Where the order is a patent nullity; b. Where questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

REMEDIAL LAW

c. Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government; d. Where under the circumstances, an MR would be useless, as where the court had already indicated that it would deny any MR of its questioned order; e. Where the petitioner was deprived of due process and there is extreme urgency for relief; f. Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable; g. Where the proceedings in the lower court are a nullity for lack of due process; h. Where the proceeding was ex-parte or in which the petitioner had no opportunity to object; i. Where the issue raised is one purely of law or where public interest is involved; j. Where the subject matter of the action is perishable. [Ombudsman v. Laja, G.R. No. 169241 (2006)]

i. Reliefs Petitioner is Entitled to Reliefs Court may: a. Issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties. [Sec. 7, Rule 65] b. Incidental reliefs as law and justice may require. [Secs. 1-2, Rule 65] c. Other reliefs prayed to which the petitioner is entitled. [Sec. 8, Rule 65] d. Disciplinary sanctions for erring lawyers for patently dilatory and unmeritorious petitions for certiorari. [Sec. 8, Rule 65] Prayers Certiorari a. That the judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer; and b. Granting such incidental reliefs as law and justice may require [Sec. 1, Rule 65]

Page 200 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Prohibition a. That the judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified; or b. Otherwise granting such incidental reliefs as law and justice may require [Sec. 2, Rule 65] Mandamus a. That the judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner; and b. To pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent [Sec. 3, Rule 65]

REMEDIAL LAW

lawyers for patently dilatory and unmeritorious petitioner for certiorari. [Sec. 8, Rule 65]

8. QUO WARRANTO A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment. [Defensor-Santiago v. Guingona, Jr., G.R. No. 134577 (1998)] Literally means “by what authority”, it is a prerogative writ by which the court can call upon any person to show by what warrant he holds a public office or exercises a public franchise. [Tecson v. COMELEC, G.R. No. 161434 (2004)]

j. Acts or Omissions of FirstLevel/Regional Trial Courts in Election Cases

Subject matter An action for the usurpation of a public office, position or franchise. [Sec. 1, Rule 66]

In election cases involving an act or omission of a municipal or RTC, the petition [for certiorari, prohibition, or mandamus] shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction. [Sec. 4, par. 3, Rule 65 as amended by A.M. No. 07-7-12- SC (2007)]

Against whom may the action be brought 1. A PERSON who usurps, intrudes into, or unlawfully holds or exercises a public office, position, or franchise • Note: Sec. 2, Article XI of the Constitution allows the institution of a quo warranto action against an impeachable officer. After all, a quo warranto petition is predicated on grounds distinct from those of impeachment. The former questions the validity of a public officer’s appointment while the latter indicts him for so-called impeachable offenses without questioning his title to the office he holds [Republic v. Sereno, G.R. No. 237428 (2018)] 2. A PUBLIC OFFICER who does or suffers an act, which, by the provision of law, constitutes a ground for forfeiture of office; or 3. An ASSOCIATION which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. [Sec. 1, Rule 66]

k. Effects of Filing of Unmeritorious Petition

an

The court may dismiss the petition if: a. It finds the same patently without merit or prosecuted manifestly for delay, or b. If the questions raised therein are too insubstantial to require consideration. Effect of dismissal The court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. • The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary measures on erring

Page 201 of 525

U.P. LAW BOC

CIVIL PROCEDURE

When not proper 1. Against persons who usurp an office in a private corporation [Calleja v. Panday, G.R. No. 168696 (2006)] 2. If the dispute is as to the counting of votes or on matters connected with the conduct of the election, a quo warranto is not the proper remedy but an election protest. [Cesar v. Garrido, G.R. No. 30705 (1929)] 3. Acts or omissions, even if it relates to the qualification of integrity, being a continuing requirement but nonetheless committed during the incumbency of a validly appointed and/or validly elected official, cannot be the subject of a quo warranto proceeding. [Republic v. Sereno, G.R. No. 237428 (2018)] Jurisdiction 1. Original jurisdiction to issue the writ of quo warranto is vested in the SC, CA, and RTC. [Sec. 5(1), Art. VIII, Constitution; Secs. 9 and 21, B.P. 129] 2. Quo warranto actions against corporations with regard to franchises and rights granted to them, as well as the dissolution of corporations now fall under the jurisdiction of the RTC. [Sec. 5.2, RA No. 8799 in relation to P.D. 902-A; Unilongo v. CA, G.R. No. 123910 (1999)] 3. The usurpation of an office in a private corporation falls under the jurisdiction of the RTC under Sec. 5.2, R.A. 8799 in relation to P.D. 902-A; Calleja v. Panday, G.R. No. 168696 (2006)]

REMEDIAL LAW

a. Distinguish: Quo Warranto Under the Rules of Court and Quo Warranto Under the Omnibus Election Code Quo warranto in electoral Quo warranto proceedings [Sec. under Rule 66 253, Omnibus Election Code] Filed by whom The OSG, either mandatory or discretionary, as discussed below. OR

A person claiming to Any voter be entitled to a public office or position usurped or unlawfully held or exercised by another in his own name. [Sec. 5, Rule 66] Where filed When Commenced by Solicitor If against the General: election of a Member RTC Manila, CA, or of Congress, SC regional, provincial or city officer, file in Otherwise: the COMELEC RTC with jurisdiction over the territorial If against a area where municipal or respondent or any of barangay officer, file the respondents in the appropriate resides, CA, or SC RTC or MTC, [Sec. 7, Rule 66] respectively. Period for filing Within one year after Within 10 days after the cause of such proclamation of ouster, or the right of results the petitioner to hold

Page 202 of 525

U.P. LAW BOC

CIVIL PROCEDURE

such office or position, arose [Sec. 11, Rule 66] Issue Issue is legality of the occupancy of the Issue is eligibility of office by virtue of a the person elected. legal appointment. Grounds (against occupants of public offices) a. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; or a. Ineligibility, or b. A public officer b. Disloyalty to the who does or Republic of the suffers an act Philippines which, by the provision of law, constitutes a ground for the forfeiture of his office [Sec. 1, Rule 66] Effect When the respondent is found The occupant who guilty of usurping, was declared intruding into, or ineligible or disloyal unlawfully holding or will be unseated but exercising a public the petitioner may be office, position or declared the rightful franchise, judgment occupant of the shall be rendered office if the that such respondent respondent is be ousted and disqualified and the altogether excluded petitioner received therefrom, and that the second number the petitioner or of votes. [Maquiling relator, as the case v. COMELEC, G.R. may be, recover his No. 195649 (2013)] costs. [Sec. 9, Rule 66]

REMEDIAL LAW

b. When Government Commences an Action Against Individuals or Associations The Solicitor General or a public prosecutor, a. Must bring the action (MANDATORY) either i. When directed by the President, or ii. Upon complaint, where the OSG has good reason to believe that any of the cases in Sec. 1, Rule 66 exist. [Sec. 2, Rule 66] b. May bring the action (DISCRETIONARY) i. At the request of another person, and ii. With the permission of the court [Sec. 3, Rule 66]

c. When Individual Commence an Action

May

An individual may commence the action if he claims to be entitled to the office or position usurped or unlawfully held or exercised by another. [Sec. 5, Rule 66] • He must aver and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage. [General v. Urro, G.R. No. 191560 (2011)] A public utility may bring a quo warranto action against another public utility which has usurped the rights of the former granted under a franchise. [Cui v. Cui, G.R. No. 39773 (1934)] Contents of quo warranto petition The petition shall set forth a. The name of the person who claims to be entitled thereto, if any, b. With an averment of his right to the same and that the respondent is unlawfully in possession thereof. [Sec. 6, Rule 66] When quo warranto filed General rule: An action for quo warranto must be commenced within 1 year after the cause

Page 203 of 525

U.P. LAW BOC

CIVIL PROCEDURE

of such ouster, or the right of the petitioner to hold such office or position, arose. [Sec. 11, Rule 66] - The failure to institute the action within the reglementary period constitutes more than a sufficient basis for its dismissal [Alejo v. Marquez, G.R. No. L-29053 (1971)], since it is not proper that the title to a public office be subjected to continued uncertainty [Villegas v. De la Cruz, G.R. No. L-23752 (1965)] Exception: The prescriptive period does not apply if the failure to file the action can be attributed to acts of a responsible government officer and not of the dismissed employee. [Romualdez-Yap v. CSC, et. al., G.R. No. 104226 (1993)] The pendency of administrative remedies does not operate to suspend the period of 1 year within which a petition for quo warranto should be filed. [Torres v. Quintos, G.R. No. L-3304 (1951)] Reduction of period The court may reduce the period provided by the ROC for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court. [Sec. 8, Rule 66]

d. Judgment in Quo Warranto Action When respondent is found guilty of usurping into, intruding into, or unlawfully holding or exercising a public office, position, or franchise, judgment shall be rendered that: a. Such respondent is ousted and altogether excluded therefrom; and b. Petitioner, as the case may be, recovers his costs. Note: Further judgment may be rendered determining the respective rights in and to the public office, position, or franchise of all parties to the action as justice requires.

REMEDIAL LAW

[Sec. 9, Rule 66]

e. Rights of A Person Adjudged Entitled to Public Office When judgment is rendered in favor of a person averred in the complaint to be entitled to the public office, such person may take upon himself: a. The execution of the office after taking the oath of office and executing any official bond required by the law; b. Demand of the respondent all the books and papers in the respondent’s custody or control appertaining to the office to which judgment relates. - If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. [Sec. 10, Rule 66]

f. Limitations Nothing contained in Rule 66 shall be construed: a. To authorize an action against a public officer or employee for his ouster from office unless the same be commenced within 1 year after the cause of such ouster, or the right of the petitioner to hold office arose, nor b. To allow the person entitled to the office to file for damages unless the action is commenced within 1 year after the entry of judgement establishing the petitioner’s right to the office in question. [Sec. 11, Rule 66]

9. EXPROPRIATION The power of eminent domain is an inherent and indispensable power of the State. Also called the power of expropriation, it is described as the highest and most exact idea of property that may be acquired for some public purpose through a method in the nature

Page 204 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

of a compulsory sale to the State [Manapat v. CA, G.R. No. 110478 (2007)]

[Republic v. Philippine National Bank, G.R. No. L-14158 (1961)]

Requisites 1. The property taken must be private property; 2. There must be genuine necessity to take the private property; 3. The taking must be for public use; 4. There must be payment of just compensation; and 5. The taking must comply with due process of law. [Manapat v. CA, G.R. No. 110478 (2007)]

Where to file File the complaint for expropriation in the RTC where property is located. The MTC has no jurisdiction since an action for expropriation is incapable of pecuniary estimation. [Barangay San Roque v. Heirs of Pastor, G.R. No. 138816 (2000)]

There is taking when the expropriator enters private property not only for a momentary period but for a more permanent duration for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him of all the beneficial enjoyment thereof. [Republic v. Sarabia, G.R. No. 157847 (2005)] Public use means public usefulness, utility, or advantage, or what is productive of the general benefit, so that any appropriation of private property by the State under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. [Reyes v. National Housing Authority, G.R. No.147511 (2003)] Just compensation is the full and fair equivalent of the property taken from its owner by the expropriator. It is considered to be a sum equivalent to the market value of the property, which is defined as the price fixed by the seller in the open market in the usual and ordinary course of legal action and competition. [2 Riano 284-285, 2016 Bantam Ed.] When market value should be fixed: a. If plaintiff takes possession before the institution of proceedings: value is fixed as of time of taking; or b. If taking coincides with or is subsequent to the commencement of proceedings: value is fixed as of date of filing of the complaint.

a. Matters to Allege in Complaint for Expropriation The verified complaint shall a. State with certainty the right and purpose of expropriation, b. Describe the real or personal property sought to be expropriated, and c. Join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. Note: If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. [Sec. 1, Rule 67]

b. Two Stages in Every Action for Expropriation The first phase determines the propriety of the action. The second phase determines the compensation to be paid to the landowner. [National Power Corporation v. Posada, G.R. No. 191945 (2015)] First stage: Propriety of expropriation a. This stage involves the 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 in the suit

Page 205 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. Ends with an order of dismissal or order of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint. 1. An order of dismissal, would be a final one, since it finally disposes of the action and leaves nothing more to be done by the court on the merits. 2. So, too, would an order of condemnation be a final one, for thereafter, as the ROC expressly states, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard.” [National Power Corporation v. Posada, G.R. No. 191945 (2015)]

Note: A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. [Sec. 4, Rule 67] Second Stage: Just compensation a. This stage involves the determination by the Court of "the just compensation for the property sought to be taken” with the assistance of not more than three (3) commissioners. b. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. [National Power Corporation v. Posada, G.R. No. 191945 (2015)]

REMEDIAL LAW

c. When Plaintiff Can Immediately Enter Into Possession of Real Property The plaintiff shall have the right to take or enter upon possession of the real property upon: a. Filing of complaint or at any time thereafter, b. After due notice to defendant, and c. Making a preliminary deposit [Sec. 2, Rule 67] Preliminary deposit If real property: An amount equivalent to the assessed value of the property for purposes of taxation. Value

Where to deposit

If personal property: Its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. With the authorized government depository to be held by such bank subject to the orders of the court. General rule: In money.

Exception: In lieu of money, the court authorizes the deposit of a Form of certificate of deposit of a deposit government bank of the Republic of the Philippines payable on demand to the authorized government depository. The court shall order the sheriff or other proper officer to After forthwith place the plaintiff in deposit possession of the property is made involved and promptly submit a report thereof to the court with service of copies to the parties. [Sec. 2, Rule 67]

Page 206 of 525

U.P. LAW BOC

CIVIL PROCEDURE

d. New System of Immediate Payment of Initial Just Compensation R.A. 10752 (For national government infrastructure projects) Republic Act 10752, also known as “The Right of Way Act” ensures that owners of real property acquired for national government infrastructure projects are promptly paid just compensation for the expeditious acquisition of the required right-of-way for the projects. Upon the filing of the complaint or at any time thereafter, and after due notice to the defendant, the implementing agency shall immediately deposit to the court in favor of the owner the amount equivalent to the sum of a. 100% of the value of the land based on the current relevant zonal valuation of the BIR issued not more than 3 years prior to the filing of the expropriation complaint b. The replacement cost at current market value of the improvements and structures as determined by 1. The implementing agency 2. A government financial institution with adequate experience in property appraisal, and 3. An independent property appraiser accredited by the BSP. c. The current market value of crops and trees located within the property as determined by a government financial institution or an independent property appraiser to be selected as indicated in Sec. 5(a) Upon compliance with the guidelines above mentioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. [Sec. 6, R.A. 10752] For non-government infrastructure projects If expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and deposit mode prescribed in Rule

REMEDIAL LAW

67 continues to apply. In such a case, the government is required only to make an initial deposit with an authorized government depository. [2 Riano 297-298, 2016 Bantam Ed.]

e. Defenses and Objections With objection to No objection to taking taking What to file and serve Notice of appearance and Answer a manifestation Period to file Within the time stated in the summons Contents a. Specifically designate or identify the property in which he claims to have an a. Manifestation to the interest, effect that he has no b. State the objection or defense nature and b. Specifically extent of designating/identifying the interest the property in which claimed, he claims to be and interested c. Adduce all his objections and defenses to the taking of his property Prohibited Counterclaim, cross- claim or third-party complaint in the answer or any

Page 207 of 525

U.P. LAW BOC

CIVIL PROCEDURE

g. Ascertainment Compensation

subsequent pleading

REMEDIAL LAW

of

Just

[Sec. 3, Rule 67] Effect of failure to file answer The failure to file an answer does not produce all the disastrous consequences of default in ordinary civil actions, because the defendant may still present evidence as to just compensation. [Robern Development Corp. v. Quitain, G.R. No. 135042 (1999)]

f. Order of Expropriation When issued a. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or b. When no party appears to defend as required by this Rule. [Sec. 3, Rule 67] Contents of order The court may issue an order of expropriation declaring that: a. The plaintiff has a lawful right to take the property sought to be expropriated, b. For the public use or purpose described in the complaint, c. Upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. [Sec. 4, Rule 67] Remedy of defendant A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. • The order of condemnation is final. Hence, it is appealable. [Heirs of Alberto v. City of Mandaluyong, G.R. No. 135087 (2000)] Note: Such appeal, however, shall not prevent the court from determining the just compensation to be paid. [Sec. 4, Rule 67]

Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. [Sec. 5, Rule 67] Order of appointment The order of appointment shall: a. Designate the time and place of the first session of the hearing to be held by the commissioners, b. Specify the time within which the commissioners' report shall be submitted to the court, c. Be served on the parties. [Sec. 5, Rule 67]

h. Appointment of Commissioners; Commissioner’s Report; Court Action Upon Commissioner's Report Qualifications a. Competent; and b. Disinterested. [Sec. 5, Rule 67] Objection to the appointment Objections to the appointment of any of the commissioners shall be: a. Filed with the court within 10 days from service, and b. Resolved within 30 days after all the commissioners shall have received copies of the objections. [Sec. 5, Rule 67] Duties of commissioners The commissioners shall: a. After due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. • Unless the parties consent to the contrary.

Page 208 of 525

U.P. LAW BOC

CIVIL PROCEDURE

b. Assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. • In no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. [Sec. 6, Rule 67] Action by the court The court may: 1. Order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and 2. Render judgment upon such partial report, and 3. Direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. [Sec. 7, Rule 67] Commissioners’ report The commissioners shall make a full and accurate report to the court of all their proceedings. • Except as otherwise expressly ordered by the court, such reports shall be filed within 60 days from the date the commissioners were notified of their appointment. • Time for submission of the report may be extended at the discretion of the court. • Upon the filing the report, the COC shall serve copies on all interested parties, with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. Note: The commissioners’ proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. [Sec. 7, Rule 67]

REMEDIAL LAW

Action upon commissioner’s report a. Upon the expiration of the period of 10 days for the filing of objections to the commissioner’s report, or b. Before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement, The court may: 1. After hearing, accept the report and render judgment in accordance therewith, or 2. For cause shown, recommit the same to the commissioners for further report of facts, or 3. Set aside the report and appoint new commissioners, or 4. Accept the report in part and reject it in part. The court may make such order or render such judgment as shall secure to the 1. Plaintiff - the property essential to the exercise of his right of expropriation, and to the 2. Defendant - just compensation for the property so taken. [Sec. 8, Rule 67] The appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases. [2 Riano 301, 2016 Bantam Ed.]

i. Rights of Plaintiff Judgment and Payment

Upon

The plaintiff shall have the right to: a. Enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or b. Retain it should he have taken immediate possession thereof under the provisions of Sec. 2, Rule 67. [Sec. 10, Rule 67] Note: Such rights of the plaintiff are not delayed by an appeal from the judgment. [Sec. 11, Rule 67]

Page 209 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

When the rights arise a. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or b. After tender to him of the amount so fixed and payment of the costs. [Sec. 10, Rule 67]

When title to property vests a. Personal property - upon payment of just compensation. [Sec. 10, Rule 67] b. Real property - Upon 1. Payment of just compensation; and 2. Registration of property (by recording of the judgment in the registry of deeds where the property is situated) [Sec. 13, Rule 67]

When payment is to the court If the ownership as to the property is uncertain or there are conflicting claims, the court may order that the payment be made to the court for the benefit of the person adjudged to be entitled thereto. This is to enable the plaintiff to enter the property or retain it. [Sec. 9, Rule 67]

10. FORECLOSURE OF REAL ESTATE MORTGAGE

If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. [Sec. 10, Rule 67] Effect of non-payment of just compensation Non-payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots. However, in cases where the government failed to pay just compensation within 5 years from the finality of judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. [Yujuico v. Atienza, G.R. No. 164282 (2005)]

Foreclosure of mortgage is the process by which a mortgagee acquires an absolute title to the property of which he had previously been only the conditional owner, or upon which he had previously a mere lien or encumbrance. [Benedicto v. Yulo, G.R. No. L-8106 (1913)] Foreclosure is the necessary consequence of non-payment of mortgage indebtedness. The mortgage can be foreclosed only when: 1. The debt remains unpaid at the time it is due [Producers Bank v. CA, G.R. No. 111584 (2001)], or 2. In case of default in the payment of obligation [PNB v. CA, G.R. No. 126908 (2003)] The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. [1 Regalado 852, 2010 Ed.]

a. Kinds of Foreclosure i. Judicial Foreclosure

j. Effect of Recording Judgment Contents of the judgment The judgment rendered shall state definitely: a. By an adequate description, the particular property or interest therein expropriated, and b. The nature of the public use or purpose for which it is expropriated. [Sec. 13, Rule 67]

Judicial foreclosure is a mode of foreclosure that is done pursuant to Rule 68 of the Rules of Court. [2 Riano 313, 2016 Bantam Ed.] ii. Extrajudicial Foreclosure Extrajudicial foreclosure is a mode of foreclosure that is done pursuant to Act 3135,

Page 210 of 525

U.P. LAW BOC

CIVIL PROCEDURE

as amended by Act 4118. [2 Riano 313, 2016 Bantam Ed.] Judicial foreclosure vs. Extrajudicial foreclosure Judicial Extrajudicial foreclosure foreclosure Requires court No court intervention intervention necessary Right of redemption exists; mortgagor has There is only an a right to redeem the equity of property within one redemption. [Huerta year from registration Alba Resort, Inc. v. of the deed of sale. CA, G.R. No. [Huerta Alba Resort, 128567 (2000)] Inc. v. CA, G.R. No. 128567 (2000), citing Act 3135] Governed by Rule Governed by Act 68 3135 No deficiency judgment because There could be a there is no judicial deficiency proceeding in the judgment. [Sec. 6, foreclosure of the Rule 68] mortgage itself. [1 Regalado 859, 2010 Ed.] Deficiency judgment Recovery of shall be rendered, deficiency is through on motion. [1 an independent Regalado 859, 2010 action. [1 Regalado Ed.] 859, 2010 Ed.] Exception: Juridical Exception: persons shall have Mortgagor may the right to redeem exercise right of until, but not after, the redemption within registration of the one year after the certificate of sale, when the loan foreclosure sale with or credit the Register of Deeds accommodation is which in no case shall granted by a bank be more than 3 [Sec. 47, R.A. 8791] months after foreclosure,

REMEDIAL LAW

whichever is earlier. [Sec. 47, R.A. 8791]

b. Need for Special Power of Attorney Extrajudicial foreclosure is the mode to be used if there is a special power inserted in the real estate mortgage contract allowing an extrajudicial foreclosure sale. Where there is no such special power, the foreclosure shall be done judicially following Rule 68. [2 Riano 313, 2016 Bantam Ed.]

c. Authority Judicially

to

Foreclose

Nature of the action An action to foreclose a real estate mortgage may be rightly considered as an action involving interest in real property, hence a real action. [2 Riano 312-313, 2016 Bantam Ed.] Jurisdiction Under BP 129, where the action is one involving title to, or possession of, real property, the determination of jurisdiction shall be made by inquiring into the assessed value of the property. From this point of view, exclusive original jurisdiction would fall either in the MTC or the RTC depending on the assessed value. [2 Riano 312-313, 2016 Bantam Ed.]

d. Procedure Form The complaint shall set forth: a. The date and due execution of the mortgage; b. Its assignments, if any; c. The names and residences of the mortgagor and the mortgagee; d. A description of the mortgaged property;

Page 211 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

e. A statement of the date of the note or other documentary evidence of the obligation secured by the mortgage; f. The amount claimed to be unpaid; and g. The names and residences of all persons having or claiming an interest in the property subordinate in right to the holder of the mortgage. • Such persons shall be made defendants in the action. [Sec. 1, Rule 68] i. Where to File Venue A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved. [Monte de Piedad v. Rodrigo, G.R. No. L-42928 (1936)] ii. Where to Sell In Judicial Foreclosure When the defendant fails to pay the amount of the judgement ascertaining the amount due to the plaintiff upon the mortgage debt, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. [Sec. 3, Rule 68]

In Extrajudicial Foreclosure Said sale cannot be made legally outside of the province in which the property sold is situated; and in case the place within said province in which the sale is to be made is subject to stipulation, such sale shall be made in said place or in the municipal building of the municipality in which the property or part thereof is situated. [Sec. 2, Act 3135] iii. Posting Requirement Judicial Foreclosure Requirement Before the sale of real property, it is required that there be posting for 20 days in 3 public places, preferably in conspicuous areas of the municipal or city hall, post office, and public market in the municipality or city where the sale is to take place. Such notice must particularly describe the property and state where the property is to be sold. [Sec 15(c), Rule 39] Extrajudicial Foreclosure Requirement Notice shall be given by posting notices of the sale for not less than 20 days in at least 3 public places of the municipality or city where the property is situated. [Sec. 3, Act 3135] Effect of failure to Post Notice The failure to post a notice is not per se a ground for invalidating the sale provided that the notice thereof is duly published in a newspaper of general circulation. [DBP v. Aguirre, G.R. No. 144877 (2001)] iv. Publication Requirement

Under Rule 39, the notice of sale shall specify the place, date, and exact time of the sale. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of real property shall be held in the office of the clerk of court in the RTC or MTC which issued the writ, or which was designated by the appellate court. [Sec. 15, Rule 39]

1. Sufficiency Publication

of

Newspaper

Judicial Foreclosure If the assessed value of the property exceeds P50,000, one must also publish a copy of the notice once a week for 2 consecutive weeks in one newspaper having general circulation in the province or city. [Sec. 15(c), Rule 39]

Page 212 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Extrajudicial Foreclosure If such property is worth more than P400, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city. [Sec. 3, Act 3135] 2. Need for Republication in Case of Postponement During extrajudicial foreclosure proceedings under Act 3135, republication as well as reposting of the notice of sale is required if the foreclosure does not proceed on the date originally intended. The lack of republication of the notice of the foreclosure sale renders it void. [Metrobank v. Nikko, G.R. No. 178479, (2009)] 3. Personal Notice to The Mortgagor When and When Not Needed Judicial foreclosure The mortgagor is notified through the service of summons. [Sec. 1, Rule 68] Extrajudicial foreclosure General Rule: Personal notice to the mortgagor in extrajudicial foreclosure proceedings is not necessary, and posting and publication will suffice. Exception: When the parties stipulate that personal notice is additionally required to be given the mortgagor. Failure to abide by the general rule, or its exception, renders the foreclosure proceedings null and void. [Paradigm v. BPI, G.R. No. 191174 (2017)]

REMEDIAL LAW

e. Possession by Purchaser of Foreclosed Property Judicial Foreclosure General Rule: Upon the finality of the order of confirmation or upon the expiration of the period of redemption, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property. • Order of confirmation; After the foreclosure sale, the mortgagee should file a motion for the confirmation of the sale. Such requires notice and hearing. During the hearing, the mortgagor will be allowed to show why the sale should not be confirmed. If, after such, the court finds ground to confirm, it shall issue the order of confirmation. [2 Riano 318-319, 2016 Bantam Ed.] • Such order removes from the parties the right to the property, and grants such right to the purchaser, subject to redemption. [2 Riano 319, 2016 Bantam Ed.] • Such order of confirmation is appealable. [2 Riano 320, 2016 Bantam Ed.] Exception: When a third party is actually holding the same adversely to the judgement obligor. In such a case, the purchaser or the last redemptioner may secure a writ of possession, upon motion, from the court. [Sec. 3, Rule 68] Extrajudicial Foreclosure The purchaser may petition the RTC of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. [Sec. 7, Act 3135]

Page 213 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

f. Remedy of Debtor Foreclosure is Not Proper

if Equity of redemption

Judicial Foreclosure The debtor-mortgagor is allowed the opportunity to show why the sale should not be confirmed during the hearing on the motion of confirmation of the sale. [2 Riano 318, 2016 Bantam Ed.] A failure to give notice of the hearing for motion of confirmation is good cause for setting aside the sale. [Grimalt v. Velasquez, 36 Phil 936 (1917)] Extrajudicial Foreclosure The debtor may, in the proceedings in which possession was requested, but not later than 30 days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof. [Sec. 8, Act 3135]

g. Redemption There is no right of redemption in a judicial foreclosure under Rule 68. This right exists only in extrajudicial foreclosure where there is always a right of redemption within one year from the date of sale, but interpreted by the court to mean one year from the registration of the sale. In judicial foreclosure, there is only an equity of redemption which can be exercised prior to the order of confirmation of the foreclosure sale. This means that after the 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. • Exception: There is a right of redemption in a judicial foreclosure if the foreclosure is in favor of banks, as provided for in the General Banking Law. [Sec. 47]

redemption

vs.

Right

of

Equity of redemption

Right of redemption

Right of defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120-day period after entry of judgment or even after the foreclosure sale but prior to its confirmation

Right of the debtor, his successor in interest, or any judicial creditor of said debtor or any person having a lien on the property subsequent to the mortgage.

Governed by Rule 68

Governed by Secs. 29-31, Rule 39

Note: What Secs. 2-3, Rule 68 provide for is the mortgagor’s equity of redemption. This may be exercised by him even beyond the period to pay the judgment obligation (i.e. 90-120 days) and even after the foreclosure sale itself, provided it be before the order of the confirmation of sale. [Rosales v. Alfonso, G.R. No. 137792 (2003)] i. Who May Redeem Judicial Foreclosure The equity of redemption is the mortgagor’s equity to be able to extinguish the mortgage and retain ownership of the property. [2 Riano 316, 2016 edition] Extrajudicial Foreclosure The debtor, his successors in interest or any judicial creditor or judgment creditor of said debtor, or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold, may redeem the same. [Sec. 6, Act 3135] Note: The period for redemption in extrajudicial foreclosure is shortened when the mortgagor is a juridical person. The period of redemption is

Page 214 of 525

U.P. LAW BOC

REMEDIAL LAW

CIVIL PROCEDURE

“until but not after” the registration of certificate of sale with the Register of Deeds, “which in no case shall be more than 3 months after foreclosure, whichever is earlier.” [2 Riano 317, 2016 Bantam Ed.] ii. Amount of Redemption Price In equity of redemption, the price that needs to be paid in order to retain ownership of the property and extinguish the mortgage would be the debt amount. [2 Riano 317, 2016 Bantam Ed.] With respect to the right of redemption, the amount of the purchase price differs depending on whether the entity redeeming is a bank or not. 1. Bank redemptioner - The redemption price shall be: a. The amount due under the mortgage deed, b. Interest rate specified in the mortgage, and c. Expenses incurred by the bank from the sale of the property. 2. Non-bank redemptioner - The redemption price shall be a. Full amount paid by the purchaser, b. 1% interest per month on the purchase price, up to the time of redemption, c. Taxes assessed that purchaser paid, and d. Interest of 1% on the taxes assessed. [De Leon 557, Comments and Cases on Credit Transactions, 2016 Ed.]

foreclosure sale but prior to confirmation. iv. Effect of Pendency of Action for Annulment of Sale The pendency of a suit for annulment of the foreclosure proceedings does not defeat the right of the purchaser to a writ of possession to which the purchaser becomes entitled to as a matter of right. Note: An injunction to prohibit the enforcement of the writ is entirely out of place. [Carpo v. Chua, 471 SCRA 471 (2005)]

h. Writ of Possession The writ of possession is a means of recognizing and enforcing the rights of the purchaser, since the confirmation of the foreclosure sale operates to divest all parties to the action of their rights in the property and vests them in the purchaser. [2 Riano 320, 2016 Bantam Ed.] i. Ministerial Duty of the Court The purchaser shall be entitled to a writ of possession upon: a. Finality of the order of confirmation, or b. Expiration of the period for redemption. Such writ shall be issued upon motion. Hence the purchaser or last redemptioner must file a motion for the issuance of a writ of possession. [2 Riano 320, 2016 Bantam Ed.] ii. Enforcement Against Third Parties

iii. Period for Redemption Equity of redemption Period is 90-120 days after entry of judgment or even after

Right of redemption Period is 1 year from date of registration of certificate of sale.

The obligation of a court to issue a writ of possession ceases to be ministerial when a third-party in possession of the property claims a right that is adverse to that of the debtormortgagor.

Page 215 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Remedy Where such third party claim and possession exist, the trial court should conduct a hearing to determine the nature of the adverse possession. [Barican v. IAC, G.R. No. 79906, (1988)] Such is the case because a third party cannot be dispossessed on the strength of a mere possessory writ. [De Leon 589, Comments and Cases on Credit Transactions, 2016 Ed.] iii. Pendency of action for annulment of sale A pending suit for annulment of the mortgage or annulment of the foreclosure proceedings does not defeat the right of the purchaser to a writ of possession to which the purchaser is entitled to as a matter of right. An injunction to prohibit the issuance or enforcement of the writ is entirely out of place. [Carpo v. Chua, G.R. No. 150773, (2005)]

agreement and suitable instruments of conveyance without recourse to an action. [Sec. 12, Rule 69] Nature An action for partition and accounting under Rule 69 is in the nature of an action quasi in rem. Such action is essentially for the purpose of affecting the defendant’s interest in a specific property and not to render a judgment against him. [Valmonte v. CA, G.R. No. 108538 (1996)] When partition can be done General rule: Prescription does not run in favor of a co-owner or co-heirs as long as there is a recognition of the co-ownership, expressly or impliedly. [2 Riano 416, 2012 Bantam Ed.] Exception: If a co-owner asserts adverse title to the property, in which case, the prescription period runs from such time of assertion of the adverse title. [De Castro v. Echarri, G.R. No. 5609 (1911)]

i. Annulment of Sale See discussion on 6. Remedy of debtor if foreclosure not proper.

11.

PARTITION

Definition Partition is the separation, division and assignment of a thing held in common among those to whom it may belong. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition. [Marcos v. Heirs of Isidro Bangi, G.R. No. 185745 (2014)] Partition may be: 1. Judicial – Procedure is Rule 69 2. Extrajudicial – No court intervention is required Nothing in Rule 69 contained shall be construed so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by

REMEDIAL LAW

a. Who May File Complaint; Who Should Be Made Defendants Who may file A person having the right to compel the partition of real estate. [Sec. 1, Rule 69] Who should be made defendants All other persons interested in the property. [Sec. 1, Rule 69] Jurisdiction The courts with jurisdiction over the action for partition are the MTC or the RTC depending on the value of the property. If the value of the property is below such threshold, then the MTC has jurisdiction. If the value is greater, then the RTC has jurisdiction.

b. Matters to Allege in Complaint for Partition

the

a. The nature and extent of his title; b. Adequate description of the real estate of which partition is demanded; and

Page 216 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. Join as defendants all other persons interested in the property. [Sec. 1, Rule 69] d. Demand for accounting of the rents, profits, and other income from the property to which he may be entitled to as his share [Sec. 8, Rule 69] Since these cannot be demanded in another action (because they are part of the cause of action for partition), they are barred if not set up. [2 Riano 420, 2012 Bantam Ed.]

c. Two Stages in Every Action for Partition First stage - Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. [Lacbayan v. Samoy, G.R. No. 165427 (2011)]

d. Order of Partition and Partition by Agreement Order of partition If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. [Sec. 2, Rule 69] Partition by agreement a. The parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, b. The court shall confirm the partition so agreed upon by all the parties, and c. Such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. [Sec. 2, Rule 69]

e. Partition by Commissioners; Appointment of Commissioners, Commissioner’s Report; Court Action Upon Commissioner’s Report

The order may also require an accounting of rents and profits recovered by the defendant. [Miranda v. CA, G.R. No. L-33007 (1976)] Remedy A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. [Sec. 2, Rule 69] If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA, G.R. No.109387 (1994)] Second stage - Actual partitioning of the subject property There can be no partition again because there is no more common property. [Noceda v. CA, G.R. No. 119730 (1999)] The action for partition is subject to multiple appeals and would require a record on appeal. [Roman Catholic Archbishop of Manila v. CA, G.R. No. 77425 (1991)]

REMEDIAL LAW

When proper When the parties are unable to agree upon the partition. [Sec. 3, Rule 69] Action of the court a. The court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, b. Commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Sec. 3, Rule 69] Oath of commissioners Before making such a partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. [Sec. 4, Rule 69]

Page 217 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Duties of commissioners a. View and examine the real estate, after due notice to the parties to attend at such view and examination, b. Hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and c. Set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. [Sec. 4, Rule 69] Note: The provision authorizes the commissioners merely to make or effect the partition. It does not grant them the authority to adjudicate on questions of title or ownership. [1 Riano 424, 2012 Bantam Ed.] Assignment of real estate to one party General rule: When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable. Exception: If one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. [Sec. 5, Rule 69] Commissioner’s report a. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. b. Upon the filing of such a report, the COC shall serve copies thereof on all the interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire.

REMEDIAL LAW

Note: No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon. [Sec. 6, Rule 69] Hearing on the report a. Upon the expiration of the period of 10 days to file objections, or b. Even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may 1. Upon hearing, accept the report and render judgment in accordance therewith, or, 2. For cause shown, recommit the same to the commissioners for further report of facts, or 3. Set aside the report and appoint new commissioners, or 4. Accept the report in part and reject it in part. The court may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. [Sec. 7, Rule 69]

f. Judgment and Its Effects Contents of Effects of judgment judgment If actual partition is properly made Judgment shall state definitely, by metes Judgment shall vest and bounds and in each party to the adequate action in severalty description, the the portion of the real particular portion of estate assigned to the real estate him assigned to each party If the whole property is assigned to one of the parties after payment

Page 218 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action If the property is sold and the sale confirmed by the court Judgment shall vest Judgment shall state the real estate in the the name of the purchaser or purchaser or purchasers making purchasers and a the payment or definite description payments, free from of the parcels of real the claims of any of estate sold to each the parties to the purchaser action [Sec. 11, Rule 69] Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action. [Sec. 11, Rule 69]

g. Partition of Personal Property The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable [Sec. 13, Rule 69]

h. Prescription of Action General rule: The right of action to demand partition does not prescribe. [De Castro v. Echarri, G.R. No. 5609 (1911)] Exception: Where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova, G.R. No. L-9936 (1958)]

REMEDIAL LAW

Note: If a co-owner repudiates the coownership and makes known such repudiation to the other co- owners, then partition is no longer a proper remedy of the aggrieved coowner. He must file an accion reivindicatoria, which is prescriptible. [Roque v. IAC, G.R. No. 75886 (1988)]

i. When Partition is Not Allowed The following instances are cases when a coowner cannot demand partition, to wit: a. There is an agreement among the coowners to keep the property undivided for a certain period of time not exceeding 10 years. The term may however be extended by a new agreement. [Art. 494, Civil Code] b. When partition is prohibited by the donor or testator for a period not exceeding 20 years. [Art. 494, Civil Code] c. When a partition is prohibited by law. [Art 494, Civil Code] d. When the property is not subject to a physical division and to do so would render it unserviceable for the use for which it is intended. [Art. 495, Civil Code] e. When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084, Civil Code]

12. FORCIBLE ENTRY AND UNLAWFUL DETAINER Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession of property. [Tubiano v. Razo, G.R. No. 132598 (2000)] The actions for forcible entry and unlawful detainer belong to the class of actions known by the generic name accion interdictal (ejectment) where the issue is the right of physical or material possession of the subject real property independent of any claim of ownership by the parties involved. [A.

Page 219 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Francisco Realty and Development Corp. v. CA, G.R. No. 125055 (1988)]

a. Definitions and Distinction Forcible entry (detentacion) Possession of land by the defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat, or stealth (FISTS) [Dikit v. Ycasiano, G.R. No. L-3621 (1951)] No previous demand for the defendant to vacate the premises is necessary. [Sec. 2, Rule 70; Medel v. Militante, G.R. No. 16096 (1921)] Plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by defendant [Pharma Industries, Inc. v. Pajarillaga, G.R. No. 53788 (1980)] The 1-year period is generally counted from the date of actual entry on land [1 Regalado 873, 2010 Ed.]

Unlawful detainer (desahucio) Possession is initially lawful but it becomes illegal by reason of the termination of his right to possession of the property under his contract (express or implied) with the plaintiff [Dikit v. Ycasiano, G.R. No. L-3621 (1951)] Demand is jurisdictional [Sec. 2, Rule 70; Medel v. Militante, G.R. No. 16096 (1921)].

Plaintiff need not have been in prior physical possession [Pharma Industries, Inc. v. Pajarillaga, G.R. No. 53788 (1980)] Period is counted from the date of last demand [Sarona v. Villegas, G.R. No. L22984 (1968)]] or last letter of demand [DBP v. Canonoy, G.R. No. L-29422, (1970)]

REMEDIAL LAW

In order to constitute force, the act of going to the property and excluding the lawful possessor necessary implies the exertion of force over the property which is all that is necessary and sufficient to show that the action is based on Sec. 1, Rule 70. [Bunyi v. Factor, G.R. No. 172547 (2009)]

b. Distinguish: Forcible Entry, Unlawful Detainer, Accion Publiciana, and Accion Reivindicatoria Three (3) kinds of action for recovery of possession Accion interdictal Summary action for recovery of physical possession where the dispossessio n has not lasted for more than one year [1 Regalado 871-872, 2010 Ed.]

Accion Accion publiciana reivindicatoria Plenary action for recovery of real right of possession when dispossessi on has lasted for more than one year [1 Regalado 872, 2010 Ed.]

An action for recovery of possession based on ownership [1 Regalado 872, 2010 Ed.]

RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Manila or P50,000 within MTC has Metro Manila. jurisdiction [Sec. 33(2), MTC has jurisdiction if value B.P. 129, as of property does not exceed amended] the above amounts

Page 220 of 525

[Sec. 19 and 33, B.P. 129, as amended]

U.P. LAW BOC

c. Jurisdiction in Publiciana and Reivindicatoria

CIVIL PROCEDURE

Accion Accion

Accion publiciana and accion reivindicatoria a. RTC has jurisdiction where the assessed value of the property exceeds PHP 20,000 or, in Metro Manila, PHP 50,000; b. MTC has jurisdiction if the assessed value does not exceed said amounts [Secs. 19 and 33, B.P. 129, as amended by R.A. 7691] Where the basic issue is not possession but interpretation, enforcement and/or rescission of the contract, it is no longer an ejectment suit. [Villena v. Chavez, G.R. No. 148126 (2003)] Accion interdictal Exclusive original jurisdiction over forcible entry and unlawful detainer suits is with the MTC. [Sec. 33(2), B.P. 129]

d. Who May Institute the Action and When; Against Whom the Action May be Maintained In Forcible Entry A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth. In unlawful detainer a. Lessor, vendor, vendee, or other person against whom any land or building is unlawfully withheld; or b. His legal representatives or assigns. [Sec. 1, Rule 70] Period of filing Within 1 year after the unlawful deprivation or withholding of possession. [Sec. 1, Rule 70] Reckoning points: a. For forcible entry General Rule: It is counted from the date of actual entry on the land. [1 Regalado 873, 2010 Ed.]

REMEDIAL LAW

Exception: In case of stealth or strategy, from the time plaintiff learned of entry. [Vda. de Prieto v. Reyes, G.R. No. L-21740 (1965)] b. For unlawful detainer It is counted from the date of last demand. [Sarona v. Villegas, G.R. No. L-22984 (1968)]

Against whom may the action be maintained Person or persons unlawfully withholding or depriving of possession, or any person/s claiming under them. [Sec. 1, Rule 70]

e. Pleadings Allowed The only pleadings allowed to be filed are the a. Complaint b. Compulsory counterclaim pleaded in the answer c. Cross-claim pleaded in the answer, and d. Answers thereto [Sec. 4, Rule 70] Note: Pleadings must be verified. [Sec. 4, Rule 70] What must be alleged in the complaints Forcible entry Unlawful detainer a. Plaintiff had prior a. Initially, physical possession of possession of the property by the property defendant was b. The defendant by contract deprived him of with or by such possession tolerance of by means of the plaintiff FISTS [Abad v. b. Eventually, Farrales, G.R. No. such 178635 (2011), possession citing Sec. 1, Rule became illegal 70] upon notice by c. That the plaintiff to complaint was defendant of filed within 1 year the termination from of the latter's dispossession right of [Sec. 1, Rule 70; possession

Page 221 of 525

U.P. LAW BOC

1 Regalado 533, 2010 Ed.] Note: First two requirements are jurisdictional [Abad v. Farrales, G.R. No. 178635 (2011)]

CIVIL PROCEDURE

c. Thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof, and d. Within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment [French v. CA, G.R. No. 220057 (2017)]

Note: Mere failure to pay rent does not ipso facto make unlawful the tenant’s possession. It is the demand to vacate and refusal to vacate which makes unlawful the withholding of possession. [Canaynay v. Sarmiento, G.R. No. L-1246 (1947)]

f. Action on the Complaint Motu proprio dismissal The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein [Sec. 5, Rule 70] Issuance of summons If no ground for dismissal is found, it shall forthwith issue summons. [Sec. 5, Rule 70] Answer a. Within 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff.

REMEDIAL LAW



Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. • Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. b. The answer to counterclaims or crossclaims shall be served and filed within 10 days from service of the answer in which they are pleaded. [Sec. 6, Rule 70] Effect of failure to answer a. Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. • The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of Sec. 3(c), Rule 9 if there are two or more defendants. [Sec. 7, Rule 70] Preliminary conference A preliminary conference shall be held not later than 30 days after the last answer is filed. • The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of Rule 70 a. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. b. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. c. All cross-claims shall be dismissed. d. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section.

Page 222 of 525

U.P. LAW BOC



CIVIL PROCEDURE

This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. [Sec. 8, Rule 70] Submission of affidavits and position papers Within 10 days from receipt of the order mentioned in the next preceding section, the parties shall submit: a. The affidavits of their witnesses, b. Other evidence on the factual issues defined in the order, and c. Position papers setting forth the law and the facts relied upon by them. [Sec. 10, Rule 70] Judgment The court shall render judgment: a. Within 30 days after receipt of the affidavits and position papers, or b. After the expiration of the period for filing the same. However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order a. Specifying the matters to be clarified, and b. Require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after the receipt of the last affidavit or the expiration of the period for filing the same. [Sec. 11, Rule 70]

g. When Demand is Necessary Unless otherwise stipulated, such action by the lessor shall be commenced only after demand. [Sec. 2, Rule 70]

REMEDIAL LAW

Contents Demand made upon the lessee to a. Pay or comply with the conditions of the lease, and b. Vacate. [Sec. 2, Rule 70] Form a. By service of written notice of such demand upon the person found on the premises, or b. By posting of the written notice on the premises if no person be found thereon, or [Sec. 2, Rule 70] c. Orally. [Jakihaca v. Aquino, G.R. No. 83982 (1990)] Period to comply with demand The defendant should comply with the demand within a. 15 days in the case of lands, or b. 5 days in the case of buildings [Sec. 2, Rule 70] When demand not required: a. When parties stipulate that demand shall not be necessary [Sec. 2, Rule 70]; or b. When action is predicated on the expiration of the lease. [Labastida v. CA, G.R. No. 110174 (1998)] When possession unlawful It is only when the defendant fails to comply with the demand within the periods provided by Sec. 2 that his possession becomes unlawful. (Quevada v. Garcia, G.R. No. 140798 (2006) A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. [Dakudao v. Consolacion, G.R. No. L-54753 (1983)] Note: Demand is not required in forcible entry suits [Dela Cruz v. CA, G.R. No. 139442 (2006)]

Page 223 of 525

U.P. LAW BOC

h. Preliminary Preliminary Injunction

CIVIL PROCEDURE

Injunction and Mandatory

The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to prevent the defendant from committing further acts of dispossession against the plaintiff. [Sec. 15, Rule 70] Preliminary mandatory injunction A possessor deprived of his possession through forcible entry or unlawful detainer may, within 5 days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from the filing thereof. [Sec. 15, Rule 70] When available a. Within 5 days from the filing of the complaint [Sec. 15, Rule 70] b. On appeal to the RTC upon motion of the plaintiff within 10 days from perfection of appeal [Sec. 20, Rule 70] Note: The injunction on appeal is to restore to plaintiff in possession if the court is satisfied that: a. Defendant’s appeal is frivolous or dilatory, or b. The appeal of plaintiff is prima facie meritorious. [Sec. 20, Rule 70] MTC can also issue a preliminary mandatory injunction in an unlawful detainer case. [Day v. RTC of Zamboanga, G.R. No. 71119 (1990)] Preliminary preventive injunction Preliminary preventive injunction is available in either case. Note that Sec. 15 makes the provisions of Rule 58 applicable to Rule 70. [1 Regalado 891, 2010 Ed.]

i. Resolving Ownership

Defense

of

REMEDIAL LAW

When the defendant raises the questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. [Sec. 33(2), B.P. 129, as amended by R.A. 7691] Refugia guidelines a. The primal rule is that the principal issue must be that of possession, and that ownership is merely ancillary thereto, in which case the issue of ownership may be resolved but only for the purpose of determining the issue of possession. b. It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession. c. The inferior court cannot adjudicate on the nature of ownership where the relationship of lessor and lessee has been sufficiently established in the ejectment case, unless it is sufficiently established that there has been a subsequent change in or termination of that relationship between the parties. • This is because under Sec. 2(b), Rule 131, the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. d. The rule in forcible entry cases, but not in those for unlawful detainer, is that a party who can prove prior possession can recover such possession even against the owner himself. Regardless of the actual condition of the title to the property and whatever may be the character of his prior possession, if he has in his favor priority in time, he has the security that entitles him to remain on the property until he is lawfully ejected by a person having a better right through an accion publiciana or accion reivindicatoria. • Corollarily, if prior possession may be ascertained in some other way, then the inferior court cannot dwell upon or intrude into the issue of ownership. e. Where the question of who has prior possession hinges on the question of

Page 224 of 525

U.P. LAW BOC

CIVIL PROCEDURE

who the real owner of the disputed portion is, the inferior court may resolve the issue of ownership and make a declaration as to who among the contending parties is the real owner. In the same vein, where the resolution of the issue of possession hinges on a determination of the validity and interpretation of the document of title or any other contract on which the claim of possession is premised, the inferior court may likewise pass upon these issues. This is because, and it must be so understood, that any such pronouncement made affecting ownership of the disputed portion is to be regarded merely as provisional, hence, does not bar nor prejudice an action between the same parties involving title to the land. [Refugia v. CA, G.R. No. 118284 (1996)] Judgment for ejectment cannot be enforced against a co-owner who was not made a party to the action. [Cruzcosa v. Concepcion, G.R. No. L-11146 (1957)]

j.

determined by the judgment of the lower court on or before the 10th day of each succeeding month or period. [Sec. 19, Rule 70] Note: All these requisites must concur. Judgment of the RTC The judgment of RTC against the defendant shall be immediately executory, without prejudice to further appeal that may be taken therefrom. [Sec. 21, Rule 70] Summary procedure General rule: All actions for forcible entry and unlawful detainer shall be governed by the summary procedure of Rule 70, irrespective of the amount of damages or unpaid rentals sought to be recovered. Exceptions: a. In cases covered by agricultural tenancy laws; or b. When the law otherwise expressly provides. [Sec. 3, Rule 70]

How to Stay the Immediate Execution of Judgment

Judgment of MTC General rule: Judgment of the MTC against defendant in ejectment cases is immediately executory upon motion. Exceptions: a. An appeal has been perfected and b. The defendant who seeks to stay execution files a sufficient supersedeas bond, approved by the MTC and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and c. During the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the MTC. In the absence of a contract, he shall deposit with the RTC the reasonable value of the use and occupation of the premises for the preceding month or period at the rate

REMEDIAL LAW

k. Prohibited Motions

Pleadings

and

a. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with Sec. 12, Rule 70 (referral for conciliation) b. Motion for a bill of particulars c. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial d. Petition for relief from judgment e. Motion for extension of time to file pleadings, affidavits or any other paper f. Memoranda g. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court h. Motion to declare the defendant in default i. Dilatory motions for postponement j. Reply k. Third-party complaints l. Interventions [Sec. 13, Rule 70]

Page 225 of 525

U.P. LAW BOC

13.

CONTEMPT

Definition Contempt of court is disobedience to the court by acting in opposition to its authority, justice, and dignity. • It signifies not only a willful disregard or disobedience to the court’s orders but also conduct tending to bring the authority of the court and administration of law into disrepute, or, in some manner, to impede the due administration of justice. [Siy v. NLRC, G.R. No. 158971 (2012)] Nature The power to declare a person in contempt of court and in dealing with him accordingly is an inherent power of the court. It is used as a means to protect and preserve the dignity of the court, the solemnity of the proceedings, and administration of justice. [Montenegro v. Montenegro, G.R. No. 156829 (2004)] Generally, a non-party may not be liable for contempt unless he is guilty of conspiracy with any of the parties in violating the court’s orders. [Desa Enterprises Inc. v. SEC, G.R. No. L45430 (1982)]

a. Kinds of Contempt According to nature a. Criminal contempt: Conduct directed against the authority and dignity of the court or a judge acting judicially. b. Civil contempt: Failure to do something ordered to be done by a court or by a judge for the benefit of the opposing party. [Lorenzo Shipping v. Distribution Management, G.R. No. 155849 (2011)] Criminal contempt Punitive in nature Purpose is to preserve the court’s authority and to punish for

REMEDIAL LAW

CIVIL PROCEDURE

Civil contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order; for the

disobedience its orders

of

Intent necessary

is

preservation rights of persons

of the private

Intent is not necessary

Instituted by the aggrieved party, or his State is the real successor, or someone prosecutor who has a pecuniary interest in the right to be protected Proof required is more Proof required is than mere proof beyond preponderance of reasonable doubt evidence If accused is If judgment is for acquitted, there respondent, there can can be no appeal be an appeal [1 Regalado 909, 2010 Ed.] According to manner of commission a. Direct contempt: Act committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same. b. Indirect contempt: 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. [Lorenzo Shipping v. Distribution Management, G.R. No. 155849 (2011)] Direct contempt Summary in nature Punishment a. If committed against the RTC: Fine of not exceeding PHP 2,000 and/or imprisonment not exceeding 10 days or both b. If committed against the

Page 226 of 525

Indirect contempt There is charge and hearing Punishment a. If committed against RTC: Fine not exceeding PHP 30,000 and/or imprisonment not exceeding 6 months or both b. If committed against MTC:

U.P. LAW BOC

CIVIL PROCEDURE

MTC: Fine not Fine not exceeding PHP exceeding PHP 200 and or 5,000 and/or imprisonment imprisonment not exceeding 1 not exceeding 1 day or both month or both Remedy is certiorari Remedy is appeal or prohibition Otherwise known as Otherwise known as Contempt in Facie Constructive Curiae Contempt [1 Regalado 909, 2010 Ed.] Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of contemptuous act. [Montenegro v. Montenegro, G.R. No. 156829 (2004)] The real character of the proceedings in contempt cases is to be determined by the relief sought or by the dominant purpose. The proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial. [Montenegro v. Montenegro, G.R. No. 156829 (2004)]

b. Purpose and Nature of Each DIRECT CONTEMPT For a person to be adjudged guilty of direct contempt, he must commit a misbehavior in the presence of or so near a judge as to interrupt the administration of justice. [SBMA v. Rodriguez, G.R. No. 160270 (2010)] Grounds Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including a. Disrespect toward the court b. Offensive personalities toward others, or c. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. [Sec. 1, Rule 71]

REMEDIAL LAW

Other examples: a. Willful and deliberate forum shopping [Sec. 5, Rule 7] b. Submission of pleadings containing derogatory, offensive, and malicious statements submitted to the court [Re: Letter of Atty. Noel Sorreda, A.M. No. 053-4-SC (2005)] Procedure Summarily adjudged in contempt by such court. [Sec. 1, Rule 71] INDIRECT CONTEMPT See Acts deemed punishable as indirect contempt below.

c. Remedy Against Contempt; Penalty

Direct

The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. [Sec. 2, Rule 71] Effect of petition The execution of the judgment shall be suspended pending resolution of such petition, provided such person file a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. [Sec. 2, Rule 71] Penalties Offense

Penalty Fine not exceeding PHP If RTC or a court 2,000 or imprisonment of equivalent or not exceeding 10 days higher rank or both Fine not exceeding PHP If lower court 200 or imprisonment not exceeding 1 day or both [Sec. 1, Rule 71]

Page 227 of 525

U.P. LAW BOC

CIVIL PROCEDURE

d. Remedy Against Contempt; Penalty

Indirect

The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal cases. Effect of appeal Execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court front which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order. [Sec. 11, Rule 71] A contempt proceeding, whether civil or criminal, is still a criminal proceeding, hence, acquittal is a bar to a second prosecution. The distinction is only for the purpose of determining the character of the punishment to be administered. [Santiago v. Anunciacion, G.R. No. 89318 (1990)] Penalties Offense If committed against RTC, or a court of equivalent or higher rank

Penalty Fine not exceeding PHP 30,000 or imprisonment not exceeding 6 months, or both [Sec. 7, Rule 71]

Fine not exceeding PHP If committed 500, or imprisonment not against lower exceeding 1 month, or court both [Sec. 7, Rule 71] Offender may also be ordered to make complete restitution to If the contempt the party injured by such consists in the violation of the property violation of a involved or such amount writ of as may be alleged and injunction, proved [Sec. 7, Rule 71] TRO, or status quo order If there is nothing more to return, offender is personally liable for the restitution of the money

REMEDIAL LAW

equivalent to the lost thing [Rosario Textile Mills v. CA, G.R. No. 137326 (2003)] Penalty shall depend If committed upon the provisions of against a person the law which authorizes or entity penalty for contempt exercising quasi- against such persons or judicial functions entities [Sec. 12, Rule 71]

e. How Contempt Are Commenced

Proceedings

DIRECT CONTEMPT By whom initiated: a. Generally, civil contempt proceedings should be instituted by an aggrieved party, or his successor, or someone who has pecuniary interest in the right to be protected. b. In criminal contempt proceedings, it is generally held that the State is the real prosecutor. [People v. Godoy, G.R. Nos. 115908-09 (1995)] INDIRECT CONTEMPT Two modes of commencing a proceeding a. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. b. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. • If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and

Page 228 of 525

U.P. LAW BOC

CIVIL PROCEDURE

decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. [Sec. 4, Rule 70] Where to file charge a. Where the charge for indirect contempt has been committed against a RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. b. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place in the same manner as provided in Sec. 2, Rule 71. [Sec. 5, Rule 71]

f. Acts Deemed Punishable as Indirect Contempt a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions b. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto c. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Sec. 1, Rule 71 d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice

REMEDIAL LAW

e. Assuming to be an attorney or an officer of a court, and acting as such without authority; f. Failure to obey a subpoena duly served g. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him [Sec. 3, Rule 71]

Other examples a. Submission, of a false certification of nonforum shopping or non-compliance with any of the undertakings [Sec. 5, Rule 7] b. Upon a judgment obligor’s failure to pay any such installment when due without good excuse, if the court orders him to pay the judgment in fixed monthly installments [Sec. 40, Rule 39]

g. When Imprisonment Shall Be Imposed a. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. [Sec. 8, Rule 71] b. When the respondent “carried the keys to his prison in his own pocket.” [Galvez v. Republic Surety & Insurance Co., Inc., G.R. No. L-12581 (1959)] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v. Limsiaco, Jr., AM No. MTJ-01-1362 (2005)] Sec. 8, Rule 71 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. The nonpayment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [1 Regalado 920, 2010 Ed.]

Page 229 of 525

U.P. LAW BOC

h. Contempt Against judicial Bodies

REMEDIAL LAW

CIVIL PROCEDURE

Quasi-

Applicability of the rules Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. [Sec. 12, Rule 71]. It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. (e.g. DARAB has no power to decide the contempt charge filed before it) [Land Bank v. Listana, G.R. No. 152611 (2003)] Acts or violations against quasi-judicial bodies punishable as contempt: Where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [1 Regalado 921-922, 2010 Ed., citing People v. Mendoza, G.R. No. L-5059-60 (1953), see Sec. 13, Chapter 3, Book VII, Admin Code] Note: Parts VI-VIII of the 2020 Bar Syllabus are discussed under Special Procedure, Criminal Procedure, and Evidence.

I. REVISED RULES ON SUMMARY PROCEDURE 1. CASES COVERED BY THE RULE [The 1991 Procedure]

Revised

Rule

on

Summary

Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction: Civil cases 1. Cases of forcible entry and unlawful detainer a. Irrespective of the amount of damages or unpaid rentals sought to be recovered b. Where attorney’s fees are awarded, it shall not exceed P20,000 2. All other civil cases where total amount of plaintiff’s claim does not exceed PHP 100,000 or PHP 200,000 in Metropolitan Manila, exclusive of interest and costs • EXCEPT: probate proceedings [Sec. 1, as amended by A.M. 02-11-09-SC] Criminal cases 1. Traffic laws, rules, and regulations violations 2. Rental law violations 3. Municipal or city ordinance violations 4. All other criminal cases where penalty prescribed by law for offense charged is imprisonment not exceeding 6 months and/or a fine not exceeding P1,000 a. Irrespective of other imposable penalties, accessory or otherwise, or of civil liability arising therefrom b. In offenses involving damage to property through criminal negligence, this rule shall govern where imposable fine does not exceed P10,000. [Sec. 1] Where rule shall not apply 1. To a civil case where plaintiff’s cause of action is pleaded in the same complaint

Page 230 of 525

U.P. LAW BOC

CIVIL PROCEDURE

with another cause of action subject to ordinary procedure. 2. To a criminal case where offense charged is necessarily related to another criminal case subject to ordinary procedure. [Sec. 1] Determination of applicability Upon filing, the court shall issue an order declaring whether or not the case shall be governed by this rule. Note: A patently erroneous determination is a ground for disciplinary action. [Sec. 2]

2. EFFECT OF ANSWER

FAILURE

TO

Answer The defendant shall file his answer within 10 days from service of summons. 1. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. 2. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. 3. The answer to counterclaims or crossclaims shall be filed and served within 10 days from service of the answer in which they are pleaded. [Sec. 5]

REMEDIAL LAW

3. PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES Action of the court after filing of the complaint a. Outright dismissal • After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. b. Issue summons • If no ground for dismissal is found the court shall issue summons which shall state that the summary procedure under this Rule shall apply. [Sec. 4]

Effect of failure to answer Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. Note: The court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. [Sec. 6]

Preliminary conference 1. Held not later than 30 days after the last answer is filed, 2. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. 3. The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. 4. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6 5. All cross-claims shall be dismissed. 6. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. [Sec. 7]

This is without prejudice to the applicability of now-Sec. 3(c), Rule 9 of ROC, if there are two or more defendants. [Sec. 6]

Record of preliminary conference The court shall issue an order stating the matters taken up in the preliminary conference,

Page 231 of 525

U.P. LAW BOC

CIVIL PROCEDURE

within 5 days after the termination of the preliminary conference. [Sec. 8] Submission of affidavits and position papers Within 10 days from the receipt of the record of preliminary conference, the parties shall submit: 1. Affidavits of their witnesses, 2. Other evidence on the factual issues defined in the order, and 3. Their position papers setting forth the law and the facts relied upon by them. [Sec. 9] Affidavits The affidavits shall state only facts of direct and personal knowledge of the affiants which are admissible in evidence, if not, such affidavit or portion thereof shall be expunged from the record. Note: Violation of this rule may subject the party or counsel who submitted the defective affidavit is subject to disciplinary action. [Sec. 20]

4. PROHIBITED AND MOTIONS

PLEADINGS

Pleadings The only pleadings allowed to be filed are: 1. Complaint 2. Compulsory counterclaim, pleaded in the answer 3. Cross-claim, pleaded in the answer 4. Answer to these pleadings Note: All pleadings shall be verified. [Sec. 3] Prohibited pleadings, motions, petitions 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with referral to Lupon for conciliation when required 2. Motion for a bill of particulars 3. Motion for new trial, or for reconsideration of a judgment, or for opening of trial 4. Petition for relief from judgment

REMEDIAL LAW

5. Motion for extension of time to file pleadings, affidavits or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints 12. Interventions [Sec. 19]

5. APPEAL Rendition of judgment Within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. [Sec. 30] Clarificatory procedure Should the court find it necessary to clarify certain material facts, it may within the same 30 days to render judgment, issue an order: a. Specifying the matters to be clarified, b. Requiring the parties to submit affidavits or other evidence on the matters within 10 days from receipt of the order In such case, judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. In a civil case governed by the Rules on Summary Procedure, no hearing is conducted. Instead, the parties are required to submit their respective position papers. [Five Star Marketing Corporation v. Booc, G.R. 143331 (2007)] Appeals 1. The judgment or final order of the MTC shall be appealable to the appropriate RTC. 2. The decision of the RTC in civil cases governed by the Rule on Summary Procedure shall be immediately executory without prejudice to further appeal. [Sec. 21].

Page 232 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: When the case is already in the Regional Trial Court, the Rule on Summary Procedure no longer applies. It applies only in cases filed before the MTCs. [Jakihaca v. Aquino, G.R. No. 83982 (1990)]

J.

REMEDIAL LAW

Amended Rules. However, it is an allowable affirmative defense that must be alleged in the answer or else it will be deemed waived. Hence, the court may not dismiss a case motu proprio for failing to comply with the requirement of a barangay conciliation.

1. Cases Covered

KATARUNGANG PAMBARANGAY

[Revised Katarungang Pambarangay Law, Secs. 399-422, R.A. 7160] The primordial aim of the Katarungang Pambarangay Law is to reduce the number of court litigations and prevent deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. [Zamora vs Heirs of Izquierdo, G.R. No. 146195 (2004)] Nature of proceedings The proceedings before the Lupong Tagamayapa or the Pangkat ng Tagapagkasundo of the barangay are not judicial proceedings. They do not have adjudicatory powers. They resolve disputes or attempt to do so through amicable settlement, conciliation, and arbitration. [1 Riano 659, 2016 Edition] Importance Where the case is covered by the Katarungang Pambarangay Law, the compulsory process of arbitration is required and is a precondition to the filing of the complaint in the court. The complaint should be dismissed where the complaint: a. Did not state that it is one of the excepted cases, b. Did not allege prior availment of the conciliation process, or c. Did not have a certification that no conciliation or settlement had been reached by the parties. [Agbayani v. CA, G.R. No. 183623 (2012)] Note: Failure to comply with a condition precedent is no longer a ground for an allowable motion to dismiss under the

The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes. [Sec. 408, LGC)

2. Subject Matter For Amicable Settlement All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices. [Administrative Circular 14-93]

3. Venue Rules on venue Dispute Venue Disputes between Shall be brought persons actually before the lupon of residing in the same said barangay barangay Shall be brought in the barangay where Disputes involving the respondent or actual residents of any of the different barangays respondents actually within the same city resides, at the or municipality election of the complainant Shall be brought in Disputes involving the barangay where real property or any the real property or interest therein the larger portion thereof is situated.

Page 233 of 525

U.P. LAW BOC

Disputes arising from the workplace where the contending parties are employed or at the institution where such parties are enrolled for study [Sec. 409, LGC]

CIVIL PROCEDURE

Shall be brought in the barangay where such workplace or institution is located.

Objections Objections to venue shall be raised in the mediation proceedings before the punong barangay. Otherwise, the same shall be deemed waived. [Sec. 409, LGC]

4. When Parties May Directly Go To Court Barangay conciliation is not necessary before filing a complaint: 1. Where one party is the government, or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee and the dispute relates to the performance of his official functions; 3. Where the dispute involves real properties located in different cities and municipalities; - unless the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon 4. Any complaint by or against corporations, partnerships, or juridical entities; 5. Disputes involving parties who actually reside in barangays of different cities or municipalities; - Except where such barangay units adjoin each other and the parties agree to submit to amicable settlement by an appropriate Lupon 6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding 1 year or a fine of over P5,000; 7. Offenses where there is no private offended party; 8. Disputes where urgent legal action is necessary to prevent injustice from being

REMEDIAL LAW

committed or further continued, specifically the following: a. Criminal cases where the accused is under police custody or detention b. Petition for habeas corpus c. Actions coupled with provisional remedies d. Actions which may be barred by the statute of limitations 9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 10. Where the dispute arises from the Comprehensive Agrarian Reform Law; 11. Labor disputes or controversies arising from employer-employee relations; 12. Actions to annul judgment upon a compromise which may be filed directly in the court. [Administrative Circular 14-93]

5. Execution Form of settlement All amicable settlements shall: a. Be in writing, b. In a language or dialect known to the parties, c. Signed by the parties, d. Attested to by the lupon chairman or the pangkat chairman [Sec. 411, LGC] Effect of settlement The amicable settlement and arbitration award shall have the effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation has been made or a petition to nullify the award has been filed before the proper court. [Sec. 416, LGC] Execution Within 6 months from the date of the settlement - execution by the lupon. After the lapse of 6 months - execution by action in the appropriate city or municipal court.

Page 234 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

parties may enter into compromise at any stage of the proceedings. [Sec. 28]

6. Repudiation Repudiation of the settlement Any party to the dispute may within 10 days from the date of the settlement, repudiate the same by: a. Filing with the lupon chairman a statement of repudiation, b. Sworn before him, and c. Claiming that his consent was vitiated by fraud, violence, or intimidation. Note: Such repudiation shall be a sufficient basis for the issuance of the certification for filing a complaint. [Sec. 418, LGC] Effect of failure to repudiate Failure to repudiate within the 10-day period shall be deemed a waiver of the right to challenge the settlement on the grounds of vitiated consent by fraud, violence, or intimidation. [Sec. 14, Rule VI, Katarungang Pambarangay Rules] Upon expiration of the 10-day period, the settlement attains the status of finality and it becomes the ministerial duty of the court to implement and enforce it. [Quiros vs Arjona, G.R. No. 158901 (2004)]

K. RULES OF PROCEDURE FOR SMALL CLAIMS CASES [AM No. 08-8-7-SC, effective February 2016] Purpose The purpose of the small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts. [1 Riano 646, 2016 Edition] Parties are encouraged to file small claims court actions to resolve their minor disputes as opposed to resorting to self-help or forcible means to seek their remedy. [Explanatory note to A.M. 08-8-7-SC] Note: The rules of civil procedure shall apply suppletorily. [Sec. 27] The rules on mediation/JDR shall not apply inasmuch as the

1. Scope And Applicability Of The Rule Scope This rule shall govern the procedure in actions for payment of money where the value of the claim does not exceed PHP 400,000 in cases filed before the MeTC, and P300,000 in cases filed before the MCTC, MTCS, and MTCC, exclusive of interest and costs. [SC Resolution, February 26, 2019] Note: The Plaintiff may join one or more separate small claims against a defendant provided that the amount still falls within the jurisdictional amount of the rules. [Sec. 8] Applicability This Rule is applicable in all actions which are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money a. For money owed under any of the following: i. Contract of Lease ii. Contract of Loan iii. Contract of Services iv. Contract of Sale; v. Contract of Mortgage b. For liquidated damages arising from contracts c. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417, LGC. [Sec. 5] Counterclaims within the Coverage of Small Claims Compulsory The defendant shall file a counterclaim in his Response if he possesses a claim against the plaintiff that: 1. Is within the coverage of this Rule, exclusive of interest and costs;

Page 235 of 525

U.P. LAW BOC

CIVIL PROCEDURE

2. Arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; 3. Does not require for its adjudication the joinder of third parties; and 4. Is not the subject of another pending action,

Note: Failure to do so will bar the defendant from suing on the counterclaim. [Sec. 15] Permissive The defendant may also elect to file a counterclaim if: a. It is a claim that does not arise from the same transaction or occurrence, b. The amount and nature is within the coverage of the Rule, and c. The prescribed docket fees and other legal fees are paid. [Sec. 15]

REMEDIAL LAW

Note: No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim unless good cause is shown for admission of additional evidence. [Sec. 6] Affidavits The affidavits submitted shall state only: a. Facts of direct personal knowledge of the affiants, and b. Based on authentic records which are admissible in evidence. Effect of violation: a. The party and counsel who submitted such shall be subject to disciplinary action. b. The inadmissible affidavit or portion of which shall be expunged from the record. Note: Non-submission of affidavits shall cause the immediate dismissal of the claim or counterclaim. [Sec. 9]

2. Commencement Of Small Claims Action; Response

Venue General Rule: The regular rules on venue apply

How commenced By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate. [Sec. 6] - Stating if he/she/it is engaged in the business of lending, banking and similar activities, and the number of small claims cases filed within the calendar year regardless of judicial station. [Sec. 6] Note: Misrepresentation as to not being engaged in such business shall cause the statement of claim to be dismissed with prejudice and for the plaintiff to be meted the appropriate sanctions such as direct contempt. [Sec. 11]

Exception: Plaintiffs engaged in the business of lending, banking, and similar activities who have a branch within the municipality/city where the defendant resides must file in such municipality/city. [Sec. 7]

Attachments to the Statement of Claim 1. Certification of Non-forum Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits, 2. Two (2) duly certified photocopies of the actionable document/s subject of the claim, and 3. Affidavits of witnesses and other evidence to support the claim

Payment of filing fees The plaintiff shall pay the docket and other legal fees prescribed under Rule 141, unless allowed to litigate as an indigent Note: Exemption from the payment of filing fees shall be granted only by the SC. If more than 5 small claims are filed by one party within the calendar year, regardless of the judicial station, an additional filing fee of PHP 500 shall be paid for every claim filed after the 5th claim, and an additional 100.00 or a total of 600.00 for every claim filed after the tenth 10th claim, and another 100.00 or a total of 700 for every claim filed after the 15th claim, progressively and cumulatively. If the plaintiff is engaged in the business of banking, lending and similar activities, the

Page 236 of 525

U.P. LAW BOC

CIVIL PROCEDURE

amount of filing and other legal fees shall be the same as those applicable to cases filed under the regular rules. A claim filed with a motion to sue as indigent shall be referred to the Executive Judge for immediate action in case of multisala courts. 1. If the motion is granted by the Executive Judge, the case shall be raffled off or assigned to the court designated to hear small claims cases. 2. If the motion is denied, the plaintiff shall be given 5 days within which to pay the docket fees, otherwise, the case shall be dismissed without prejudice. Note: In no case shall a party, even if declared an indigent, be exempt from the payment of the P1,000.00 fee for service of summons and processes. [Sec. 10] Court action on statement of claim If no ground for dismissal is found, the court shall: a. Issue summons directing the defendant to submit a verified response. - Accompanied by a copy of the statement of claims, documents submitted by plaintiff, and a blank response form. b. Issue a notice of hearing to both parties. - Containing the date of hearing, and the express prohibition against filing of a motion to dismiss. - Note: No unjustified postponement shall be allowed. [Sec. 12] Summons If it is returned without being served, the court shall order the plaintiff to cause service of summons and to inform the court if service was made within 30 days. Otherwise, the statement of claims shall be dismissed without prejudice as to those not served. [Sec. 12] Response The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non - extendible period of 10 days from receipt of summons. [Sec. 13]

REMEDIAL LAW

Attachments to response 1. Certified photocopies of documents 2. Affidavits of witnesses 3. Evidence in support Note: No evidence shall be allowed during hearing which was not attached or submitted together with the Response, unless good cause is shown for the admission of additional evidence. [Sec. 13] Effect of failure to file response a. If the defendant also fails to appear on the date set for hearing – the court by itself shall render judgment as may be warranted by the facts alleged in the Statement of claim. b. If the defendant appears on the date set for hearing – the court shall ascertain what defense he/she/it has to offer which shall constitute his/her/its Response, and proceed to hear or adjudicate the case on the same day as if a Response has been filed. [Sec. 14] Dismissal When the case falls under the rules 1. From the examination of the Statement of Claims and the evidence attached, the court may dismiss the case outright on any of the grounds for the dismissal of the case and state if such dismissal is with or without prejudice. 2. If, during the hearing, the court is able to determine that there exists a ground for dismissal, the court may dismiss the case even if the ground is not pleaded in the Response. Note: If a case is filed under the regular or summary procedure, but actually falls under this Rule, the case shall be referred to the Executive Judge for appropriate assignment. [Sec. 11] When the case does not fall under the rules If the case falls under summary or regular procedure, the case shall not be dismissed. Instead, the case shall be: 1. Re-docketed under the appropriate procedure, and 2. Returned to the court where it was assigned, subject to payment of any

Page 237 of 525

U.P. LAW BOC

CIVIL PROCEDURE

deficiency in the applicable regular rate of filing fees. [Sec. 11]

3. Prohibited Motions

Pleadings

And

The following pleadings, motions, or petitions shall not be allowed in small claims cases: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits, or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply and Rejoinder; 11. Third-party complaints; and 12. Interventions [Sec. 16]

4. Appearances General Rule: The parties shall personally appear on the designated date of hearing. [Sec. 18] Exceptions: a. Appearance through a representative must be for a valid cause. [Sec. 18] b. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may allow another individual who is not an attorney to assist the party upon his consent. [Sec. 19] Representative a. Must not be a lawyer, Note: Juridical entities shall not be represented by a lawyer in any capacity. b. Must be related to or next-of-kin of the individual-party, and

REMEDIAL LAW

c. Authorized under a Special Power of Attorney - to enter into an amicable settlement of the dispute and to enter into stipulations or admissions of facts and of documentary exhibits. [Sec. 18] Note: An attorney may only appear in a small claims case when the attorney himself is the plaintiff/defendant. [Sec. 19] Failure to appear 1. If plaintiff fails to appear – it shall be a cause for dismissal without prejudice. The defendant present shall be entitled to judgment on permissive counterclaim. 2. If defendant fails to appear – same effect as failure to file Response. 3. If both plaintiff and defendant fail to appear – dismissal with prejudice of both the Statement of Claim and the Counterclaim. [Sec. 20]

5. Hearing; Duty Of The Judge When conducted The hearing shall be set not more than 30 days from the filing of the statement of claims. [Sec. 12] Postponement of hearing A request for postponement of hearing may be granted only upon proof of the physical inability of the party. Note: A party may only avail of 1 postponement [Sec. 21] Duty of the court At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases. [Sec. 22] Hearing 1. At the hearing, the judge shall first exert efforts to bring the parties to an amicable settlement of their dispute. 2. If the attempt at an amicable settlement fails, the hearing shall so proceed in an

Page 238 of 525

U.P. LAW BOC

CIVIL PROCEDURE

informal and expeditious manner and shall be terminated within the same day. [Sec. 23] Any settlement or resolution of the dispute shall be: 1. Reduced into writing; 2. Signed by the parties; and, 3. Submitted to the court for approval [Sec. 23]

6. FINALITY OF JUDGMENT Decision 1. After the hearing, the court shall render its decision within 24 hours from termination of the hearing, based on the facts established by the evidence. 2. The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties. 3. The decision shall be final, executory, and unappealable [Sec. 24]

REMEDIAL LAW

L. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES [A.M. No. 09-6-8-SC]

1. Scope And Applicability Of The Rule These Rules shall govern the procedure in 1. Civil, 2. Criminal and 3. Special civil actions Before 1. Regional Trial Courts, 2. Metropolitan Trial Courts 3. Municipal Trial Courts in Cities 4. Municipal Trial Courts and 5. Municipal Circuit Trial Courts Involving enforcement or violations of environmental and other related laws, rules and regulations.

2. Civil Procedure Execution Execution shall issue upon motion of the winning party. Considering that small claims cases are exclusively within the jurisdiction of the MTC, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts, certiorari petitions assailing its dispositions should be filed before their corresponding Regional Trial Courts. [A.L. Ang Network v. Mondejar, G.R. No. 200804 (2014)]

Who May File Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law. [Sec. 4, Rule 2] Form The verified complaint shall contain: a. The names of the parties, b. Their addresses, c. The cause of action, d. The reliefs prayed for, e. Shall state that it is an environmental case and the law involved, and f. Include a certification against forum shopping Note: If the complaint is not an environmental complaint, the judge shall refer it to the executive judge for re-raffle. [Sec. 3, Rule 2]

Page 239 of 525

U.P. LAW BOC

CIVIL PROCEDURE

The plaintiff shall attach all the evidence proving or supporting the cause of action consisting of affidavits of witnesses, documentary evidence, and if possible, object evidence. - The affidavits shall be in question and answer form and shall comply with the rules of admissibility of evidence. [Sec. 3, Rule 2] Service of the complaint on the government Upon filing of the complaint, the plaintiff is required to furnish the government or the appropriate agency, although not a party, a copy of the complaint. Note: Proof of service shall be attached to the complaint. [Sec. 6, Rule 2] Citizen Suit 1. Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. 2. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within 15 days from notice thereof. 3. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. Note: Citizen suits filed under R.A. 8749 (Clean Air Act) and R.A. 9003 (Ecological Solid Waste Management Act) shall be governed by their respective provisions. [Sec. 5, Rule 2] Declaration of Default Motu Proprio Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for [Sec. 15, Rule 2]

REMEDIAL LAW

Procedure Filing of verified Complaint accompanied by 1. affidavits of witnesses, documentary evidence, and if possible, object evidence, and 2. certification against forum shopping [Sec. 3, Rule 2] ↓ Referral/Assignment by raffle to branch of court ↓ Issuance of Temporary Environmental Protection Order (TEPO), when proper, effective for 72 hours from receipt and, during the same period, conduct of a summary hearing for the extension of the effectivity of the TEPO [Sec. 8, Rule 2] ↓ Service of Summons [Sec. 13, Rule 2] ↓ Filing of verified Answer within 15 days from receipt of summons [Sec. 14, Rule 2] ↓ Issuance of Notice of Pre-trial within 2 days from filing of Answer [Sec. 1, Rule 3] ↓ Submission of Pre-Trial Briefs 3 days before pre-trial [Sec. 2, Rule 3] ↓ Referral to Mediation, Mediation and Mediation Report [Sec. 3, Rule 3] ↓ Preliminary Conference [Sec. 4, Rule 3] ↓ Pre-trial Conference/s [Sec. 5, Rule 3] ↓ Pre-trial Order [Sec. 9, Rule 3] ↓ Continuous Trial [Sec. 1, Rule 4] ↓ Judgment and Execution [Rule 5] Period to Try and Decide 1. The court shall have a period of 1 year from the filing of the complaint to try and decide the case. 2. Before the expiration of the 1-year period, the court may petition the SC for the extension of the period for justifiable cause.

Page 240 of 525

U.P. LAW BOC

CIVIL PROCEDURE

3. The court shall prioritize the adjudication of environmental cases. [Sec. 5, Rule 4]

a. Prohibition Against Temporary Restraining Order and Preliminary Injunction Rules Except the SC, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. [Sec. 10, Rule 2] Report on TEPO, EPO, TRO, or preliminary injunction The judge shall report any action taken on a TEPO, EPO, TRO, or preliminary injunction, including its modification and dissolution, to the SC through the OCA within 10 days from the day the action is taken. [Sec. 11, Rule 2]

b. Pre-trial Conference; Consent Decree Pre-trial conference 1. The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. 2. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. - The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology Note: Evidence not presented during the pretrial, except newly-discovered evidence, shall be deemed waived. [Sec. 5, Rule 3] Consent decree - A judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. [Sec. 4(b), Rule 1]

c. Prohibited Motions

REMEDIAL LAW

Pleadings

and

The following pleadings or motions shall not be allowed: 1. Motion to dismiss the complaint; 2. Motion for a bill of particulars; 3. Motion for extension of time to file pleadings, except to file answer, the extension not to exceed 15 days; 4. Motion to declare the defendant in default; 5. Reply and rejoinder; and 6. Third party complaint [Sec. 2, Rule 2]

d. Temporary Environmental Protection Order Ground for Issuance If it appears from the verified complaint with a prayer for the issuance of an EPO that a. The matter is of extreme urgency and b. The applicant will suffer grave injustice and irreparable injury. [Sec. 8, Rule 2] Note: The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. [Sec. 8, Rule 2] Period of Effectivity 72 hours from date of the receipt of the TEPO by the party or person enjoined. [Sec. 8, Rule 2] Duty of Court 1. Within the 72-hour period, the court shall conduct a summary hearing to determine whether the TEPO may be extended until the determination of the case. [Sec. 8, Rule 2] 2. The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant [Sec. 8, Rule 2] Ground to dissolve TEPO The TEPO may be dissolved if it appears after hearing that its issuance or continuance would

Page 241 of 525

U.P. LAW BOC

CIVIL PROCEDURE

cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. Note: The grounds for a motion to dissolve a TEPO shall be supported by affidavits of the party or the person enjoined which the applicant may oppose, also by affidavits. [Sec. 9, Rule 2]

e. Judgment and Execution; Reliefs in a Citizen’s Suit Judgment not stayed by appeal Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court. [Sec. 2, Rule 5] Reliefs in a citizen suit a. If warranted, the court may grant to the plaintiff proper reliefs which shall include— 1. The protection, preservation or rehabilitation of the environment and 2. The payment of attorney’s fees, costs of suit, and other litigation expenses. b. The court may also require the violator 1. To submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator or 2. To contribute to a special trust fund for that purpose subject to the control of the court. [Sec. 1, Rule 5] No damages can be awarded in a citizen suit This measure is in line with the policy that a citizen suit is filed in the public interest, and in effect, it is the environment which is vindicated in the action. The only recourse of a party or person who wishes to recover damages for injury suffered is to file a separate action under Sec. 4, Rule 2. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

REMEDIAL LAW

f. Permanent Environmental Protection Order; Writ of Continuing Mandamus Court action In the judgment, the court may— a. Convert the TEPO to a permanent EPO, or b. Issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. [Sec. 3, Rule 5] Definition Environmental protection order - An order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve, or rehabilitate the environment. [Sec. 3(d), Rule 1] Writ of continuing mandamus - A writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. [Sec. 3(c), Rule 1] Execution The court may, by itself or through the appropriate government agency: a. Monitor the execution of the judgment, and b. Require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary. - The reports shall detail the progress of the execution and satisfaction of the judgment. - The other party may, at its option, submit its comments or observations on the execution of the judgment. [Sec. 3, Rule 5] Return of writ of execution The process of execution shall terminate upon a sufficient showing that the decision or order has been implemented to the satisfaction of the court in accordance with Sec. 14, Rule 39 of the ROC.

Page 242 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

[Sec. 2, Rule 6]

g. Strategic Lawsuit Public Participation

Against

Definition SLAPP refers to a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. [Sec. 1, Rule 6] Applicability The SLAPP provisions apply not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved person from bringing a valid environmental complaint before the court. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee] Illustrations: a. X files a complaint in an environmental case against A [violator of environmental laws] and the A retaliates by filing a complaint for damages against X; b. X is a witness in a pending environmental case against A and A retaliates by filing a complaint for damages or libel against X; or c. X is an environmental advocate who rallies for the protection of environmental rights and a complaint for damages is filed against him by A [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee] SLAPP as a defense In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of environment, or assertion of environmental rights, the defendant may: a. File an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers, and other evidence, and b. By way of counterclaim, pray for damages, attorney’s fees, and costs of suit.

The court shall direct the plaintiff or adverse party within 15 days from filing the comment or lapse of period to: a. File an opposition showing that the suit is not a SLAPP, b. Attaching evidence in support thereof. [Sec. 2, Rule 6] The defense shall be set for hearing by the court after issuance of an order to file an opposition within 15 days from filing of the comment of lapse of the period. [Sec. 2, Rule 6] - Hearing shall be summary in nature, - Parties must submit all available evidence in support of their respective positions. [Sec. 3, Rule 6] Quantum of Evidence a. Party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment b. Party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim [Sec. 3, Rule 6] Resolution of the Defense of a SLAPP a. If action is dismissed, dismissal is with prejudice b. If defense of SLAPP is rejected, action will proceed and evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case. [Sec. 4, Rule 6]

Page 243 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

i.

3. Special Proceedings a. Writ of Kalikasan When available It is a remedy available: a. To a natural or juridical person, entity authorized by law, people’s organization, NGO, or any public interest group accredited by or registered with any government agency, b. On behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation, c. By an unlawful act or omission of a public official or employee, or private individual or entity, d. Involving environmental damage to such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces. [Sec. 1, Rule 7] Note: The filing of the petition shall not preclude the filing or separate civil, criminal, or administrative actions. [Sec. 17, Rule 7] Where to file The petition shall be filed with the SC or any of the stations of the CA. [Sec. 3, Rule 7] Form The verified petition shall contain the following: a. The personal circumstances of the petitioner; b. The name and personal circumstances of the respondent or if unknown/uncertain, an assumed appellation of the respondent; c. The environmental law, rule, or regulation violated or threatened to be violated; d. The act or omission complained of; e. The environmental damage of such magnitude as to prejudice the life, health, or property of the inhabitants in 2 or more cities or provinces; f. All relevant and material evidence; - Affidavits, documentary evidence, scientific/expert studies, object evidence g. Certification of the petitioner under oath that:

Petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency, and no such action is pending; ii. If there is an action pending, the complete statement of its present status; iii. If the petitioner shall learn that there is a pending action, he shall report such to the court within 5 days. h. Reliefs prayed for which may include a TEPO. [Sec. 2, Rule 7] Exemption from docket fees The petitioner shall be exempt from the payment of docket fees. [Sec. 4, Rule 7] Procedure Filing of verified Petition with Certificate Against Forum Shopping [Sec. 2, Rule 7] ↓ Issuance of Writ of Kalikasan within 3 days from filing of petition [Sec. 5, Rule 7] ↓ Service of the Writ [Sec. 6, Rule 7] ↓ Filing of a verified Return within a nonextendible period of 10 days after service of the writ [Sec. 7, Rule 7] ↓ Hearing (court may call for preliminary conference) [Sec. 11, Rule 7] ↓ Judgment [Sec. 15, Rule 7] Issuance If the petition is sufficient in form and substance, the writ shall be issued within 3 days from the date of filing. - The respondent shall be required to file a verified return. - The order shall include the issuance of a cease and desist order and other temporary reliefs effective until further order. [Sec. 5, Rule 7]

Page 244 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Judgment Judgment shall be rendered granting or denying the writ of kalikasan within 60 days from the time the petition is submitted for decision. Reliefs that may be granted under the writ: a. Directing the respondent to permanently cease and desist from committing acts/neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; b. Directing the respondent to protect, preserve, rehabilitate, or restore the environment; c. Directing the respondent to monitor strict compliance with the decisions and orders of the court; d. Directing the respondent to make periodic reports on the execution of the final judgment; and e. Such other reliefs which relate to the right of the people to a balance and healthful ecology or to the protection, preservation, rehabilitation, or restoration of the environment. Note: An award of damages to individual petitioners is not allowed as a relief. [Sec. 15, Rule 7] Appeal Any party may appeal to the SC under Rule 45 of the ROC within 15 days from notice of the adverse judgment or denial of MR. Note: The appeal may raise questions of fact. [Sec. 16 Rule 7]

b. Prohibited Motions

Pleadings

and

The following pleadings and motions are prohibited: 1. Motion to dismiss; 2. Motion for extension of time to file return; 3. Motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; and 8. Motion to declare respondent in default.

REMEDIAL LAW

[Sec. 9, Rule 7]

c. Discovery Measures A party may file a verified motion for the following reliefs: a. Ocular Inspection b. Production or inspection of documents and things The motion must show that the order granting either relief is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. [Sec. 12, Rule 7] OCULAR INSPECTION Purpose To order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. [Sec. 12, Rule 7] Requirements The motion must: a. Show that an ocular inspection order is necessary to establish the magnitude of the violation/threat; b. State in detail the place/places to be inspected; c. Be supported by affidavits of witnesses who have personal knowledge of the violation/threatened violation. The motion shall be set for hearing. [Sec. 12, Rule 7] Order The order shall specify: a. The person/s authorized to make the inspection, and b. The date, time, place, and manner of making the inspection, and c. May prescribe other conditions to protect the constitutional rights of all parties. [Sec. 12, Rule 7]

Page 245 of 525

U.P. LAW BOC

CIVIL PROCEDURE

PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS Purpose To order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. [Sec. 12, Rule 7] Requirements The motion must show that the production order is necessary to establish the magnitude of the violation or threat. The motion shall be set for hearing. [Sec. 12, Rule 7] Order The order shall specify: a. The person/s authorized to make the production, and b. The date, time, place, and manner of making the inspection or production, and c. May prescribe other conditions to protect the constitutional rights of all parties. [Sec. 12, Rule 7]

d. Writ of Continuing Mandamus Definition A writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. [Sec. 3(c), Rule 1] When available When any agency or instrumentality of the government or officer: a. Unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law, rule or regulation or a right therein; or b. Unlawfully excludes another from the use or enjoyment of such right; and

REMEDIAL LAW

c. There is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 1, Rule 8] Where to file The petition shall be filed with the RTC exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the CA or SC. [Sec. 2, Rule 8] Form The person aggrieved may file a verified petition: a. Alleging the facts with certainty, b. Attach supporting evidence, c. Specifying that the petition concerns an environmental law, rule, or regulation, and d. Praying that judgment be rendered: i. Commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and ii. To pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules, or regulations. e. Accompanied by a sworn certification of non-forum shopping. [Sec. 1, Rule 8] Procedure File the verified petition [Sec. 1, Rule 8] ↓ Issuance of Writ of Continuing Mandamus and Order to Comment [Sec. 4, Rule 8] ↓ Filing of Comment within 10 days after receipt of Order [Sec. 4, Rule 8] ↓ Summary Hearing [Sec. 6, Rule 8] ↓ Judgment [Sec. 7, Rule 8] ↓ Return of the Writ [Sec. 8, Rule 8] Issuance If the petition is sufficient in form and substance, the writ shall be issued and the court shall require the respondent to comment. [Sec. 4, Rule 8]

Page 246 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The court may grant a TEPO for the preservation of the rights of the parties pending proceedings. [Sec. 5, Rule 8] Judgment If warranted, the court shall grant the privilege of the writ of continuing mandamus: a. Requiring respondent to perform an act or series of acts until the judgment is fully satisfied, b. Grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent, c. Require the respondent to submit periodic reports detailing the progress and execution of judgment. Note: The court may by itself or through the commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may also submit its comments or observations on the execution of judgment. [Sec. 7, Rule 8] Return of the writ The periodic reports submitted shall be contained in partial returns of the writ. Upon final satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. [Sec. 8, Rule 8] Distinctions Between Writ of Kalikasan and Writ of Continuing Mandamus Writ of Continuing Writ of Kalikasan Mandamus [Rule 7] [Rule 8] Subject Matter Available against an Directed against unlawful [a] the unlawful act or omission of a neglect in the public official or performance of an employee, or private act specifically individual or entity, enjoined by law in involving connection with the environmental enforcement/ damage of such violation of an magnitude as to environmental rule prejudice the life, or health or property of [b] the unlawfully inhabitants in two or exclusion of another more cities or from the use or provinces [Sec. 1] enjoyment of such

REMEDIAL LAW

right and in both instances, there is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 1] Who May File Natural and juridical persons b. Entities authorized by law c. POs, NGOs, Person personally PIG, on behalf of aggrieved by the persons whose unlawful act or right to a omission [Sec. 1] balanced and healthful ecology is violated or threatened to be violated [Sec. 1] Respondent May be public or Government or its private individual or officers [Sec. 1] entity [Sec. 1] Docket Fees Exempted [Sec. 4] Exempted [Sec. 3] Venue a. RTC exercising territorial jurisdiction, SC or CA [Sec. 2] b. CA, c. SC [Sec. 3] Discovery Measures Ocular Inspection and Production or None Inspection Order [Sec. 12] Damages Not allowed [Sec. 17] Allowed [Sec. 1] a.

4. Criminal Procedure Filing of the information An information, charging a person with a violation of an environmental law and

Page 247 of 525

U.P. LAW BOC

CIVIL PROCEDURE

The plaintiff shall attach all the evidence proving or supporting the cause of action consisting of affidavits of witnesses, documentary evidence, and if possible, object evidence. - The affidavits shall be in question and answer form and shall comply with the rules of admissibility of evidence. [Sec. 3, Rule 2] Service of the complaint on the government Upon filing of the complaint, the plaintiff is required to furnish the government or the appropriate agency, although not a party, a copy of the complaint. Note: Proof of service shall be attached to the complaint. [Sec. 6, Rule 2] Citizen Suit 1. Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. 2. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within 15 days from notice thereof. 3. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. Note: Citizen suits filed under R.A. 8749 (Clean Air Act) and R.A. 9003 (Ecological Solid Waste Management Act) shall be governed by their respective provisions. [Sec. 5, Rule 2] Declaration of Default Motu Proprio Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for [Sec. 15, Rule 2]

REMEDIAL LAW

Procedure Filing of verified Complaint accompanied by 1. affidavits of witnesses, documentary evidence, and if possible, object evidence, and 2. certification against forum shopping [Sec. 3, Rule 2] ↓ Referral/Assignment by raffle to branch of court ↓ Issuance of Temporary Environmental Protection Order (TEPO), when proper, effective for 72 hours from receipt and, during the same period, conduct of a summary hearing for the extension of the effectivity of the TEPO [Sec. 8, Rule 2] ↓ Service of Summons [Sec. 13, Rule 2] ↓ Filing of verified Answer within 15 days from receipt of summons [Sec. 14, Rule 2] ↓ Issuance of Notice of Pre-trial within 2 days from filing of Answer [Sec. 1, Rule 3] ↓ Submission of Pre-Trial Briefs 3 days before pre-trial [Sec. 2, Rule 3] ↓ Referral to Mediation, Mediation and Mediation Report [Sec. 3, Rule 3] ↓ Preliminary Conference [Sec. 4, Rule 3] ↓ Pre-trial Conference/s [Sec. 5, Rule 3] ↓ Pre-trial Order [Sec. 9, Rule 3] ↓ Continuous Trial [Sec. 1, Rule 4] ↓ Judgment and Execution [Rule 5] Period to Try and Decide 1. The court shall have a period of 1 year from the filing of the complaint to try and decide the case. 2. Before the expiration of the 1-year period, the court may petition the SC for the extension of the period for justifiable cause.

Page 240 of 525

U.P. LAW BOC

CIVIL PROCEDURE

3. The court shall prioritize the adjudication of environmental cases. [Sec. 5, Rule 4]

a. Prohibition Against Temporary Restraining Order and Preliminary Injunction Rules Except the SC, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. [Sec. 10, Rule 2] Report on TEPO, EPO, TRO, or preliminary injunction The judge shall report any action taken on a TEPO, EPO, TRO, or preliminary injunction, including its modification and dissolution, to the SC through the OCA within 10 days from the day the action is taken. [Sec. 11, Rule 2]

b. Pre-trial Conference; Consent Decree Pre-trial conference 1. The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. 2. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. - The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology Note: Evidence not presented during the pretrial, except newly-discovered evidence, shall be deemed waived. [Sec. 5, Rule 3] Consent decree - A judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. [Sec. 4(b), Rule 1]

c. Prohibited Motions

REMEDIAL LAW

Pleadings

and

The following pleadings or motions shall not be allowed: 1. Motion to dismiss the complaint; 2. Motion for a bill of particulars; 3. Motion for extension of time to file pleadings, except to file answer, the extension not to exceed 15 days; 4. Motion to declare the defendant in default; 5. Reply and rejoinder; and 6. Third party complaint [Sec. 2, Rule 2]

d. Temporary Environmental Protection Order Ground for Issuance If it appears from the verified complaint with a prayer for the issuance of an EPO that a. The matter is of extreme urgency and b. The applicant will suffer grave injustice and irreparable injury. [Sec. 8, Rule 2] Note: The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. [Sec. 8, Rule 2] Period of Effectivity 72 hours from date of the receipt of the TEPO by the party or person enjoined. [Sec. 8, Rule 2] Duty of Court 1. Within the 72-hour period, the court shall conduct a summary hearing to determine whether the TEPO may be extended until the determination of the case. [Sec. 8, Rule 2] 2. The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant [Sec. 8, Rule 2] Ground to dissolve TEPO The TEPO may be dissolved if it appears after hearing that its issuance or continuance would

Page 241 of 525

U.P. LAW BOC

CIVIL PROCEDURE

cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. Note: The grounds for a motion to dissolve a TEPO shall be supported by affidavits of the party or the person enjoined which the applicant may oppose, also by affidavits. [Sec. 9, Rule 2]

e. Judgment and Execution; Reliefs in a Citizen’s Suit Judgment not stayed by appeal Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court. [Sec. 2, Rule 5] Reliefs in a citizen suit a. If warranted, the court may grant to the plaintiff proper reliefs which shall include— 1. The protection, preservation or rehabilitation of the environment and 2. The payment of attorney’s fees, costs of suit, and other litigation expenses. b. The court may also require the violator 1. To submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator or 2. To contribute to a special trust fund for that purpose subject to the control of the court. [Sec. 1, Rule 5] No damages can be awarded in a citizen suit This measure is in line with the policy that a citizen suit is filed in the public interest, and in effect, it is the environment which is vindicated in the action. The only recourse of a party or person who wishes to recover damages for injury suffered is to file a separate action under Sec. 4, Rule 2. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

REMEDIAL LAW

f. Permanent Environmental Protection Order; Writ of Continuing Mandamus Court action In the judgment, the court may— a. Convert the TEPO to a permanent EPO, or b. Issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. [Sec. 3, Rule 5] Definition Environmental protection order - An order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve, or rehabilitate the environment. [Sec. 3(d), Rule 1] Writ of continuing mandamus - A writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. [Sec. 3(c), Rule 1] Execution The court may, by itself or through the appropriate government agency: a. Monitor the execution of the judgment, and b. Require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary. - The reports shall detail the progress of the execution and satisfaction of the judgment. - The other party may, at its option, submit its comments or observations on the execution of the judgment. [Sec. 3, Rule 5] Return of writ of execution The process of execution shall terminate upon a sufficient showing that the decision or order has been implemented to the satisfaction of the court in accordance with Sec. 14, Rule 39 of the ROC.

Page 242 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

[Sec. 2, Rule 6]

g. Strategic Lawsuit Public Participation

Against

Definition SLAPP refers to a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. [Sec. 1, Rule 6] Applicability The SLAPP provisions apply not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved person from bringing a valid environmental complaint before the court. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee] Illustrations: a. X files a complaint in an environmental case against A [violator of environmental laws] and the A retaliates by filing a complaint for damages against X; b. X is a witness in a pending environmental case against A and A retaliates by filing a complaint for damages or libel against X; or c. X is an environmental advocate who rallies for the protection of environmental rights and a complaint for damages is filed against him by A [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee] SLAPP as a defense In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of environment, or assertion of environmental rights, the defendant may: a. File an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers, and other evidence, and b. By way of counterclaim, pray for damages, attorney’s fees, and costs of suit.

The court shall direct the plaintiff or adverse party within 15 days from filing the comment or lapse of period to: a. File an opposition showing that the suit is not a SLAPP, b. Attaching evidence in support thereof. [Sec. 2, Rule 6] The defense shall be set for hearing by the court after issuance of an order to file an opposition within 15 days from filing of the comment of lapse of the period. [Sec. 2, Rule 6] - Hearing shall be summary in nature, - Parties must submit all available evidence in support of their respective positions. [Sec. 3, Rule 6] Quantum of Evidence a. Party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment b. Party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim [Sec. 3, Rule 6] Resolution of the Defense of a SLAPP a. If action is dismissed, dismissal is with prejudice b. If defense of SLAPP is rejected, action will proceed and evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case. [Sec. 4, Rule 6]

Page 243 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

i.

3. Special Proceedings a. Writ of Kalikasan When available It is a remedy available: a. To a natural or juridical person, entity authorized by law, people’s organization, NGO, or any public interest group accredited by or registered with any government agency, b. On behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation, c. By an unlawful act or omission of a public official or employee, or private individual or entity, d. Involving environmental damage to such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces. [Sec. 1, Rule 7] Note: The filing of the petition shall not preclude the filing or separate civil, criminal, or administrative actions. [Sec. 17, Rule 7] Where to file The petition shall be filed with the SC or any of the stations of the CA. [Sec. 3, Rule 7] Form The verified petition shall contain the following: a. The personal circumstances of the petitioner; b. The name and personal circumstances of the respondent or if unknown/uncertain, an assumed appellation of the respondent; c. The environmental law, rule, or regulation violated or threatened to be violated; d. The act or omission complained of; e. The environmental damage of such magnitude as to prejudice the life, health, or property of the inhabitants in 2 or more cities or provinces; f. All relevant and material evidence; - Affidavits, documentary evidence, scientific/expert studies, object evidence g. Certification of the petitioner under oath that:

Petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency, and no such action is pending; ii. If there is an action pending, the complete statement of its present status; iii. If the petitioner shall learn that there is a pending action, he shall report such to the court within 5 days. h. Reliefs prayed for which may include a TEPO. [Sec. 2, Rule 7] Exemption from docket fees The petitioner shall be exempt from the payment of docket fees. [Sec. 4, Rule 7] Procedure Filing of verified Petition with Certificate Against Forum Shopping [Sec. 2, Rule 7] ↓ Issuance of Writ of Kalikasan within 3 days from filing of petition [Sec. 5, Rule 7] ↓ Service of the Writ [Sec. 6, Rule 7] ↓ Filing of a verified Return within a nonextendible period of 10 days after service of the writ [Sec. 7, Rule 7] ↓ Hearing (court may call for preliminary conference) [Sec. 11, Rule 7] ↓ Judgment [Sec. 15, Rule 7] Issuance If the petition is sufficient in form and substance, the writ shall be issued within 3 days from the date of filing. - The respondent shall be required to file a verified return. - The order shall include the issuance of a cease and desist order and other temporary reliefs effective until further order. [Sec. 5, Rule 7]

Page 244 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Judgment Judgment shall be rendered granting or denying the writ of kalikasan within 60 days from the time the petition is submitted for decision. Reliefs that may be granted under the writ: a. Directing the respondent to permanently cease and desist from committing acts/neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; b. Directing the respondent to protect, preserve, rehabilitate, or restore the environment; c. Directing the respondent to monitor strict compliance with the decisions and orders of the court; d. Directing the respondent to make periodic reports on the execution of the final judgment; and e. Such other reliefs which relate to the right of the people to a balance and healthful ecology or to the protection, preservation, rehabilitation, or restoration of the environment. Note: An award of damages to individual petitioners is not allowed as a relief. [Sec. 15, Rule 7] Appeal Any party may appeal to the SC under Rule 45 of the ROC within 15 days from notice of the adverse judgment or denial of MR. Note: The appeal may raise questions of fact. [Sec. 16 Rule 7]

b. Prohibited Motions

Pleadings

and

The following pleadings and motions are prohibited: 1. Motion to dismiss; 2. Motion for extension of time to file return; 3. Motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; and 8. Motion to declare respondent in default.

REMEDIAL LAW

[Sec. 9, Rule 7]

c. Discovery Measures A party may file a verified motion for the following reliefs: a. Ocular Inspection b. Production or inspection of documents and things The motion must show that the order granting either relief is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. [Sec. 12, Rule 7] OCULAR INSPECTION Purpose To order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. [Sec. 12, Rule 7] Requirements The motion must: a. Show that an ocular inspection order is necessary to establish the magnitude of the violation/threat; b. State in detail the place/places to be inspected; c. Be supported by affidavits of witnesses who have personal knowledge of the violation/threatened violation. The motion shall be set for hearing. [Sec. 12, Rule 7] Order The order shall specify: a. The person/s authorized to make the inspection, and b. The date, time, place, and manner of making the inspection, and c. May prescribe other conditions to protect the constitutional rights of all parties. [Sec. 12, Rule 7]

Page 245 of 525

U.P. LAW BOC

CIVIL PROCEDURE

PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS Purpose To order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. [Sec. 12, Rule 7] Requirements The motion must show that the production order is necessary to establish the magnitude of the violation or threat. The motion shall be set for hearing. [Sec. 12, Rule 7] Order The order shall specify: a. The person/s authorized to make the production, and b. The date, time, place, and manner of making the inspection or production, and c. May prescribe other conditions to protect the constitutional rights of all parties. [Sec. 12, Rule 7]

d. Writ of Continuing Mandamus Definition A writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. [Sec. 3(c), Rule 1] When available When any agency or instrumentality of the government or officer: a. Unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law, rule or regulation or a right therein; or b. Unlawfully excludes another from the use or enjoyment of such right; and

REMEDIAL LAW

c. There is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 1, Rule 8] Where to file The petition shall be filed with the RTC exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the CA or SC. [Sec. 2, Rule 8] Form The person aggrieved may file a verified petition: a. Alleging the facts with certainty, b. Attach supporting evidence, c. Specifying that the petition concerns an environmental law, rule, or regulation, and d. Praying that judgment be rendered: i. Commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and ii. To pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules, or regulations. e. Accompanied by a sworn certification of non-forum shopping. [Sec. 1, Rule 8] Procedure File the verified petition [Sec. 1, Rule 8] ↓ Issuance of Writ of Continuing Mandamus and Order to Comment [Sec. 4, Rule 8] ↓ Filing of Comment within 10 days after receipt of Order [Sec. 4, Rule 8] ↓ Summary Hearing [Sec. 6, Rule 8] ↓ Judgment [Sec. 7, Rule 8] ↓ Return of the Writ [Sec. 8, Rule 8] Issuance If the petition is sufficient in form and substance, the writ shall be issued and the court shall require the respondent to comment. [Sec. 4, Rule 8]

Page 246 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: The court may grant a TEPO for the preservation of the rights of the parties pending proceedings. [Sec. 5, Rule 8] Judgment If warranted, the court shall grant the privilege of the writ of continuing mandamus: a. Requiring respondent to perform an act or series of acts until the judgment is fully satisfied, b. Grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent, c. Require the respondent to submit periodic reports detailing the progress and execution of judgment. Note: The court may by itself or through the commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may also submit its comments or observations on the execution of judgment. [Sec. 7, Rule 8] Return of the writ The periodic reports submitted shall be contained in partial returns of the writ. Upon final satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. [Sec. 8, Rule 8] Distinctions Between Writ of Kalikasan and Writ of Continuing Mandamus Writ of Continuing Writ of Kalikasan Mandamus [Rule 7] [Rule 8] Subject Matter Available against an Directed against unlawful [a] the unlawful act or omission of a neglect in the public official or performance of an employee, or private act specifically individual or entity, enjoined by law in involving connection with the environmental enforcement/ damage of such violation of an magnitude as to environmental rule prejudice the life, or health or property of [b] the unlawfully inhabitants in two or exclusion of another more cities or from the use or provinces [Sec. 1] enjoyment of such

REMEDIAL LAW

right and in both instances, there is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec. 1] Who May File Natural and juridical persons b. Entities authorized by law c. POs, NGOs, Person personally PIG, on behalf of aggrieved by the persons whose unlawful act or right to a omission [Sec. 1] balanced and healthful ecology is violated or threatened to be violated [Sec. 1] Respondent May be public or Government or its private individual or officers [Sec. 1] entity [Sec. 1] Docket Fees Exempted [Sec. 4] Exempted [Sec. 3] Venue a. RTC exercising territorial jurisdiction, SC or CA [Sec. 2] b. CA, c. SC [Sec. 3] Discovery Measures Ocular Inspection and Production or None Inspection Order [Sec. 12] Damages Not allowed [Sec. 17] Allowed [Sec. 1] a.

4. Criminal Procedure Filing of the information An information, charging a person with a violation of an environmental law and

Page 247 of 525

U.P. LAW BOC

CIVIL PROCEDURE

subscribed by the prosecutor, shall be filed with the court. [Sec. 2, Rule 9] Provisional remedies available 1. Attachment in environmental cases - Provisional remedy of attachment under R127 of ROC may be availed of in environmental cases. [Sec. 1, Rule 13] 2. EPO/TEPO - The procedure for the issuance of such shall be governed by Rule 2 of these Rules. [Sec. 2, Rule 13]

a. Who May File Who may file Any offended party, peace officer, or any public officer charged with the enforcement of an environmental law may file a complaint before the proper officer in accordance with the ROC. [Sec. 1, Rule 9] Special prosecutor When there is no private offended party, a counsel whose services are offered by any person or organization may be allowed by the court as a special prosecutor, with the consent of and subject to the control and supervision of the public prosecutor. [Sec. 3, Rule 9]

b. Institution of Criminal and Civil Action 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. Exception: When the complainant: a. Waives the civil action, b. Reserves the right to institute it separately, or - Shall be done during arraignment c. Institutes the civil action prior to the criminal action. [Sec. 1, Rule 10]

REMEDIAL LAW

Civil liability/damages When civil liability is imposed or damages are awarded: - The filing and other legal fees shall be imposed on the award in accordance with R141 of ROC. - The fees shall constitute a first lien on the judgment award [Sec. 1, Rule 10] The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. - The award shall be used for the restoration and rehabilitation of the environment adversely affected. [Sec. 1, Rule 10]

c. Arrest Without Warrant, When Valid Warrant of arrest All warrants of arrest issued by the court shall be accompanied by a certified true copy of the information filed with the issuing court. [Sec. 2, Rule 11] Arrest without warrant; when lawful A peace officer or an individual deputized by the proper government agency 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; or b. When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it. Note: Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity. [Sec. 1, Rule 11]

Page 248 of 525

U.P. LAW BOC

CIVIL PROCEDURE

bank for disposition according to the judgment. [Sec. 2, Rule 12]

d. Procedure in The Custody and Disposition of Seized Items Custody and disposition of seized items The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency. [Sec. 1, Rule 12] Procedure In the absence of applicable laws or rules promulgated by the concerned government agency, the following procedure shall be observed: 1. The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances, and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. 2. The apprehending officer shall: a. Submit to the court, he return from the search warrant within 5 days from date of seizure, or b. In case of warrantless arrest, submit to the public prosecutor, the inventory report, photographs, representative samples, and other pertinent documents within 5 days from date of seizure. 3. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. - After hearing, the court shall fix the minimum bid price based on the recommendation of the concerned government agency. - The sheriff shall conduct the auction. 4. The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. 5. The notice of auction shall be posted in 3 conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools, or instruments of the crime were seized. (publication) 6. The proceeds shall be held in trust and deposited with the government depository

REMEDIAL LAW

e. Bail Where filed Bail in the amount fixed may be filed: a. With the court where the case is pending, or b. In the absence or unavailability of the judge, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality. c. In the RTC of the place where the accused was arrested if he was arrested in a place other than where the place was pending, or d. If no judge is available therein, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. [Sec. 1, Rule 14] Hold departure order If the court grants bail, the court may issue a HDO in appropriate cases. [Sec. 1, Rule 14] Duties of the court Before granting the application for bail, the judge must: a. Read the information in a language known to and understood by the accused, and b. Require the accused to sign a written undertaking, as follows: i. To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled and if the accused fails to appear, without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; ii. To appear whenever required by the court where the case is pending; and iii. To waive the right of the accused to be present at trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia. [Sec. 2, Rule 14]

Page 249 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f. Arraignment and Plea Arraignment The court shall set the arraignment of the accused within 15 days from the time it acquires jurisdiction over the accused. Note: Notice shall be given to the public prosecutor, and offended party or concerned government agency that the court will entertain plea bargaining on the date of the arraignment. [Sec. 1, Rule 15] Plea-bargaining Where there is an agreement to the plea offered by the accused, the court shall: a. Issue an order which contains the pleabargaining arrived at; b. Proceed to receive evidence on the civil aspect of the case, if any; and c. Render and promulgate judgment of conviction, including the civil liability for damages. [Sec. 2, Rule 15]

g. Pre-trial Setting of pre-trial conference After the arraignment, the court shall set pretrial within 30 days. Note: The court may refer the case to the COC, if warranted, for preliminary conference to be set at least 3 days prior to pre-trial. [Sec. 1, Rule 16] Manner of pre-trial - All questions or statements must be directed to the court. [Sec. 4, Rule 16] - All agreements or admissions shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. Note: The agreements covering matters referred to in Sec 1, Rule 118 of the ROC shall be approved by the court. [Sec. 5, Rule 16] - All proceedings during pre-trial shall be: a. Recorded, b. The transcripts prepared, and c. The minutes signed by the parties or their counsels. [Sec. 6, Rule 16]

REMEDIAL LAW

Pre-trial order The court shall issue a pre-trial order within 10 days after termination of the pre-trial, setting forth: a. The actions taken during the pre-trial conference, b. The facts stipulated, c. The admissions made, d. The evidence marked, e. The number of witnesses to be presented, and f. The schedule of trial. The order shall bind the parties and control the course of action during the trial. [Sec. 7, Rule 16]

h. Trial Continuous trial The court shall endeavor to conduct continuous trial which shall not exceed 3 months from the date of issuance of the pretrial order. [Sec. 1, Rule 17] Note: Pro bono lawyers will be provided to the accused if he cannot afford the services of counsel or if there is no available public attorney. [Sec. 5, Rule 17] Affidavits Affidavit in lieu of direct examination shall be used, subject to cross-examination and the right to object to inadmissible portions of the affidavit. [Sec. 2, Rule 17] Memoranda The court may require the parties to submit their respective memoranda within 30 days from the date the case is submitted for decision. Note: If possible, the memoranda shall be in electronic form. [Sec. 3, Rule 17] Decision The court shall have 60 days to decide the case counted from the last day of the 30-day period to file the memoranda. Note: This rule shall apply with or without memoranda filed. [Sec. 3, Rule 17]

Page 250 of 525

U.P. LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

b. Documentary Evidence The court shall dispose of the case within 10 months from the date of arraignment. [Sec. 4, Rule 17]

i. Subsidiary Liabilities The court may enforce subsidiary liability against a person or corporation subsidiarily liable under Art 102, 103 of the RPC when: a. The accused is convicted, b. Subsidiary liability is allowed by law, and c. A motion was filed by the person entitled to recover under judgment. [Sec. 1, Rule 18]

5. Evidence a. Precautionary Principle Definition The principle states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. [Sec. 3(f), Rule 1] Applicability The court shall apply the precautionary principle in resolving the case before it when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect. [Sec. 1, Rule 20] Standards for application In applying the principle, the following factors may be considered: a. Threats to human life or health; b. Inequity to present or future generations; or c. Prejudice to the environment without legal consideration of the environmental rights of those affected. Note: The factors enumerated are not exclusive. [Sec. 2, Rule 20]

Photographic, video, and similar evidence Photographs, videos, and similar evidence of events, acts, transactions of wildlife, wildlife byproducts or derivatives, forest products or mineral resources subject of a case shall be admissible when authenticated by: a. The person who took the same, b. Some other person present when said evidence was taken, or c. Any other person competent to testify on the accuracy thereof. [Sec. 1, Rule 21] Entries in official records Entries in official records are prima facie evidence of the facts stated therein when it is made by a. A public officer in the performance of his duty, or b. A person in performance of a duty specially enjoined by law. [Sec. 2, Rule 21]

M. ALTERNATIVE DISPUTE RESOLUTION R.A. 9285: “The Alternative Dispute Resolution Act of 2004” institutionalized the use of alternative modes of dispute resolution in the Philippines. Note: It did not repeal, amend, or modify the jurisdiction of the Katarungang Pambarangay under the LGC. [1 Riano 672, 2016 edition] ADR is meant to serve as an efficient tool and an alternative procedure for the resolution of appropriate cases. RA 9285 shall be without prejudice to the adoption by the SC of any ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before the courts. [Sec. 2, R.A. 9285] Note: The current rules on civil procedure mandate Court-Annexed Mediation and Judicial Dispute Resolution, when deemed necessary by the court.

Page 251 of 525

U.P. LAW BOC

CIVIL PROCEDURE

1. Types Of Processes And Procedures In Adr; Comparison With CourtAnnexed Mediation ADR system The ADR system refers to any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency. It is a system in which a neutral 3rd-party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. [Sec. 3(a), R.A. 9285] ADR processes a. Arbitration - a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award. b. Court-referred mediation - a mediation ordered by a court to be conducted in accordance with the agreement of the parties when an action is prematurely commenced in violation of such agreement. c. Early neutral evaluation - An ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced neutral person, with expertise in the subject in the substance of the dispute. d. Mediation - A voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute. e. Mediation-Arbitration - A step dispute resolution process involving both mediation and arbitration; also known as Med-Arb. [Sec. 3, R.A. 9285]

REMEDIAL LAW

The parties may agree to refer issues arising from a dispute or during its pendency to other forms of ADR such as but not limited to: a. Evaluation of a third-person, b. Mini-trial, c. Mediation-arbitration, or d. A combination thereof. [Sec. 18, R.A. 9285] Court-annexed mediation It is a mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute. [Sec. 3, R.A. 9285] Note: Court-annexed mediation is now mandatory after pre-trial under the amended rules.

2. Domestic Arbitration Domestic arbitration means an arbitration that is not international as defined in the Model Law International arbitration as defined by the Model Law An arbitration is international if: a. The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States.; or b. One of the following places is situated outside the State in which the parties have their place of business: i. The place of arbitration if determined in, or pursuant to, the arbitration agreement; ii. Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or iii. The parties have expressly agreed that the subject-matter of the arbitration agreement is related to more than one country. Governing Law Domestic arbitration shall continue to be governed by R.A. 876: “The Arbitration Law” as amended by chapter 5 of R.A. 9285. [Sec. 32, R.A. 9285]

Page 252 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Note: Articles 8, 10-14, 18, 19, and 29-31 of the Model law and Sec 22-31 of Chapter 4 on International Commercial Arbitration shall apply to Domestic Arbitration. [Sec. 33, R.A. 9285]

3. Judicial Review of Arbitral Awards DOMESTIC AWARDS Confirmation The confirmation of a domestic arbitral award shall be governed by Sec. 23 of R.A. 876. [Sec. 40, R.A. 9285] At any time within 1 month after the award is made, any party to the controversy which was arbitrated may apply to the RTC for an order confirming the award. The court must grant such order in accordance with the rules to be promulgated by the SC unless the award is vacated, modified, or corrected. [Sec. 23, R.A. 876 and Sec. 40, R.A. 9285] Note: Notice of such motion must be served by law for the service of such notice upon an attorney-in-action in the same court. [Sec. 23, R.A. 876] A Construction Industry Arbitration Commission arbitral award need not be confirmed by the RTC to be executory. [Sec. 40, R.A. 9285] Execution A domestic arbitral award, when confirmed, shall be enforced in the same manner as final and executory decisions of the RTC. [Sec. 40, R.A. 9285] Rejection A party to a domestic arbitration may question the arbitral award with the appropriate RTC in accordance with the rules promulgated by the SC. [Sec. 41, R.A. 9285] It may only be questioned on the following grounds:

REMEDIAL LAW

a. There was an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property referred to in the award; or b. The arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; or c. The award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner’s report, the defect could have been amended or disregarded by the court. [Sec. 41, R.A. 9285 and Sec. 25, R.A. 876] FOREIGN ARBITRAL AWARDS Recognition and enforcement The New York Convention shall govern the recognition and enforcement of arbitral awards covered by such convention. [Sec. 42, R.A. 9285] The recognition and enforcement of such awards: a. Shall be filed with the RTC, b. In accordance with the rules promulgated by the SC. - The rules shall provide that the party relying on the award or applying for its enforcement shall file with the court an original copy of the award or arbitration agreement. - Note: if it is not in any of the official languages, the party shall supply a duly certified translation. c. The applicant shall establish that the country in which the foreign arbitration award was made if a party to the New York Convention. [Sec. 42, R.A. 9285] When there is an application for rejection or suspension of enforcement of the award, the RTC may: a. Vacate its decision, and b. On application of the party claiming recognition or enforcement, order the party to provide appropriate security. [Sec. 42, R.A. 9285]

Page 253 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Arbitral awards not covered by the New York Convention The Court may, on the grounds of comity and reciprocity, recognize and enforce a nonconvention award as a convention award. [Sec. 43, R.A. 9285] Foreign arbitral awards not a foreign judgment A foreign arbitral award when confirmed by a court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not a judgment of a foreign court. [Sec. 44, R.A. 9285] A foreign arbitral award, when confirmed by the RTC, shall be enforced as a foreign arbitral award and not as a judgment of a foreign court. It shall be enforced in the same manner as final and executory decisions of courts of law in the Philippines. [Sec. 44, R.A. 9285] Rejection A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the rules to be promulgated by the SC.

4. Appeal From Court Decisions On Arbitral Awards Appeal A decision of the RTC confirming, vacating, setting aside, modifying, or correcting an arbitral award may be appealed to the CA in accordance with the rules to be promulgated by the SC. [Sec. 46, R.A. 9285] Bond The appellant must post a counterbond executed in favor of the prevailing party equal to the amount of the award in accordance with the rules to be promulgated by the SC. [Sec. 46, R.A. 9285]

REMEDIAL LAW

VENUE AND JURISDICTION Nature and venue Proceedings for recognition and enforcement, vacation and setting aside, correction, or modification of an arbitral award, and any application for arbitral assistance and supervision, shall be deemed as special proceedings and shall be filed with the RTC: a. Where arbitration proceedings are conducted; b. Where the asset to be attached or levied upon, or the act to be enjoined is located; c. Where any of the parties to the dispute resides or has his place of business; or d. In the national judicial capital region, at the option of the applicant. [Sec. 47, R.A. 9285] Notice of proceedings Where The court shall send notice to the parties at their address of record in the arbitration or at the party’s last known address if he cannot be served at such address. [Sec. 48, R.A. 9285] When The notice shall be sent at least 15 days before the date set for the initial hearing of the application. [Sec. 48, R.A. 9285]

5. Special Rules Of Court on ADR [AM No. 07-11-08-SC] Nature All proceedings under the Special ADR Rules are special proceedings. [Sec. 2, Rule 1]

a. Subject Matter The Special ADR Rules shall apply to and govern the following cases: a. Relief on the issue of existence, validity, or enforceability of the arbitration agreement; b. Referral to ADR; c. Interim measures of protection; d. Appointment of arbitrator; e. Challenge to appointment of arbitrator;

Page 254 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f. Termination of mandate of arbitrator; g. Assistance in taking evidence; h. Confirmation, correction, or vacation of award in domestic arbitration; i. Recognition and enforcement or setting aside of an award in international commercial arbitration; j. Recognition and enforcement of a foreign arbitral award; k. confidentiality/ protective orders; and l. Deposit and enforcement of mediated settlement agreements. [Sec. 1, Rule 1]

b. Summary Proceedings Certain Cases

in

The proceedings in the following instances are summary in nature: a. Judicial relief involving the issue of existence, validity, or enforceability of the arbitration agreement; b. Referral to ADR; c. Interim measures for protection; d. Appointment of arbitrator; e. Challenge to appointment of arbitrator; f. Termination of mandate of arbitrator; g. Assistance in taking evidence; h. Confidentiality/ protective orders; and i. Deposit and enforcement of mediated settlement agreements. [Sec. 3, Rule 1] Service and filing of petition The petitioner shall serve a copy of the petition on the respondent before the filing thereof: a. By personal service b. By courier Proof of service shall be attached to the petition filed in court. Mode of Proof of service service Affidavit of the person who Personal effected service, stating the service time, place, and manner of the service of the respondent. Service by Signed courier proof of delivery courier

REMEDIAL LAW

Note: If service is refused or has failed, the affidavit or delivery receipt must state the circumstances of the attempted service and refusal or failure thereof. [Sec. 3(A), Rule 1] Notice General Rule: If the court finds the petition sufficient in form and substance, it shall send notice to the parties containing: a. A directive to appear at a particular time and date for hearing - Hearing shall be set no later than 5 days from the lapse of the period for filing the opposition or comment. b. A statement allowing him to file a comment or opposition to the petition within 15 days from receipt of notice Exception: Cases involving referral to ADR or confidentiality/protection orders. Such motion shall be set for hearing by the movant and contain a notice of hearing that complied with the requirements under Rule 15 of the ROC motions. [Sec. 3(B), Rule 1] Summary hearing In all cases, as far as practicable, the summary hearing: a. Shall be conducted in 1 day, and b. Only for the purposes of clarifying facts. Note: Except in cases involving referral to ADR or Confidentiality/protective orders, it shall be the court that sets the hearing within 5 days from the lapse of the period for filing opposition or comment. [Sec. 3(C), Rule 1] Resolution The court shall resolve the matter within 30 days from the day of the hearing. [Sec. 3(D), Rule 1]

Page 255 of 525

U.P. LAW BOC

CIVIL PROCEDURE

c. Prohibited Submissions The following pleadings, motions, or petitions shall not be allowed in the cases governed by the Special ADR Rules and shall not be accepted for filing by the COC: a. Motion to dismiss; b. Motion for bill of particulars; c. Motion for new trial or for reopening of trial; d. Petition for relief from judgment; e. Motion for extension, except in cases where an ex-parte temporary order of protection has been issued; f. Rejoinder to reply; g. Motion to declare a party in default; and h. Any other pleading specifically disallowed under any provision of the Special ADR Rules. [Sec. 6, Rule 1] Court action The court shall motu proprio order a pleading/motion that it has determined to be dilatory in nature, be expunged from the records. [Sec. 6, Rule 1]

d. Judicial Relief Involving the Issue of Existence, Validity, and Enforceability of Arbitration Agreements When available Judicial relief under Rule 3 of the Special ADR Rules, whether resorted to before or after commencement of arbitration, shall apply only when the place of arbitration is in the Philippines. [Sec. 1, Rule 3] JUDICIAL RELIEF BEFORE COMMENCEMENT OF ARBITRATION Who may file Any party to an arbitration agreement may petition the appropriate court to determine any question concerning the existence, validity, and enforceability of such arbitration agreement, serving a copy on the respondent. [Sec. 2, Rule 3]

REMEDIAL LAW

When filed The petition may be filed at any time prior to the commencement of arbitration. Note: Despite the pendency of the petition, arbitral proceedings may be commenced and continue to the rendition of an award. [Sec. 3, Rule 3] The petition may not be commenced when the existence, validity, enforceability of an arbitration agreement has been raised as one of the issued in a prior action before the same or another court. [Sec. 9, Rule 3] Where filed The petition may be filed before the RTC of the place where any of the petitioners or respondents has his principal place of business or residence. [Sec. 4, Rule 3] Grounds A petition may be granted only if it is shown that the arbitration agreement is, under the applicable law: a. Invalid, b. Void, c. Unenforceable, or d. Inexistent. [Sec. 5, Rule 3] Contents of the petition The verified petition shall state the following: a. The facts showing that the persons names as petitioner or respondent have legal capacity to be sued; b. The nature and substance of dispute between the parties; c. The grounds and circumstances relied upon by the petitioner to establish position; d. The reliefs sought. Aside from other submissions, the petitioner must also attach an authentic copy of the arbitration agreement. [Sec. 6, Rule 3] When the petitioner also applies for an interim measure of protection, he must also comply with the requirements for the application of such interim measure of protection. [Sec. 10, Rule 3]

Page 256 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Comment/Opposition The comment/opposition of the respondent must be filed within 15 days from service of the petition. [Sec. 7, Rule 3] Court action The court must exercise judicial restraint and defer to the competence or jurisdiction of the arbitral tribunal to rule on its incompetence or jurisdiction. [Sec. 8, Rule 3] Relief against court action A prima facie determination by the court upholding the existence, validity, or enforceability of an arbitration agreement shall not be subject to a motion for reconsideration, appeal, or certiorari. Such determination, however, will not prejudice the right of any party to raise the issue of existence, validity, and enforceability of the arbitration agreement before the arbitral tribunal or the court in an action to vacate or set aside the arbitral award. - In this case, the court is no longer limited to a mere prima facie determination of the issues, but shall be a full review of such issues with due regard to the standard for review for arbitral awards prescribed in the Special ADR Rules. [Sec. 11, Rule 3] JUDICIAL RELIEF AFTER ARBITRATION COMMENCES Who may file Any party to arbitration may petition the appropriate court for judicial relief from the ruling of the arbitral tribunal on a preliminary question upholiding or declining its jurisdiction. Note: If the ruling of the arbitral tribunal is reversed by the court, the parties shall be free to replace the arbitrators or any one of them in accordance with the rules that were applicable for the appointment of the arbitrator sought to be replaced. [Sec. 12, Rule 3] Arbitral tribunal The arbitral tribunal is only a nominal party and the court shall not require the tribunal to submit any pleadings or written submissions.

REMEDIAL LAW

The court may consider the same should the tribunal participate in the proceedings. [Sec. 22, Rule 3] When filed The petition may be filed within 30 days after having received notice of that ruling by the arbitral tribunal. [Sec. 13, Rule 3] Where filed The petition may be filed before the RTC of the place where arbitration is taking place, or where any of the petitioners or respondents has his principal place of business or residence. [Sec. 14, Rule 3] Grounds The petition may be granted when the court finds that the arbitration agreement is: a. Invalid, b. Inexistent, or c. unenforceable As a result of which, the arbitral tribunal has no jurisdiction to resolve the dispute. [Sec. 15, Rule 3] When petition not allowed Where the arbitral tribunal defers its ruling on preliminary questions regarding its jurisdiction until its final award, the aggrieved party cannot seek judicial relief. He must await the final arbitral award before seeking judicial recourse. [Sec. 20, Rule 3] A ruling by the arbitral tribunal deferring resolution on the issue of its jurisdiction until final award, shall not be subject to MR, appeal, or a petition for certiorari. [Sec. 20, Rule 3] Contents of the petition The petition shall state the following: a. The facts showing that the persons names as petitioner or respondent have legal capacity to be sued; b. The nature and substance of dispute between the parties; c. The grounds and circumstances relied upon by the petitioner to establish position; d. The reliefs sought.

Page 257 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Aside from other submissions, the petitioner must also attach an authentic copy of the arbitration agreement. [Sec. 16, Rule 3] Note: The arbitrators shall be impleaded as nominal parties to the case and shall be notified of the progress of the case. [Sec. 16, Rule 3] Comment/Opposition The comment/opposition of the must be filed within 15 days from service of the petition. [Sec. 17, Rule 3]

REMEDIAL LAW

If the arbitral tribunal renders a final arbitral award and the court has not rendered a decision on the petition from the tribunal’s preliminary ruling affirming its jurisdiction, then the petition shall be ipso facto moot and academic and shall be dismissed by the RTC. Note: The dismissal shall be without prejudice the right of the aggrieved party to raise the same issue in a petition to vacate or set aside the award. [Sec. 21, Rule 3]

e. Interim Measures of Protection Court action The court shall render judgment on the basis of the pleadings filed and the evidence submitted by the parties, within 30 days from the time the petition is submitted for resolution. Note: The court shall not enjoin the arbitration proceedings and judicial recourse to the court shall not prevent the tribunal from continuing proceedings and rendering its award. [Sec. 18, Rule 3] Dismissal of petition The court shall dismiss the petition if: a. It fails to comply with the required contents for the petition, or b. If upon consideration or the grounds alleged and the legal briefs submitted, the petition does not appear to be prima facie meritorious. [Sec. 18, Rule 3] Relief against court action The aggrieved party may file a MR of the order of the court. The decision of the court shall not be subject to appeal. [Sec. 19, Rule 3] The ruling of the court affirming the arbitral tribunal’s jurisdiction shall not be subject to a petition for certiorari. But if the court rules that the arbitral tribunal has no jurisdiction, such ruling may be the subject of a petition for certiorari. [Sec. 19, Rule 3] Rendition of arbitral award before court decision on petition from arbitral tribunal’s preliminary ruling on jurisdiction

Who may ask for interim measures of protection A party to an arbitration agreement may petition the court for interim measures of protection. [Sec. 1, Rule 5] When to petition A petition for an interim measure of protection may be made: a. Before arbitration is commenced, b. After arbitration is commenced, but before the constitution of the arbitral tribunal, or c. After the constitution of the arbitral tribunal and at any time during arbitral proceedings. - During this time, the interim measure of protection shall only be to the extent that the arbitral tribunal has no power to act or is unable to act effectively. [Sec. 2, Rule 5] Where to file A petition for an interim measure of protection may be filed with the RTC, which has jurisdiction over any of the following places: a. Where the principal place of business of any of the parties to the arbitration is located; b. Where any of the parties who are individuals resides; c. Where any of the acts sought to be enjoined are being performed, threatened to be performed, or not being performed; or d. Where the real property subject of arbitration, or a portion thereof is situated. [Sec. 3, Rule 5]

Page 258 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Grounds The following grounds, indicate the nature of the reasons that the court shall consider in granting the relief: a. The need to prevent irreparable loss or injury; b. The need to provide security for the performance of any obligation; c. The need to produce or preserve evidence; d. The need to compel any other appropriate act or omission. Note: The grounds enumerated shall not limit the reasons for the court to grant an interim measure of protection. [Sec. 4, Rule 5] Contents of the petition The verified petition must state the following: a. The fact that there is an arbitration agreement; b. The fact that the arbitral tribunal has not been constituted, or if constituted, is unable to act or would be unable to act effectively; c. A detailed description of the appropriate relief sought; d. The grounds relied on for the allowance of the petition. The petitioner must also attach an authentic copy of the arbitration agreement. [Sec. 5, Rule 5] Interim measures that may be granted The following, among others, are the interim measures of protection that a court may grant: a. Preliminary injunction directed against a party to arbitration; b. Preliminary attachment against property or garnishment of funds in the custody of a bank or 3rd person; c. Appointment of a receiver; d. Detention, preservation, delivery, or inspection of property; or e. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal, which the latter cannot enforce effectively. [Sec. 6, Rule 5] Ex parte temporary order of protection Grounds a. The petitioner alleges that there is an urgent need to:

REMEDIAL LAW

i. ii.

Preserve property, Prevent the respondent from disposing or concealing the property, or iii. Prevent the relief prayed for from becoming illusory because of prior notice. b. The court finds that the reasons given are meritorious. In such instances, the court shall issue an immediately executory temporary order of protection and require the petitioner within 5 days from receipt to post a bond to answer for any damage that the respondent may suffer as a result of the order. [Sec. 9, Rule 5] Note: Prior notice to the other party shall not be necessary. [Sec. 7, Rule 5] The temporary order of protection shall be valid only for 20 days from the service on the party required to comply with the order. Within such period, the court shall: a. Furnish the respondent of a copy of the petition and a notice requiring him to comment on or before the day the petition will be heard; and b. Notify the parties that the petition shall be heard on a day specified in the notice, which must not be beyond the 20 day period. The respondent may have the option of having the order lifted by posting a counter-bond. The court may extend the period of validity of the order for no more than 20 days from expiration of the original period, if a. The respondent requests the court of: i. An extension of the period to file an opposition/comment, or ii. To reset the hearing to a later date. b. The request is granted by the court. [Sec. 9, Rule 5] Comment/Opposition The comment or opposition must be filed within 15 days from service of the petition and must state why the interim measure for protection should not be granted. [Sec. 8, Rule 5]

Page 259 of 525

U.P. LAW BOC

CIVIL PROCEDURE

If the parties fail to file their opposition, the court shall motu proprio render judgment: a. On the basis of the allegations in the petition that are substantiated by supporting documents, and b. Limited to what is prayed for. [Sec. 9, Rule 5] Court action General rule: The court shall defer action on any pending petition for an interim measure of protection upon being informed that an arbitral tribunal has been constituted. Exception: The court may act upon such petition if the petitioner establishes that: a. The tribunal has no power to act on the interim measure of protection, or b. The tribunal is unable to act on it effectively. [Sec. 15, Rule 5] After hearing, the court shall resolve the matter within 30 days: a. From submission of the opposition, or b. Upon lapse of the period to file the same, or c. From termination of the hearing set by the court if there is a need for clarification or further argument. [Sec. 9, Rule 5] After notice and hearing, the court may either grant or deny the petition for an interim measure of protection. - Such order must indicate that it is issued without prejudice to subsequent grant, modification, amendment, revision, or revocation by an arbitral tribunal. [Sec. 9, Rule 5] - The order shall be immediately executory. [Sec. 10, Rule 5] - The order may be conditioned upon the provision of security, performance of an act or omission. [Sec. 12, Rule 5] - The order granted or denied is without prejudice to subsequent grant, modification, amendment, revision, or revocation by the arbitral tribunal. [Sec. 5, Rule 5]

REMEDIAL LAW

Relief against court action The order may be the subject of a MR, and/or appeal, or a petition for certiorari. [Sec. 10, Rule 5] Interim measure of protection by arbitral tribunal The interim measure of protection issued by the arbitral tribunal shall, upon its issuance, be deemed to have ipso jure modified, amended, revised, or revoked one previously issued by the court to the extent that it is inconsistent with the one issued by the tribunal. [Sec. 13, Rule 5] The court may not change the security ordered by the arbitral tribunal. [Sec. 12, Rule 5] The court shall assist in the enforcement of an interim measure of protection issued by the arbitral tribunal. [Sec. 16, Rule 5] The court shall not deny an application for assistance in implementing or enforcing an interim measure of protection issued by an arbitral tribunal on the following grounds: a. The tribunal granted the relief ex parte; b. The party opposing the application found new material evidence, which the tribunal had not considered in granting the application and if considered, may produce a different result; or - If there is sufficient merit in the opposition of the application based on this ground, the court shall refer the matter back to the arbitral tribunal c. The measure of protection ordered by the tribunal amends, revoked, modifies, or is inconsistent with an earlier measure of protection issued by the court. [Sec. 11, Rule 5] Conflict or inconsistency between the interim measure of protection issued by the court and the arbitral tribunal Any question involving conflict or inconsistency shall be immediately referred by the court to the arbitral tribunal which shall have the authority to decide such question. [Sec. 14, Rule 5]

Page 260 of 525

U.P. LAW BOC

CIVIL PROCEDURE

f. Enforcement and Recognition or Setting Aside of an International Commercial Arbitral Award Note: Recourse to a court against an arbitral award shall be made only through a petition to set aside the arbitral award and on the grounds prescribed by law. Any other recourse such as by appeal, petition for review, or petition for certiorari shall be dismissed by the court. [Sec. 5, Rule 12] Who may file A party to an international commercial arbitration in the Philippines, may petition the proper court to recognize and enforce or set aside an arbitral award. [Sec. 1, Rule 12] When to file 1. Petition to recognize and enforce [Sec. 2(A), Rule 12] - May be filed anytime from receipt of award - However, if a petition to set aside has been filed, the opposing party must file therein if it is not yet time-barred. [Sec. 6, Rule 12] 2. Petition to set aside [Sec. 2(B), Rule 12] - May only be filed within 3 months from the time the petitioner receives a copy of the arbitral award. Or from the time he received the resolution by the arbitral award of a request for correction, interpretation, or additional award. - Note: The dismissal of a petition to set aside an arbitral award shall not automatically result in the approval of the petition or opposition for recognition and enforcement of the award. - Failure to file a petition to set aside, shall preclude a party from raising grounds to resist enforcement of the award. Where to file The petition may, at the option of the petitioner, be filed with the RTC: a. Where arbitration proceedings were conducted;

REMEDIAL LAW

b. Where any of the assets to be attached or levied upon is located; c. Where the act to be enjoined will be or is being performed; d. Where any of the parties to the arbitration resides or has its place of business; or e. In the national capital judicial region. [Sec. 3, Rule 12] Form and contents The application shall be verified by a person who has personal knowledge of the facts state. [Sec. 6, Rule 12] 1. Petition to recognize and enforce shall state the following: a. The addresses of record, or any change thereof, of the parties to arbitration; b. A statement that the arbitration agreement or submission exists; c. The names of the arbitrators and proof of their appointment; d. A statement that an arbitral award was issued and when the petitioner received it; and e. The relief sought. Apart from other submissions, the petitioner shall attach to the petition the following: a. An authentic copy of the arbitration agreement; b. An authentic copy of the arbitral award; c. A verification and certification against forum shopping; and d. An authentic copy or authentic copies of the appointment of an arbitral tribunal. 2. Petition to set aside - Shall have the same contents as a petition to recognize and enforce - In addition, the petition should state the grounds relied upon to set it aside. In either case, if another court was previously requested to resolve and/or has resolved, on appeal, the arbitral tribunal’s preliminary determination in favor of its own jurisdiction, the petitioner shall apprise the court. [Sec. 7, Rule 12]

Page 261 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Notice If the petition is sufficient in form and substance, the court shall cause notice and a copy of the petition to be delivered to the respondent. - It shall direct the respondent to file an opposition within 15 days from receipt or to file a petition to set aside in opposition to a petition to recognize and enforce or a petition to recognize and enforce in opposition to a petition to set aside. [Sec. 8, Rule 12] Grounds to set aside or resist enforcement The court may set aside or refuse the enforcement of the arbitral award only if: a. The petitioner furnishes proof that: i. A party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; ii. The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; iii. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; - If the decisions on the matters are separable, only that part of the award which contains decisions on matters not submitted may be set aside. iv. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law.

REMEDIAL LAW

b. The court finds that: i. The subject-matter of the dispute is not capable of settlement by arbitration under the Philippine law; or ii. The recognition or enforcement of the award would be contrary to public policy. Note: The grounds enumerated are exclusive. [Sec. 4, Rule 12] Party is a minor/incompetent The petition to set aside on the ground that a party was a minor or an incompetent, shall be filed only on behalf of the minor or incompetent and shall allege that: a. The other party had knowingly entered into a submission or agreement with such minor/incompetent, or b. The submission to arbitration was made by a guardian who was not authorized to do so by a competent court. [Sec. 4, Rule 12] Submission of documents 1. If the court finds that the issue between the parties is mainly one of law - The parties may be required to submit briefs of legal arguments within 15 days from receipt of order. 2. If the court finds that there are issued of facts relating to the grounds to set aside - The parties shall be required to submit affidavits of all their witnesses within 15 days from receipt of order and reply affidavits within 10 days from receipt of the affidavits to be replied to. - The documents relied upon shall be attached to the affidavits. [Sec. 9, Rule 12] Hearing If the court finds that there is a need to conduct an oral hearing based on the petition, opposition, and affidavits, the court shall set the case for hearing. - The affidavits shall take the place of direct testimonies and shall be immediately subject to cross-examination. Note: This case shall have preference over other cases before the court, except criminal cases. [Sec. 10, Rule 12]

Page 262 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Suspension of proceedings in a petition to set aside The court may suspend the proceedings when appropriate and upon request by a party to: a. Give the tribunal an opportunity to resume the arbitral proceedings, or b. Take such action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside, or c. When there is a pending appeal as to the preliminary ruling of an arbitral tribunal affirming its jurisdiction. Note: The court is not allowed to direct the tribunal to reverse its award, revise its findings, or otherwise encroach upon the independence of the tribunal. [Sec. 11, Rule 12] Presumption in favor of confirmation It is presumed that an arbitral award: a. Was made and released in due course, and b. Is subject to enforcement by the court. Unless, the adverse party is able to establish a ground for setting aside or not enforcing the award. [Sec. 12, Rule 12] Judgment of the court Petition to set aside - Unless the ground to set aside the award is fully established, the court shall dismiss the petition. - If there is also a petition to recognize and enforce filed in opposition to the petition to set aside, the court shall recognize and enforce the award. Note: In resolving the petition, the court shall either set aside or enforce the arbitral award and shall not disturb the tribunal’s determination of facts and/or interpretation of law. [Sec. 13, Rule 12] Costs The prevailing party shall be entitled to an award of costs. The petitioner shall submit a statement under oath confirming the costs (including attorney’s fees) he has incurred in the proceedings for recognition and enforcement or setting aside. Unless otherwise agreed upon by the parties in writing. [Sec. 14, Rule 12]

REMEDIAL LAW

g. Recognition and Enforcement of a Foreign Arbitral Award Governing law The recognition and enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and this Rule (Rule 13). When country not a signatory to the New York Convention The court may, upon grounds of comity and reciprocity, recognize and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention. [Sec. 4, Rule 13] - Only when such country extends comity and reciprocity to awards made in the Philippines. If not, the court may nevertheless treat such award as a foreign judgment enforceable as such under Sec 48, Rule 39 of the ROC. [Sec. 12, Rule 13] Who may file Any party to a foreign arbitration may petition the court to recognize and enforce a foreign arbitral award. [Sec. 1, Rule 13] When to file At any time after receipt of a foreign arbitral award, the party may petition to the proper RTC to recognize and enforce such award. [Sec. 2, Rule 13] Where to file The petition shall be filed, at the option of the petitioner, with the RTC: a. Where the assets to be attached or levied upon is located, b. Where the act to be enjoined is being performed, c. In the principal place of business in the Philippines of any of the parties, d. Where any of the individuals who are parties resides, e. In the national capital judicial region. [Sec. 3, Rule 13]

Page 263 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Presumption in favor of confirmation It is presumed that a foreign arbitral award: a. Was made and released in due course of arbitration, and b. Is subject to enforcement by the court. [Sec. 11, Rule 13] Grounds The court may not set aside a foreign arbitral award. It may refuse recognition and enforcement on the following grounds: a. The party making the application to refuse recognition and enforcement furnishes proof that: i. A party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under the law of the country where the award was made; or ii. The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or iii. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; - if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or iv. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or v. The award has not yet become binding on the parties or has been set aside or suspended by a court of the

REMEDIAL LAW

country in which that award was made; or b. The court finds that: i. The subject-matter of the dispute is not capable of settlement or resolution by arbitration under Philippine law; or ii. The recognition or enforcement of the award would be contrary to public policy. Note: The grounds are exclusive. [Sec. 4, Rule 13] Contents The petition shall state the following: a. The addresses of the parties to the arbitration; b. The country where the award was made and whether such country is a signatory to the New York Convention; and c. The relief sought. Apart from other submissions, the petition shall attach: a. An authentic copy of the arbitration agreement; and b. An authentic copy of the arbitral award. Note: If such documents are not in English, the petitioner shall attach a translation which shall be certified by an official or sworn translator or by a diplomatic/consular agent. [Sec. 5, Rule 13] Notice Upon finding that the petition is sufficient in form and substance, the court shall cause notice and a copy of the petition to be delivered to the respondent. [Sec 6, Rule 13] Opposition The respondent may file an opposition within 30 days from receipt of notice. [Sec. 6, Rule 13] - It shall be verified by a person who has personal knowledge of the facts stated. [Sec. 7, Rule 13] Submissions 1. If the issue between the parties is one of law

Page 264 of 525

U.P. LAW BOC

CIVIL PROCEDURE

-

The parties may be required to submit briefs of legal arguments within 30 days from receipt of order 2. If there are issues of fact relating to the grounds relied upon for the court to refuse enforcement - The court shall motu proprio or on request of either party, require the parties to submit affidavits of their witnesses within 15-30 days from receipt of order - The court may allow the submission of reply affidavits within 15-30 days from receipt of order granting the request of the party. [Sec. 8, Rule 13] Hearing The court shall set the case for hearing if there is a need to do so. - The affidavits shall take the place of direct testimony and shall immediately be subject to cross-examination. Note: The court shall give due priority to the hearings on petitions under this rule. [Sec. 9, Rule 13] Adjournment/ decision of decision The court may adjourn or defer rendering a decision if an application for setting aside or suspension of the award has been made with a competent authority in the country where the award was made. - Upon application, the court may also require the other party to give suitable security. [Sec. 10, Rule 13] Court action The court shall recognize and enforce a foreign arbitral award unless a ground to refuse under the rules is fully established. In resolving the petition in accordance with the Special ADR Rules, the court shall either: a. Recognize and/or enforce, or b. Refuse to recognize and enforce the arbitral award. Note: The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. [Sec. 11, Rule 13]

REMEDIAL LAW

Court decision The decision of the court recognizing and enforcing a foreign arbitral award is immediately executory. [Sec. 11, Rule 13]

h. Special Civil Certiorari

Action

for

When available A party may file a special civil action for certiorari to annul or set aside a ruling to the RTC when: a. The RTC makes a ruling under the Special ADR Rules, b. Acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and c. There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. A special civil action for certiorari may be filed against the following orders of the court: a. Holding that the arbitration agreement is inexistent, invalid, or unenforceable; b. Reversing the arbitral tribunal’s preliminary determination upholding its jurisdiction; c. Denying the request to refer the dispute to arbitration; d. Granting or refusing an interim relief; e. Denying the petition for the appointment of an arbitrator; f. Confirming, vacating, or correcting a domestic arbitral award; g. Suspending the proceedings to set aside an international commercial arbitral award and referring the case back to the arbitral tribunal; h. Allowing a party to enforce an international commercial arbitral award pending appeal; i. Adjourning or deferring a ruling on whether to set aside, recognize, and/or enforce an international commercial arbitral award; j. Allowing a party to enforce a foreign arbitral award pending appeal; and k. Denying a petition for assistance in taking evidence. [Sec. 26, Rule 19]

Page 265 of 525

U.P. LAW BOC

CIVIL PROCEDURE

Form The petition shall be accompanied by: a. A certified true copy of the questioned judgment, order, or resolution of the RTC, b. Copies of all the pleadings and documents relevant and pertinent thereto, and c. A sworn certification of non-forum shopping as provided in the ROC. [Sec. 27, Rule 19] Docket fees General rule: Upon filing of the petition, the petitioner shall pay to the COC of the CA docketing fees and other lawful fees of P3,500 and deposit the sum of P500 for costs. Exception: When the CA prescribes otherwise. • Exemption from such may be granted by the CA upon a verified motion setting forth valid grounds therefor. • If the CA denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within 15 days from the notice of the denial. [Sec. 27, Rule 19] When to file The petition must be filed with the CA within 15 days from notice of the judgment, order, or resolution sought to be annulled or set aside. Note: No extension of time to file the petition shall be allowed. [Sec. 28, Rule 19] Arbitral tribunal as a nominal party The arbitral tribunal shall only be a nominal party in the petition for certiorari. • It shall not be required to submit any pleadings or written submissions to the court. • It may submit pleadings or written submissions if it serves the interest of justice. Note: In petitions relating to the recognition and enforcement of a foreign arbitral tribunal, the tribunal shall not be included even as a nominal party. However, the tribunal may be notified of the proceedings and furnished with court processes. [Sec. 29, Rule 19]

REMEDIAL LAW

Action of the court 1. Court to dismiss the petition [Sec. 30, Rule 19] a. If it fails to comply with the form, docket fees, and period to file under Rule 19.27 and 19.28; or b. If upon consideration of the ground alleged and the legal briefs submitted, the petition does not appear to be prima facie meritorious. 2. Court to order the respondent to comment [Sec. 31, Rule 19] • If the petition is sufficient in form and substance, the CA shall issue an order requiring the respondent to comment on the petition within 15 days from receipt of the copy thereof. • The order shall be served on the respondents in such a manner as the court may direct, together with a copy of the petition and any annexes thereto. Arbitration to continue A petition for certiorari shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award. Should the arbitral tribunal continue with the proceedings the arbitral proceedings and any award rendered therein will be subject to the final outcome of the pending petition for certiorari. [Sec. 32, Rule 19] The CA shall not, during the pendency of the proceedings before it, prohibit or enjoin: a. The commencement of the arbitration, b. The constitution of the arbitral tribunal, or c. The continuation of the arbitration. [Sec. 33, Rule 19] Court decision After the comment is filed or the time for filing has expired, the court shall render judgment granting the relief prayed for or which the petitioner is entitled, or denying the same within 15 days. [Sec. 34, Rule 19] A certified copy of the judgment shall be served upon the RTC in such a manner as the CA may direct, and disobedience thereto shall be punished as contempt. [Sec. 35, Rule 19]

Page 266 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS REMEDIAL LAW

Page 267 of 525

REMEDIAL LAW

U.P. LAW BOC

SPECIAL PROCEEDINGS

II. SPECIAL PROCEEDINGS SUBJECT MATTER OF SPECIAL PROCEEDINGS; APPLICABILITY OF GENERAL RULES In the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, applicable in special proceedings [Sec. 2, Rule 72] Rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Provisions of the ROC requiring a certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person in the present case [Sheker v. Sheker, G.R. No. 157912 (2007)] Action vs. Special Proceedings An action is a formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term “special proceedings” may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon application or motion [Natcher v. CA, G.R. No. 133000 (2001)]

REMEDIAL LAW

Cases governed; civil action v. special proceeding a. A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. b. A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Sec. 3(a), 3(b), Rule 1] General rule: Special proceedings are nonadversarial in nature Exception: May become adversarial when there are oppositors to the petition [De Leon & Wilwayco, Special Proceedings: Essentials for Bench and Bar (2015)] A special proceeding has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. [Montañer v. Shari’a District Court, G.R. No. 174975 (2009)]

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS MODES OF SETTLEMENT OF ESTATE 1. Extrajudicial (no will, no debts) a. If only one heir – Affidavit of Selfadjudication b. If heirs are all of age or the minors are represented, and all agree – Deed of Extrajudicial Settlement [Sec. 1, Rule 74] 2. Judicial a. If no will, no debts, more than one heir, and should heirs disagree – Partition [Rule 69] b. Summary Settlement of Estate of Small Value [Sec. 2, Rule 74]

Page 268 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

c. Petition for Letters of Administration [Rule 79] d. Probate of a Will [Rules 75-79] i. Petition for Letters Testamentary or ii. Petition for Letters of Administration with the will annexed (if no named executor)

1. Which Court has Jurisdiction Exclusive original jurisdiction over all matters of probate, both testate and intestate, shall lie with: Outside Metro Manila

MTC if gross value of the estate does not exceed P300,000 If it exceeds such value, then RTC

In Metro Manila

MTC if gross value of the estate does not exceed P400,000 Otherwise, RTC

[Sec. 19 and 31, B.P. 129, as amended by R.A. 7691; Maloles II v. Philips, G.R. Nos. 129505 and 133359 (2000); Lim v. CA, G.R. No. 124715 (2000)] Exclusive jurisdiction Sec. 1 of Rule 73 refers to courts in the Philippines and simply means that once a special proceeding for the settlement of the estate of a decedent is filed in one of such courts, that court has exclusive jurisdiction over said estate and no other special proceedings involving the same subject matter may be filed before any other court. [Republic v. Villarama, Jr., G.R. No. 117733 (1997)] The ROC likewise provides that the Court first taking cognizance of the settlement of the estate of the decedent, shall exercise

REMEDIAL LAW

jurisdiction to the exclusion of all other Courts. There should be no impediment to the application of said Rules as they apply suppletorily to the Code of Muslim Personal Laws, there being nothing inconsistent with the provisions of the latter statute [Musa v. Moson, G.R. No. 95574 (1991)] Testate proceedings take precedence over intestate proceedings of the same estate [Sandoval v. Santiago, G.R. No. L-1723 (1949)] Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will and testament, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged will be rejected or is disapproved, the proceeding shall continue as an intestacy [Uriarte v. CFI, G.R. No. L-21938 (1970)]

2. Venue in Judicial Settlement of Estate Inhabitant of the Philippines at the time of death (citizen or alien) Inhabitant of a foreign country at the time of death

Court of the province where decedent resided at time of death Court of any province where decedent had estate

[Sec. 1, Rule 73] Residence In the application of venue statutes and rules, residence rather than domicile is the significant factor. The word “resides” means personal,

Page 269 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

actual, or physical habitation of a person, or his actual residence or place of abode. It does not mean legal residence or domicile [Fule v. CA, G.R. No. L-40502 (1976); Garcia-Quiazon v. Belen, G.R. No. 189121 (2013); San Luis v. San Luis, G.R. Nos. 133743 and 134029 (2007)] Even where the statute uses the word ‘domicile’, it must be construed as meaning residence [Festin 16, 2011 Ed.] Note: “Jurisdiction” as used in Rule 73 means venue. If venue is improperly laid General rule: Ordinary appeal Exception: Certiorari may be resorted to in case of impropriety of venue (due to residence or location of estate) appears on the record. [Sec. 1, Rule 73]

3. Extent of Jurisdiction Probate Court

of

The probate jurisdiction relates only to matters having to do with the settlement of the estate and probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians, and trustees [Ramos v. CA, G.R. No. (1989)] General rule: A probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties [Ignacio v. Reyes, G.R. 213192 (2017)] Exceptions: a. In a provisional manner to determine whether said property should be included or excluded in the inventory, without prejudice to final determination of title in a separate action [Cuizon v. Ramolete, G.R. No. L-51291 (1984)]

REMEDIAL LAW

b. With consent of all the parties, without prejudice to the rights of third persons [Trinidad v. CA, G.R. No. 75579 (1991)] c. If the question is one of collation or advancement [Coca v. Borromeo, G.R. No. L-27082 (1978)] d. When the estate consists of only one property [Portugal v. Portugal-Beltran, G.R. No. 155555 (2005)] The court first taking cognizance of the settlement of estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts [Sec. 1, Rule 73] Jurisdictional facts Jurisdictional facts refer to the fact of death of the decedent, his residence at the time of his death in the province where the court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province [Palaganas v. Palaganas, G.R. No. 169144 (2011)] Where estate is settled upon dissolution of marriage Sec. 2, Rule 73 provides that when the marriage is dissolved by the death of the husband or the wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or the intestate proceedings of the deceased spouse, and if both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. In these settlement proceedings, the probate court has the authority to determine if the property is conjugal or community in nature, for purposes of liquidation [Agtarap v. Agtarap, G.R. Nos. 177099 and 177192 (2011)] Presumption of death Sec. 4, Rule 73 is merely one of evidence which permits the court to presume that a person is dead after the fact that such person had been unheard from for the periods fixed in the Civil Code. This presumption may arise and

Page 270 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an action or special proceeding [Valdez v. People, G.R. No. 180863 (2009), citing In re: Szatraw, G.R. No. L-1780 (1948)]

4. Powers and Duties Probate Court

of

a

It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by intervening in the administration thereof in order to remedy or repair any injury that may be done thereto [Dariano v. Fernandez Fidalgo, G.R. No. L-4918 (1909)] Ancillary powers of a probate court a. Issue warrants and processes to compel attendance of a witness and to carry into effect their orders and judgments b. Issue warrant for apprehension and imprisonment of a person who refuses to perform an order or judgment c. All other powers granted to them by law [Sec. 3, Rule 73].

SUMMARY SETTLEMENT OF ESTATES B.

General rule: The estate of the decedent should be judicially administered through an administrator or executor. Exceptions: Law allows heirs to resort to 1. Extrajudicial settlement of estate (decedent died intestate and left no debts) [Sec. 1, Rule 74]

REMEDIAL LAW

2. Summary settlement of estate (for estates of small value, when gross estate does not exceed P10,000) [Sec. 2, Rule 74] Recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons [Sps. Villafria v. Plazo, G.R. No. 187524 (2015)]

1. Extrajudicial Settlement by Agreement Between Heirs; When Allowed Requisites a. Decedent died intestate b. Left no debts c. Heirs are all of age, or minors are represented by their legal or judicial representatives, and d. ALL heirs agree [Sec. 1, Rule 74] Modes a. If sole heir – Affidavit of Self-adjudication (of the whole estate) b. If more than one heir – 1. Deed of Extrajudicial Settlement is resorted to if there is no disagreement among the heirs 2. If there is a disagreement, then they may resort to an action for partition (judicial) Note: Both the Affidavit and the Deed are public instruments. [Sec. 1, Rule 74] The general rule is that when a person dies intestate, or, if testate, failed to name an executor in his will or the executor so named is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules, then the decedent’s estate shall be judicially

Page 271 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

administered and the competent court shall appoint a qualified administrator in the order established in Sec. 6, Rule 78. An exception to this rule is found in Sec. 1, Rule 74 wherein the heirs of a decedent, who left no will and no debts due from his estate, may divide the estate either extrajudicially or in an ordinary action for partition without submitting the same for judicial administration nor applying for the appointment of an administrator by the court [Spouses Villafria v. Plazo, G.R. No. 187524 (2015)] Where, in the extrajudicial settlement of the estate, heirs were excluded and minor heirs were not properly represented, the settlement was not valid and binding upon them [Neri v. Heirs of Spouses Yusop, G.R. No. 194366 (2012)] Requirement of public instrument No law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec. 1, Rule 74 that a partition be put in a public document and registered, has for its purpose the protection of creditors and the heirs themselves against tardy claims. The requirement of Art. 1358 of the Civil Code is only for convenience, noncompliance with which does not affect the validity or enforceability of the acts of the parties as among themselves [Kilario v. CA, G.R. No. 134329 (2000)] Note: The last sentence of the cited doctrine from Kilario implies that non-compliance with Sec. 1, Rule 74 will be binding only as to the parties to the partition but not to non-parties (e.g. creditors who did not know of the partition).

Filing of public instrument/affidavit with the proper Registry of Deeds and posting of a bond if the estate has personal property (bond equivalent to amount of personal property) ↓ Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct The procedure outlined in Sec. 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate [Benatiro v. Heirs of Cuyos, G.R. No. 161220 (2008), citing Cua v. Vargas, G.R. No. 156536 (2006)] Validity of compromise agreement Such is valid, binding upon the parties as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement [Borja v. Vda. De Borja, G.R. No. L-28040 (1972)]

2. Two-Year Prescriptive Period Heirs or other persons deprived of lawful participation in the estate may compel judicial settlement of estate within 2 years from settlement and distribution [Sec. 1, Rule 74]

Procedure Division of estate in a public instrument or affidavit of adjudication ↓

A lien shall be constituted on the real property of the estate and together with the bond, it shall be liable to creditors, heirs or other persons for a full period of 2 years after such distribution.

Page 272 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

Such lien will not be cancelled before the lapse of two years even if a distributee offers to post bond to answer for contingent claims [Rebong v. Ibanez, G.R. No. L-1578 (1947)] Disputable presumption of no debt It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent [Sec. 1, Rule 74]

3. Affidavit of Self-Adjudication by Sole Heir An Affidavit of Self-Adjudication is only proper when the affiant is the sole heir of the decedent. This is clear from the second sentence of Sec. 1, Rule 74 [Rebusquillo v. Spouses Galvez, G.R. No. 204029 (2014)]

4. Summary Settlement of Estates of Small Value; When Allowed When allowed Whenever the gross value of estate of the decedent does not exceed P10,000 Procedural requirements a. Petition by an interested person alleging fact that estate does exceed P10,000 b. Notice 1. Published once a week for 3 consecutive weeks 2. In a newspaper of general circulation in the province c. Other notice to interested persons as the court may direct d. Hearing 1. Held not less than 1 month nor more than 3 months 2. Counted from the date of the last publication of notice [Sec. 2, Rule 74] e. Bond in an amount to be fixed by court if personal property is to be distributed [Sec. 3, Rule 74]

Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay – a. to grant, if proper, allowance of the will, if there be any b. to determine who are persons legally entitled to participate in the estate, and c. to apportion and divide the estate among them after the payment of such debts of the estate The persons legally entitled to participate in the estate, a. in their own right, if of lawful age, or b. if otherwise, by their guardians or trustees legally appointed and qualified, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively [Sec. 2, Rule 74] Procedure Death of the decedent ↓ Petition for summary settlement with allegation that the gross value of the estate does not exceed P10,000 ↓ Publication of notice once a week for 3 consecutive weeks in a newspaper of general circulation in the province ↓ Giving of such other notice to interested persons as the court may direct ↓ Hearing held not less than 1 month nor more than 3 months from the date of the last publication of notice

Page 273 of 525



U.P. LAW BOC

SPECIAL PROCEEDINGS

Court to proceed summarily, without appointing an executor/administrator, and to a. Grant allowance of will, if any (2) Determine persons entitled to estate (3) Pay debts of estate which are due

↓ Filing of bond when required by the court [Sec. 3, Rule 74] ↓ Partition of estate

Extrajudicial settlement

Summary settlement

Court intervention not required

Summary judicial adjudication needed

Decedent left no will (allowed only in intestate succession)

Decedent may or may not have left a will (died intestate/testate)

Decedent left no debts

Decedent may have left debts

Heirs are all of age or minors are represented

No such requirement

Instituted only at the instance and by agreement of all heirs

May be instituted by any interested party even by a creditor without consent of the heirs

Value of the estate is immaterial

Gross value of the estate must not exceed P10,000

Bond filed with the Register of Deeds in an amount equal to the value of the personal property of the estate

REMEDIAL LAW

Bond filed with and amount to be determined by the court

Where the contention that the decedent’s estate is less than P5,000 rests on a controversial basis and no evidence was adduced to ascertain the actual value of the estate, the probate court is not precluded from proceeding with the intestate proceedings [Intestate Estate of Sebial v. Sebial, G.R. No. L-23419 (1975)]

5. Remedies of Aggrieved Parties after Extrajudicial Settlement of Estate Within reglementary period of TWO YEARS a. Claim on the bond for personal properties [Sec. 4, Rule 74] b. Claim on lien on real property, notwithstanding any transfers of real property that may have been made [Sec. 4, Rule 74] c. Judicial settlement of estate [Sec. 4, Rule 74] d. Action to annul settlement (fraud [4 years] or implied trust [10 years]) When applicable If it shall appear at any time within 2 years after the settlement and distribution of an estate that an heir or other person a. has been unduly deprived of his lawful participation in the estate 1. He shall have a right to compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation. 2. If annulment on the ground of fraud, an action for reconveyance based on an implied or constructive trust must be filed within 10 years from accrual of the

Page 274 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

cause of action [Amerol v. Bagumbaran, G.R. No. L-33261 (1987); Zuniga-Santos v. Santos-Gran, G.R. No. 197380 (2014)] b. has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing c. settle the amount of such debts or lawful participation, and d. may issue execution against the bond or against the real estate belonging to the deceased, or both [Sec. 4, Rule 74] When not applicable a. To persons who have participated or taken part or had notice of the extrajudicial partition b. When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) The buyer of real property the title of which contains an annotation pursuant to Sec. 4, Rule 74 cannot be considered innocent purchasers for value [David v. Malay, G.R. No. 132644 (1999)]. The foregoing rule clearly covers transfers of real property to any person, as long as the deprived heir or creditor vindicates his rights within two years from the date of the settlement and distribution of estate. The effects of this provision are not limited to the heirs or original distributees of the estate properties, but shall affect any transferee of the properties [Spouses Domingo v. Roces, G.R. No. 147468 (2003)]

REMEDIAL LAW

c. outside Philippines, he may present his claim within 1 year after such disability is removed [Sec. 5, Rule 74]. Within the reglementary period, the judge of a probate court has the power to reopen estate proceedings even after the issuance of an order approving a project of partition and closing the proceedings. Rather than requiring an allegedly preterited party to air his grievances in a separate and independent proceeding, he may, within the reglementary period, claim his relief sought in the same case by reopening the same even after a project of partition and final accounting had been approved. [Jerez v. Nietes, G.R. No. L-26876 (1969)] Even if the original motion did not afford legal standing to the three legitimate minor children, under Sec. 5, Rule 74, such motion may be lodged with the court within one year after the minors have reached majority [In Re: Francisco v. Carreon, G.R. No. L-5033 (1954)] OTHER REMEDIES a. Action for reconveyance of real property – based on an implied trust, reckoned 10 years from issuance of title [Marquez v. CA, G.R. No. 125715 (1998)] b. Rescission – in case of preterition of compulsory heir in partition tainted with bad faith [Art. 1104, NCC] c. Petition for relief – on ground of fraud, accident, mistake, excusable negligence. Within 60 days after petitioner learns of judgment or final order, or other proceedings to be set aside, and not more than 6 months after such judgment or order is entered or taken [Rule 38]

Additional period for claim of minor or incapacitated person If on the date of the expiration of the period of 2 years after the settlement or distribution of an estate, the person authorized to file a claim is a. a minor or mentally incapacitated b. in prison, or Page 275 of 525

U.P. LAW BOC

C.

SPECIAL PROCEEDINGS

PRODUCTION AND PROBATE OF WILL

1. Nature of Proceedings

Probate

a. In rem proceeding b. Mandatory – no will shall pass either real or personal property unless it is proved and allowed in the proper court [Sec. 1, Rule 75] c. Conclusive as to its due execution, but subject to the right of appeal [Sec. 1, Rule 75] d. Right to ask for probate does not prescribe [Guevara v. Guevara, G.R. No. L-5405 (1956)] e. Doctrine of estoppel does not apply [Fernandez v. Dimagiba, G.R. No. L23638 (1967); Testate Estate of Abada v. Abaja, G.R. No. 147145 (2005)] Before any will can have force or validity, it must be probated. Until admitted to probate, a will has no effect whatsoever and no right can be claimed thereunder [Sps. Pascual v. CA, G.R. No. 115925 (2003)] The presentation of the will for probate is mandatory and is a matter of public policy. Unless the will is probated, the right of a person to dispose of his property may be rendered nugatory [Maninang v. CA, G.R. No. L-57848 (1982); Dy Yieng Seangio, et al. v. Reyes, G.R. Nos. 147371-72 (2006)] Duty of custodian and executor to deliver the will Within 20 days after he knows of the testator’s death, the person who has custody of the will shall deliver the will to the court having jurisdiction, or to the executor named in the will [Sec. 2, Rule 75]

REMEDIAL LAW

In seeking for the production of the original holographic will, the remedy of mandamus cannot be availed of because there lies another plain, speedy and adequate remedy in the ordinary course of law. The ROC provides for the institution of probate proceedings for the allowance of the will, whether it be in the possession of the petitioner or not (Sec. 1, Rule 76). [Uy Kiao Eng v. Lee, G.R. No.176831 (2010)] The person named executor shall present the will to the court having jurisdiction, unless the will has reached it in any other manner, and shall signify in writing his acceptance/refusal of the trust a. within 20 days after he knows of the death of the testator, or b. within 20 days after he knows that he is named executor if he obtained such knowledge after the testator’s death [Sec. 3, Rule 75]. Person retaining the will may be committed to prison until the will is delivered if: a. He has custody of the will b. There is a court order directing him to deliver the will, and c. He neglects without reasonable cause to deliver the same [Sec. 5, Rule 75]. So much is the concern of the law for the indispensability of probating a will that Sec. 4, Rule 75 penalizes with a fine not exceeding P2,000 the failure of the custodian of a will to deliver the same to the court or to the executor named therein, as also the failure of the executor to present the will to the proper court for probate; and under Section of the same rule, such custodian may be detained by order of the court until he makes the required delivery of the will [Vda. De Precilla v. Narciso, G.R. No. L-27200 (1972); Uy Kiao Eng, G.R. No.176831 (2010)]

Page 276 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

2. Who May Petition For Probate; Persons Entitled To Notice The executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed [Sections 1 and 2, Rule 76; Palaganas v. Palaganas, G.R. No. 169144 (2011)] A will may be probated a. Before the testator’s death – By testator himself (ante-mortem probate) b. After the testator’s death – By executor, devisee, or legatee named in the will or any person interested in the estate [Sec. 1, Rule 76] Meaning of interest in estate An interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor [Sumilang v. Ramagosa, G.R. No. L23135 (1967)] Persons entitled to notice a. Known heirs, legatees and devisees resident in Philippines b. Named executor if he is not petitioner, and c. Named co-executors not petitioning if their place of residence is known [Sec. 4, Rule 76] Note: If the testator himself asks for probate of his own will, notice shall be sent only to compulsory heirs [Sec. 4, Rule 76; Nittscher v. Nittscher, G.R. No. 160530 (2007)] Notice is required to be given to known heirs, legatees, and devisees of the testator. In the will, the respondent was instituted as the sole heir of the decedent. [Alaban v. CA, G.R. No. 156021 (2005)]

REMEDIAL LAW

Periods to give notice a. Personal service – At least 10 days before hearing b. By mail – at least 20 days before hearing [Sec. 4, Rule 76]

ALLOWANCE OR DISALLOWANCE OF WILL D.

Probate or allowance of wills is the act of proving in court a document purporting to be the last will and testament of the deceased for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law [Festin 40, 2011 Ed.] General rule: A probate proceeding only looks at extrinsic validity Exception: The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue [Nepomuceno v. CA, G.R. No. L-62952 (1985)] Extrinsic validity - due execution of the will which means: a. That the will was executed strictly in accordance with the formalities required by law b. That the testator was of sound and disposing mind when the will was executed c. That there was no vitiation of consent through duress, fear or threats d. That it was not procured by undue and improper pressure or influence on part of beneficiary or other person for his benefit e. That the testator’s signature is genuine (not procured through fraud nor trick), and that the testator intended that what he executed was his last will and testament) [Sec. 9, Rule 76]

Page 277 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

The very existence of the will is in itself prima facie proof that the supposed testatrix has willed that her estate be distributed in the manner provided for in the will and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby. What is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that that will was or was not duly executed in the manner required by law [Baltazar v. Laxa, G.R. No. 174489 (2012)]

1. Contents of petition allowance of will

for

a. Jurisdictional facts – refer to the fact of death of the decedent, his residence at the time of his death in the province where the court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province [Palaganas v. Palaganas, G.R. No. 169144 (2011)] b. Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent c. Probable value and character of the property of the estate d. Name of the person for whom letters are prayed e. If the will has not been delivered to the court, the name of the person having custody of it [Sec. 2, Rule 76] Effects of defect in petition No defect in petition shall render void the allowance of will, or the issuance of letters testamentary or of administration with the will annexed [Sec. 2, Rule 76] Jurisdiction, how acquired Publication of the notice of hearing brings in the whole world as a party in the case for probate and vests the court with jurisdiction to hear and

REMEDIAL LAW

decide it. Thus, parties not mentioned in the petition for probate eventually became parties as a consequence of publication [Alaban v. CA, G.R. No. 156021 (2005)] The notice must be published 3 weeks successively, previous to the time set for hearing, in a newspaper of general circulation in the province [Sec. 3, Rule 76] EVIDENCE REQUIRED IN SUPPORT OF A WILL Uncontested will a. Notarial Will – Testimony of at least one subscribing witness that the will was executed as required by law [Sec. 5, Rule 76] 1. If all subscribing witnesses reside outside of the province but their deposition can be taken elsewhere, the court may on motion order that it be taken and may authorize making of photocopy of the will to be presented to witness [Sec. 7, Rule 76] 2. If all subscribing witnesses are dead, insane or do not reside in Philippines, other witnesses not subscribing may be presented [Sec. 8, Rule 76] b. Holographic wills 1. At least one witness who knows the handwriting and signature of the testator who explicitly declares that the will and signature are in the handwriting of the testator, or 2. In the absence of such competent witness and the court deems it necessary, expert testimony may be resorted to [Sec. 5, Rule 76] If the testator himself petitions for probate of holographic will and it is not contested. The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of genuineness and due execution thereof [Sec. 12, Rule 76]

Page 278 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

It is not mandatory that witnesses be presented first before expert testimony maybe resorted to unlike in notarial wills wherein attesting witnesses must first be presented [Azaola v. Singson, G.R. No. L-14003 (1960)] Contested Will Anyone appearing to contest the will must state in writing his grounds for opposing its allowance and serve a copy to petitioner and other interested parties [Sec. 10, Rule 76] a. Notarial Will 1. All subscribing witness and the notary if present in Philippines and not insane must be presented 2. If dead, insane or absent – said fact must be satisfactorily shown in court 3. If present in Philippines but outside the province – deposition must be taken [Sec. 11, Rule 76; Baltazar v. Laxa, G.R. No. 174489 (2012)]

Can testimony of the subscribing witnesses be dispensed with in a contested will? YES. If any or all of the subscribing witness: 1. testify against the due execution of the will, or 2. do not remember having attested to it, or 3. are otherwise of doubtful credibility The court may allow the will if it is satisfied from testimony of other witnesses and all evidence presented that the will was executed and attested in the manner required by law [Sec.11, Rule 76] a. Holographic wills 1. At least three witness who knows the handwriting and signature of the testator who explicitly declares that the will and signature are in the handwriting of the testator 2. In the absence of such competent witness and the court deems it necessary, expert testimony may be resorted to [Sec. 11, Rule 76]

REMEDIAL LAW

If the testator himself petitions for probate of holographic will and it is contested, the contestant has the burden of disproving genuineness. Testator may present additional proof to rebut contestant’s evidence [Sec. 12, Rule 76] Lost Will a. Notarial Wills – even if lost may be proved through the following facts 1. Execution and validity of the will 2. Its existence at the time of testator’s death or that it has been fraudulently or accidentally destroyed during testator’s lifetime without his knowledge, and 3. Provisions of the will clearly and distinctly proved by at least two credible witnesses If lost will is proved, its provisions must be distinctly stated and certified by the judge, under seal of court, and the certificate must be filed and recorded as other wills are filed and recorded [Sec. 6, Rule 76] b. Holographic Wills

General rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will Exception: A photostatic copy or xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator [Rodelas v. Aranza, G.R. No. L-58509 (1982)]

2. Grounds for Disallowing a Will The will shall be disallowed if: a. Not executed and attested as required by law

Page 279 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

b. Testator was insane, or otherwise mentally incapable to make a will, at the time of its execution c. Executed under duress, or the influence of fear, or threats d. Procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit, or e. Signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto [Sec. 9, Rule 76 cf. Art. 839, CC] The list is exclusive. Thus, in a petition to admit a holographic will to probate the only issue to be resolved are: (1) whether the instrument submitted is, indeed, the decedent’s last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and (4) whether the execution of the will and its signing were the voluntary acts of the descendants [Spouses Ajero v. CA, G.R. No. 106720 (1994)]

3. Reprobate; Requisites before Will Proved Outside Allowed in the Philippines; Effects of Probate Effect of probate of will Decree of probate is conclusive as to its due execution, subject to the right of appeal [Sec. 1, Rule 75] If a decision admitting a will to probate becomes final, there can no longer be any challenge to its due execution and authenticity. Thus, a criminal action will not lie against an alleged forger of a will which had been duly admitted to probate by a court of competent jurisdiction [Mercado v. Santos, G.R. No. 45629 (1938)]

REMEDIAL LAW

Order allowing or disallowing a will may be the subject of an appeal [Sec. 1, Rule 109] Reprobate Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper court in Philippines [Sec. 1, Rule 77] Requisites before a Will Proved Abroad Would be Allowed in Philippines a. Duly authenticated copy of will b. Duly authenticated order or decree of its allowance in foreign country, and c. Petition for allowance in Philippines filed by the executor or other person interested [Sec. 2, Rule 77] The court having jurisdiction shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance [Sec. 2, Rule 77] Evidence necessary for reprobate a. due execution of the will in accordance with the foreign laws b. testator has his domicile in the foreign country and not in Philippines c. will has been admitted to probate in such country d. fact that the foreign tribunal is a probate court, and e. laws of a foreign country on procedure and allowance of wills [Vda. De Perez v. Tolete, G.R. No. 76714 (1994)] Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution. A foreign will can be given legal effect in our jurisdiction. [Palaganas v. Palaganas, G.R. No. 169144 (2011)]

Page 280 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

Effect of Reprobate a. Will shall have the same effect as if originally proved and allowed in Philippine court [Sec. 3, Rule 77] b. The grant of letters testamentary or of administration shall extend to all estate of the testator in Philippines c. After payment of just debts and expenses of administration, estate shall be disposed of according to the will d. Residue disposed of in accordance with law [Sec. 4, Rule 77] Questions as to title to property General rule: The probate court, whether in a testate or intestate proceeding, can only pass upon questions of title provisionally. The reason is that the probate court’s limited jurisdiction and the principle that questions of title or ownership, which result in exclusion or inclusion from the inventory of the property, can only be settled in a separate action [Aranas v. Mercado, G.R. No. 156407 (2014), citing De Leon v. CA, G.R. 128781 (2002); Jimenez v. CA, G.R. No. 75773 (1990); Agtarap v. Agtarap, G.R. Nos. 177099 and 177192 (2011)] Exception: If the interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, the probate court is competent to decide the question of ownership [Cora v. Vda. De Pangilinan, G.R. Nos. L-27082 and L-29545 (1978); Agtarap v. Agtarap, G.R. Nos. 177099 and 177192 (2011)]

E. LETTERS TESTAMENTARY AND OF ADMINISTRATION 1. When and to Whom Letters of Administration are Granted Who may administer the estate of a deceased person: a. Executor b. Administrator Executor

Person named expressly by deceased person in his will to administer, settle, and liquidate estate, and subsequently appointed by court

Has duty to present the will to court within 20 days after (a) he learns of the death of testator or (b) after he knew he was appointed as executor (if he obtained such knowledge after death of testator), unless will has reached the court in any other manner The testator may provide that he may serve without a bond but the court shall direct him to post a

Page 281 of 525

Administrator Appointed when a. Testator did not appoint an executor b. The appointment was refused c. The executor is incompetent to serve d. The executor failed to file a bond when required e. The will was disallowed f. No will (intestate succession)

No such duty

Required to file bond unless exempted by law

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

bond conditioned only to pay debts

[Republic v. Marcos II, G.R. Nos. 130371 and 130855 (2009)]

The court may require a further bond for sufficient cause Compensation provided in the will controls, unless renounced

The courts may delve into the question of the suitableness and fitness of an administrator, notwithstanding the fact that both are compulsory heirs, and may in fact appoint one over the other even if both possess equal status in the order of preference [Marcelo Investment and Management Corp. v. Marcelo, Jr., G.R. No. 209651 (2014)]

First part of Sec. 7, Rule 85 applies

If no provision for compensation, Sec. 7 of Rule 85 applies

Any competent person may serve as an executor or administrator. Executor of an executor shall not, as such, administer the estate of first testator [Sec. 2, Rule 78] Married woman may serve as executor or administrator and a marriage of a single woman shall not affect her authority so to serve under a previous appointment [Sec. 3, Rule 78] Who are incompetent to serve as executor or administrator a. Minor b. Non-resident c. One who, in the opinion of the court, is unfit to exercise the duties of the trust by reason of 1. Drunkenness 2. Improvidence 3. Want of understanding 4. Want of integrity, or 5. Conviction of an offense involving moral turpitude [Sec. 1, Rule 78] To be disqualified to serve as executor or administrator under Sec. 1(e), Rule 78, it must be shown that the conviction must be for an offense involving moral turpitude. Thus, one’s failure to file a return as required by the NIRC cannot be a basis for disqualification, it not being a crime involving moral turpitude

Other grounds in jurisprudence a. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has an adverse interest of some kind or hostility to those immediately interested in the estate. [Lim v. Diaz-Millarez, G.R. No. L-17633 (1966)] b. The administrator should be indifferent between the estate and claimants of the property, except to preserve it for due administration, and he should be removed when his interests conflict with such right and duty. [Medina v. CA, G.R. No. L-34760 (1973)] The regular administrator is charged with the task of accomplishing and terminating the administration of the estate with the utmost reasonable dispatch, with a view to an early distribution of the net estate among the heirs and persons entitled thereto. [Medina v. CA, G.R. No. L-34760 (1973)] When are letters testamentary or of administration granted Letters testamentary – an authority issued to an executor named in the will to administer the estate. It is issued once the will has been proved and allowed, and if the executor named is competent, accepts the trust and gives bond [Sec. 4, Rule 78] Letters of administration – authority issued by court to a competent person to administer the estate if a. No executor is named in will b. Person dies intestate [Sec. 6, Rule 78] c. The will is void or is not admitted to probate

Page 282 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Letters of administration with the will annexed - authority issued by court to a competent person to administer the estate if the executor named in the will: a. refuses to accept the trust b. is incompetent c. fails to give the required bond [Sec. 6, Rule 78]

2. Order of Preference Order of preference in the grant of letters of administration a. Surviving spouse, or next of kin, or both, or to such person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve b. If those enumerated above be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, one or more of the principal creditors, if competent and willing to serve c. If there is no such creditor, such other person as the court may select [Sec. 6, Rule 78] Next of kin are those entitled by law to receive the decedent’s properties [Ventura v. Ventura, G.R. No. L-26306 (1988)] The probate court may address the issue of filiation especially when the applicant for letters of administration claims to be the decedent’s next of kin or heir [Angeles v. Maglaya, G.R. No. 153798 (2005)] The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not appealable [Tan v. Gedorio, G.R. No. 166520 (2008)]

REMEDIAL LAW

Reason for order of preference Those who would reap the benefit 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 highest interest and most influential motive to administer the estate correctly [Gonzalez v. Aguinaldo, et al., G.R. No. 74769 (1990)] In the appointment of the administrator of the estate of the deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed as administrator. [Suntay III v. Cojuangco-Suntay, G.R. No. 183053 (2012)] Mere failure to apply for letters of administration does not remove preference [1 ALR 1247] Note: The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. The selection of an administrator lies in the sound discretion of the trial court. [Aguinaldo-Suntay v. Cojuangco-Suntay, G.R. No.183053 (2010)] 30-day period may be waived Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters, as an alternative, “may be granted to one or more of the principal creditors” [Gabriel v. CA, G.R. No. 101512 (1992)] Co-administrators may be appointed [Matute v. CA, G.R. No. L-26751 (1969)] In the appointment of a co-administrator, the size of, and benefits to the estate may be considered by the court. Thus, where the estate is large or, from any cause, an intricate or perplexing one to settle, the appointment of co-administrators may be sanctioned by law [Uy v. CA, G.R. No. 167979 (2006)]

Page 283 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

3. Opposition to Issuance of Letters Testamentary; Simultaneous Filing of Petition for Administration

c. Probable value and character of the estate, and d. Name of person for whom letters is prayed [Sec. 2, Rule 79; Palaganas v. Palaganas, G.R. No. 169144 (2011)]

Who may oppose Any person interested in a will [Sec. 1, Rule 79]

While recitals in the death certificate of the decedent can be considered proof of a decedent’s residence at the time of his death, the contents thereof, however, are not binding on the courts. [Garcia-Quiazon v. Belen, G.R. No. 189121 (2013)]

Meaning of interested person One who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor; thus, interest must be material and direct, not merely indirect or contingent. [Maloles II v. Philips, G.R Nos. 129505 and 133359 (2000); Saguinsin v. Lindayag, G.R. No. L-17759 (1962)] A legal heir who has validly assigned his hereditary rights before the institution of settlement proceedings is no longer an “interested party.” He has no more interest in the decedent’s estate. [Duran v. Duran, G.R. No. L-23372 (1967)] Grounds a. Incompetency of the person/s for whom letters are prayed, or b. Contestant’s own right to the administration (ex. preferential right under Sec. 6, Rule 78) [Sec. 4, Rule 79] Form required Grounds for opposition must be stated in writing; court shall then hear and pass upon sufficiency of such grounds. [Sec. 1, Rule 79] Contents of petition for letters of administration a. Jurisdictional facts 1. Death of testator 2. Residence at time of death in the province where probate court is sitting, or 3. If he is an inhabitant of foreign country, his having left his estate in such province [Diez v. Serra, G.R. No. L27650 (1927)] b. Names, ages and residences of heirs, and names and residences of creditors

Defect in petition would not render void the issuance of letters of administration [Sec. 2, Rule 79] Publication and notice Notice of hearing must be given in the manner provided in Sec. 3 and 4, Rule 76, by: a. Publication, and b. Personal service or by mail to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate [Sec. 3, Rule 79] Where no notice as required by Sec. 3, Rule 79 has been given to persons believed to have an interest in the estate of the deceased person, the proceedings for the settlement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law [De Guzman v. Angeles, G.R. No. 78590 (1988)] Simultaneous filing of opposition and petition An interested person opposing the petition for administration may pray in his opposition that letters be issued to himself, or to any competent person/s named in it. [Sec. 4, Rule 79] Order appointing the regular administrator is appealable [Sec. 1, Rule 109] When letters of administration are issued If proven at a hearing that

Page 284 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

a. Notice has been given as required, and b. Decedent left no will, or there is no competent and willing executor. [Sec. 5, Rule 79] One who is named as executor in the will or one who enjoys preference under the rules is not automatically entitled to the issuance of letters testamentary/of administration. A hearing has to be held in order to ascertain her fitness to act as executor/administrator. [Baluyut v. Cruz Paño, G.R. No. L-42088 (1976)] Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right, if such persons fail to appear when notified and claim the issuance of letters to themselves. [Sec. 6, Rule 79]

4. Powers and Duties of Executors and Administrators; Restrictions on the Powers Posting of bond Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond in such sum as the court directs. [Sec. 1, Rule 81] Purpose The bond posted by the administrators and executors is intended as an indemnity to the creditors, the heirs and the estate How liability on the bond is enforced By motion or in a separate action [Festin 56, 2011 Ed.] Conditions on the bond a. Make and return to the court, within 3 months, a true and complete inventory of all goods, chattel, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him

REMEDIAL LAW

b. Administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattel, rights, credits, and estate of the deceased which shall come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, charges on the same, or dividends as decreed by court c. Render a true and just account of his administration within 1 year and when required by court, and d. Perform all orders of the court [Sec. 1, Rule 81] If the testator provides in his will that the executor shall serve without bond, or with only his individual bond, the court may still allow him to file a bond conditioned only to pay debts of the testator. But the court may require of the executor a further bond in case of change in his circumstances or for other sufficient cause. [Sec. 2, Rule 81] Bonds of joint executors and administrators The court may take a separate bond from each executor or administrator, or a joint bond from all. [Sec. 3, Rule 81]

a. General Powers and Duties of Executors and Administrators Have access to partnership books and property at all times 1. Have access to, and may examine and take copies of, books and papers relating to the partnership business 2. Examine and make invoices of the property belonging to such partnership 3. Request the surviving partner/s to exhibit to him all such books, papers, and property in their hands or control [Sec. 1, Rule 84] Failure to freely permit the exercise of these rights, and to exhibit the books, papers, and property may subject any partner for contempt Keep buildings in tenantable repair 1. Maintain the houses and other structures and fences belonging to the estate, and

Page 285 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

2. Deliver the same in such repair to the heirs or devisees when directed so to do by the court [Sec. 2, Rule 84] When a property is part of an estate and subject to intestate proceedings before the courts, the administrator may only deliver properties of the estate to the heirs upon order of the court. Verily, once an action for the settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court. And not even the administrator may take possession of any property that is part of the estate without prior authority of the court. [Silverio, Jr. v. CA, G.R. No. 178933 (2009)] Right to possession and management of the real and personal properties 1. So long as necessary for the payment of the debts and the expenses of administration [Sec. 3, Rule 84] 2. Administrator cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administrator [Caro v. CA, G.R. No. L-46001 (1982)] When the estate of a deceased is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the probate court. [Estate of Olave v. Reyes, G.R. No. L-29407 (1983)]

b. Restrictions on Powers of Executors and Administrators Executor or administrator chargeable with all estate and income Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory, with: 1. Interest 2. Profit 3. Income of such estate and 4. Proceeds of as much of the estate as is sold by him, at the price at which it was sold

REMEDIAL LAW

[Sec. 1, Rule 85] Prohibited from profiting by increase or suffering loss by decrease in value 1. No executor/administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate 2. He must account for the excess (when sold for more than appraisement) 3. If sold for less, he is not responsible for loss, if sale justly made 4. If settled claim for less than nominal value, he is entitled to charge in his account only the amount actually paid on the settlement [Sec. 2, Rule 85] 5. Not accountable for debts due the deceased which remain uncollected without his fault [Sec. 3, Rule 85] Accountable for income from realty used by him If executor/administrator uses/occupies any part of real estate himself, he shall account for it 1. as may be agreed upon between him and the parties interested, or 2. as may be adjusted by the court with the parties’ assent. If the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final. [Sec. 4, Rule 85] Accountable if he neglects or delays to raise or pay money Damages sustained are considered waste, and may be charged and allowed against him in his account, and s/he is liable on his/her bond if s/he 1. Neglects a. or unreasonably delays to raise money, by collecting debts or selling real or personal estate of the deceased, or b. to pay over money in his hands, and 2. The value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss [Sec. 5, Rule 85]

Page 286 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Only necessary expenses shall be allowed 1. Amount paid by executor/administrator for costs awarded against him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith. [Sec. 6, Rule 85] 2. When the executor is an attorney, he shall not charge against estate any professional fees for legal services rendered. [Sec. 7, Rule 85] Necessary expenses of administration Such expenses as are entailed for the preservation and productivity of the estate and for its management for the purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto [Hermanos v. Abada, G.R. No. 13910 (1919)] Not considered as necessary expenses 1. Expenses incurred by heir as occupant of family home without paying rent (ex. salary of house helper, light, water bills, gas, etc. [De Guzman v. De Guzman-Carillo, G.R. No. L-29276 (1978)] 2. Expenses incurred by an executor or administrator to produce a bond [Sison v. Teodoro, G.R. No. L-9271 (1957)] 3. The administration bond should not be considered as part of the necessary expenses, not being included among the acts constituting the care, management, and settlement of the estate [Ocampo v. Ocampo, G.R. No. 187879 (2010)] Attorney’s fees When an attorney assists the administrator or executor personally in the execution of his trust, the liability for the payment of attorney’s fees rests on the executor or administrator. However, if the fees paid are beneficial to the estate and reasonable, he is entitled to reimbursement from the estate. [Uy Tioco v. Imperial, G.R. No. L-29414 (1928); Quasha Ancheta Peña and Nolasco Law Office v. LCN Construction Corp., G.R. No. 174873 (2008)]

REMEDIAL LAW

Allowance to surviving spouse and children The widow and minor or incapacitated children, during the settlement of the estate, shall receive, under the direction of the court, such allowance as are provided by law. [Sec. 3, Rule 83] It is the court hearing the settlement of the estate, not the guardianship court, that should execute the order for the payment of the widow’s allowance considering that the properties of the estate are within its jurisdiction, to the exclusion of all the other courts. [Heirs of Sy Bang v. Sy, G.R. Nos. 114217 and 150797 (2009)] Allowances for support under Section 3, rule 83 should not be limited to the “minor or incapacitated” children of the deceased. Article 188 of the Civil Code provides that during the liquidation of the conjugal partnership, the deceased’s legitimate spouse and children, regardless of their age, civil status or gainful employment, are entitled to provisional support from the funds of the estate. The law clearly limits the allowance to “widow and children” and does not extend to grandchildren, regardless of their minority or incapacity [Estate of Ruiz v. CA, G.R. No. 118671 (1996)] Executor or administrator inventory and render account

to

make

Inventory Rendered within 3 months of appointment and includes an appraisal of all real and personal estate of the deceased which has come into his possession or knowledge [Sec. 1, Rule 83] The usage of the word “all” in Sec. 1, Rule 83 demands the inclusion of all the real and personal properties of the decedent in the inventory. However, the word “all” is qualified by the phrase “which has come into his possession or knowledge,” which signifies that the properties must be known to the administrator to belong to the decedent or are in her possession as the administrator. Sec. 1 allows no exception, for the phrase “true inventory” implies that no properties appearing to belong to the decedent can be excluded from

Page 287 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

the inventory, regardless of their being in the possession of another person or entity. [Aranas v. Mercado, G.R. No. 156407 (2014)]

5. Appointment Administrator

Not included a. Wearing apparel of surviving husband or wife and minor children b. Marriage bed and bedding, and c. Such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased [Sec. 2, Rule 83]

A special administrator is an officer of the court who is subject to its supervision and control, expected to work for the best interest of the entire estate, with a view to its smooth administration and speedy settlement. [Ocampo v. Ocampo, G.R. No. 187879 (2010)]

Accounting mandatory Within 1 year from time of receiving letters testamentary or of administration unless court otherwise directs [Sec. 8, Rule 85] He shall render such further accounts as court may require until the estate is wholly settled [Sec. 8, Rule 85] Sec. 8, Rule 85 requires the administrator to render an account of his administration within 1 year from receipt of the letters testamentary or of administration [Hilado v. CA, G.R. No. 164108 (2009)] The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator [Joson v. Joson, G.R. No. L-9686 (1961)] Examination on oath by court As to the correctness of his account before the same is allowed Except: a. when no objection is made to the allowance of the account, and b. its correctness is satisfactorily established by competent proof. [Sec. 9, Rule 85] The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account. [Sec. 9, Rule 85]

of

Special

The probate court is justified in appointing joint special administrators pending determination of the person or persons to whom letters of administration may be issued, inasmuch as there was a disagreement as to who should be appointed. [Ocampo v. Ocampo, G.R. No. 187879 (2010); Heirs of Castillo v. LacuataGabriel, G.R. No. 162934 (2005)] To reiterate, the role of a special administrator is to preserve the estate until a regular administrator is appointed. Given this duty on the part of the special administrator, it would be prudent and reasonable to appoint someone interested in preserving the estate for its eventual distribution to the heirs. While the court may use its discretion, there is no logical reason to appoint a person who is a debtor of the estate and otherwise a stranger to the deceased. To do so would be tantamount to grave abuse of discretion [Manungas v. Loreto, G.R. No. 193161 (2011)] When appointed a. When there is delay in granting letters testamentary or administration by any cause, including an appeal from allowance or disallowance of a will [Sec. 1, Rule 80], or b. When the executor or regular administrator has a claim against the estate, with respect to the settlement or adjustment of that claim. [Sec. 8, Rule 86] Procedure There must first be notice and publication. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. [De Guzman v. Angeles, G.R. No. 78590 (1988)]

Page 288 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

The preference laid down under Sec. 6, Rule 78 refers to the appointment of a regular administrator, not to that of a special administrator. [Pijuan v. De Gurrea, G.R. No. L-21917 (1966)] Conditions on the bond More specifically, the bond is conditioned on the faithful execution of the administration of the decedent’s estate requiring the special administrator to a. Make and return true inventory in his possession or knowledge b. Render accounting when required by court c. Deliver estate of the deceased to the regular executor or administrator, or other authorized person [Sec. 4, Rule 81; Ocampo v. Ocampo, G.R. No. 187879 (2010)] Powers and duties a. Take possession and charge of goods, chattels, rights, credits, and estate of deceased, and b. Preserve the same for executor/administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator c. May sell only such perishable and other property as the court orders sold d. Not liable to pay any debts of the deceased unless so ordered by the court [Sec. 2, Rule 80] When powers cease When letters testamentary/administration are granted on the estate of the deceased a. Special administrator shall deliver to executor/administrator goods, chattels, money, and estate of the deceased in his hands. b. The executor/administrator may prosecute final judgment suits commenced by such special administrator. [Sec. 3, Rule 80] The appointment of a special administrator lies entirely in the discretion of the court, and is not appealable. Not being appealable, the only remedy against the appointment of a special

REMEDIAL LAW

administrator is certiorari under Rule 65 [Tan v. Gedorio, G.R. No. 166520 (2008)] Regular administrator Appointed by the court in the following instances a. Testator fails to name an executor in the will b. The appointment was refused c. The will was disallowed d. No will (intestate succession) Should pay the debts of the estate Order of Appointment is final and appealable

6. Grounds for Administrator

Special administrator Appointed by the court when a. there is delay in granting letters testamentary or administration by any cause b. the executor is a claimant of the estate, but only to portion where there is a claim Cannot pay debts of the estate unless ordered by the court Interlocutory and is not appealable. Remedy is Rule 65 petition

Removal

of

Removal of executor or administrator Grounds a. Neglects to 1. render his account and settle the estate according to law, or 2. perform an order or judgment of the court, or a duty expressly provided by these rules b. Absconds c. Becomes insane, or d. Becomes incapable or unsuitable to discharge the trust [Sec. 2, Rule 82] List enumerated is not exclusive. Court is vested with ample discretion in removal of administrator for as long as there is evidence of any act or omission on the part of the administrator not conformable to or in

Page 289 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

disregard of rules or orders of the court which it deems as sufficient or substantial to warrant removal of administrator. [Festin 62, 2011 Ed.] Examples of valid removal of an administrator by probate court a. Administrator who disbursed funds of estate without judicial approval [Cotia v. Jimenez, G.R. No. L-12132 (1958)] b. False representation by administrator in securing his appointment [Cobarrubias v. Dizon, G.R. No. L-225 (1946)] c. Administrator who holds interest adverse to that of the estate or his conduct shows unfitness to discharge the trust [Garcia v. Vasquez, G.R. No. L-26615 (1970)] d. Administrator who has physical and mental inability and consequent unsuitability to manage the estate [De Borja v. Tan, G.R. No. L-6476 (1955)] Temporary absence in the state does not disqualify one to be an administrator of the estate. [Gonzales v. Aguinaldo, G.R. No. 74769(1990)] Removal of Special Administrators The probate court may appoint or remove special administrators based on grounds other than those enumerated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not obtain. As long as the discretion is exercised without grave abuse, and is based on reason, equity, justice, and legal principles, interference by higher courts is unwarranted. [Ocampo v. Ocampo, G.R. No. 187879 (2010)] Effect of removal, death, or resignation a. The remaining executor/administrator may administer the trust alone, unless the court grants letters to someone to act with him b. If there is no remaining executor/administrator, administration may be to any suitable person [Sec. 2, Rule 82]

REMEDIAL LAW

For complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Sec. 2, Rule 82. While the provision is silent as to who may seek with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to seek such relief. [Hilado v. CA, G.R. No. 164108 (2009)] Validity of acts Lawful acts of the executor/administrator before removal/resignation are valid. [Sec. 3, Rule 82] The acts of the executor or administrator, done in good faith prior to the revocation of the letters, will be protected and a similar protection will be extended to rights acquired under a previous grant of administration. [Vda. De Bacaling v. Laguna, G.R. No. L-26694 (1973)] Powers of new executor or administrator a. Collect and settle the estate not administered b. Prosecute and defend actions commenced by or against the former executor/administrator, and c. Have execution on judgments recovered in the name of the former executor/administrator d. Authority to sell granted by court to former executor or administrator may be renewed without further notice or hearing [Sec. 4, Rule 82]

F.

CLAIMS AGAINST THE ESTATE

Estate burdened with lien of creditors Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. [Suiliong & Co. v. Chio-Taysan, G.R. No. L-4777 (1908)]

Page 290 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

Purpose of presentation of claims against estate 1. To protect the estate of the deceased 2. Executor/administrator will be able to examine each claim, determine whether it is a proper one which should be allowed 3. To appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration [Estate of Olave v. Reyes, G.R. No. L-29407 (1983)]

Printed copy of the published notice shall be filed in court within 10 days after its publication accompanied with affidavit setting forth the dates of first and last publication and name of newspaper where it was printed [Sec. 4, Rule 86]

1. Time within which Claims shall be filed; Exceptions

2. Statute of Non-Claims

General rule: Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice. [Sec. 2, Rule 86] Exceptions: Belated claims The court has discretion, for cause and upon such terms as are equitable, to allow contingent claims presented beyond the period previously fixed; provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution. [Danan v. Buencaminao, G.R. No. L-57205 (1981); Sec. 2, Rule 86] Note: The one-month extension does not commence from expiration of the original period for filing claims but from the date of the order of the court allowing said filing. [Barredo v. CA, G.R. No. L-17863 (1962) Notice to creditors to be published; Affidavit of publication Executor/administrator shall, immediately after the notice to creditors is issued, cause publication of notice for 3 weeks successively in a newspaper of general circulation in the province, and its posting in 4 public places in the province, and in 2 public places in the municipality, where the decedent last resided. [Sec. 3, Rule 86]

Significance of Notice Publication of notice is constructive notice to creditors and, thus, a creditor would not be permitted to file a claim beyond the period fixed in the notice on the bare ground that he had no knowledge of the administration proceedings. [Villanueva v. PNB, G.R. No. L-18403 (1963)]

General rule: Claim must be filed within the time limited in the notice; otherwise they are barred forever [Sec. 5, Rule 86] Purpose is to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims [Rio y Compania v. Maslog, G.R. No. L12302 (1959), citing Tan Se Guan v. GaSiu San, 47 Phil. 96] The filing of a money claim against the decedent’s estate is mandatory. The requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims against it, enabling him to examine each claim and to determine whether it is a proper one which should be allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees, or heirs. [Union Bank of the Philippines v. Santibañez, G.R. No. 149926 (2005), citing Py Eng Chong v. Herrera, G.R. No. L-31229 (1976)] Claims covered (exclusive) a. Claims for money against the decedent arising from contract 1. Express or implied 2. Due or not 3. Contingent or not

Page 291 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

b. Claims for funeral expenses c. Expenses for last sickness d. Judgment for money against decedent [Sec. 5, Rule 86] Statute of non-claims supersedes statute of limitations when it comes to debts of deceased persons. [Sikat v. Vda. De Villanueva, G.R. No. L-35925 (1932)] Exceptions: a. When set forth as counterclaims in any action that the executor/administrator may bring against the claimants [Sec. 5, Rule 86] b. Belated claims [Sec. 2, Rule 86] Quasi-contracts and contingent claims are included in claims that should be filed under Rule 86, Sec. 5 [Metropolitan Bank & Trust Co v. Absolute Management Corp., G.R. No. 170498 (2013)] Contingent claim One which by its nature, is necessarily dependent upon an uncertain event for existence or validity, which may or may not develop into an enforceable claim. [Buan v. Laya, G.R. No. L-7593 (1957)] When allowed a. When it becomes absolute b. Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims, and c. Not disputed by executor/administrator [Sec. 5, Rule 88] If disputed, it may be proved and allowed or disallowed by the court as the facts may warrant [Sec. 5, Rule 88] Where an executor/administrator commences action, or prosecutes an action already commenced by deceased in his lifetime, the debtor may set forth by answer the claims he has against decedent, instead of presenting them independently to the settlement court, and mutual claims may be set off against each other in such action. If the debtor obtains a

REMEDIAL LAW

favorable judgment, the amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. [Sec. 5, Rule 86] In a labor case where the deceased was found to have illegally dismissed the plaintiff, the money claims of the plaintiff who was adjudged entitled thereto must be filed against the estate of the deceased. [Gabriel v. Bilon, G.R. No. 146989 (2007); Sec. 20, Rule 3 in relation to Sec. 5, Rule 86] The specific provisions of Sec. 5, Rule 86 prevails over the general provisions of Section 11, Rule 6 of the same. The settlement of the estate of the decedent is governed by the rules on special proceedings, while the rules provided for ordinary claims including Section 11, Rule 6 merely apply suppletorily. [Metropolitan Bank & Trust Co. v. Absolute Management Corporation, G.R. No. 170498 (2013)] The presentation of a money claim may be waived. [Ignacio v. Pampanga Bus Co., Inc., G.R. No. L-18936 (1967)] If obligation solidary - file claim against decedent as if he is the only debtor If obligation joint - claim confined to the portion belonging to the decedent [Sec. 6, Rule 86] Where the obligation assumed by the decedent with his wife is a solidary one, a collection case can proceed and the demands of the creditor may be satisfied by the widow only, even without impleading the estate of her deceased husband. Thus, under Article 1216 of the Civil Code, the creditor has the right to proceed against anyone of the solidary debtors or some or all of them simultaneously. To require the creditor to proceed only as against the estate would deprive him of his substantive rights under the Civil Code. [Boston Equity Resources, Inc. v. CA, G.R. No. 173946 (2013)]

Page 292 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Alternative remedies of a mortgage creditor upon death of debtor a. Abandon the security and prosecute his claim from the estate as an ordinary claim – creditor is deemed to have abandoned the mortgage and he cannot thereafter file a foreclosure suit if he fails to recover his money claim against the estate. b. Foreclose mortgage judicially and prove any deficiency as an ordinary claim – suit should be against the executor or administrator as party defendant; creditor may obtain deficiency judgment if he fails to fully recover his claim. c. Rely solely on the mortgage and foreclose it before it is barred by prescription without right to claim for deficiency – includes extrajudicial foreclosure of sale and its exercise precludes one from recovery of any balance of debt against the estate and frees the estate from further liability. [Sec. 7, Rule 86] It must, however, be emphasized that these remedies are distinct, independent, and mutually exclusive from each other, thus, the election of one effectively bars the exercise of the others [Heirs of Maglasang v. Manila Banking Corporation, G.R. No. 171206 (2013); Philippine National Bank v. CA, G.R. No. 121597 (2001); Festin 79, 2011 Ed.]

3. Claim of Executor Administrator against Estate

or the

Procedure to follow if the executor/administrator has a claim against the estate he represents a. Executor/Administrator shall give notice thereof, in writing, to the court b. The court shall appoint a special administrator who shall have the same power and liability as the general executor/administrator in the adjustment of such claim c. The court may order the executor/administrator to pay to the special

REMEDIAL LAW

administrator necessary funds to defend such claim [Sec. 8, Rule 86]

c. How to File For a Claim a. Deliver the claim with the necessary vouchers to the clerk of court, and b. Serve a copy thereof on the executor/administrator [Sec. 9, Rule 86] Additional requirements a. If the claim be founded on a bond, bill, note, or any other instrument – the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim. On demand, however, of executor/administrator, or by order of court or judge, the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. b. When the claim is due – it must be supported by an affidavit which states i. the amount justly due; ii. that no payments have been made thereon which are not credited; and iii. that there are no offsets to the same, to the knowledge of the affiant. c. If the claim is not due, or is contingent, when filed – it must also be supported by affidavits stating the particulars thereof. d. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. [Sec. 9, Rule 86] Answer by executor/administrator Shall be filed within 15 days after a copy of the claim has been served upon him. The executor/administrator may interpose any counterclaim. Said counterclaim is regarded as compulsory, as the failure to file the same shall bar the claim forever. [Sec. 10, Rule 86]

Page 293 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

Executor/administrator entirely admits claim – claim shall be submitted by the clerk to the court who may approve the same without hearing, but the court in its discretion before approving the claim, may order that known heirs, legatees, or devisees be notified and heard. If the latter oppose upon hearing, the court may allow 15 days to file an answer. [Sec. 11, Rule 86]

If there is still a deficiency, the debt shall be satisfied through the contributive shares of the devisees, legatees, or heirs who have been in possession of portions of the estate before debts and expenses have been settled and paid. [Sec. 6, Rule 88]

Executor/administrator disputes claim OR fails to file answer – clerk of court shall set the claim for trial with notice to both parties [Sec. 12, Rule 86]

Exceptions (when realty charged first) 1. When the sale of personal property is insufficient [Sec. 3, Rule 88] 2. When its sale will redound to the detriment of the participants for the estate [Id.] 3. When its sale may injure the business or other interests of those interested in the estate [Sec. 2, Rule 89] 4. When the testator has not made sufficient provision for payment of such debts, expenses, and legacies [Id.] 5. When the decedent was, in his lifetime, under contract, binding in law, to deed real property, or an interest therein, to beneficiary [Id., Sec. 8] 6. When the decedent during his lifetime held real property in trust for another [Id., Sec. 9]

Judgment of court approving or disapproving a claim shall be appealable as in ordinary cases. [Sec. 13, Rule 86]

4. Payment of Debts Debts paid in full if estate sufficient 1. After all money claims heard and their amount ascertained, and 2. It appears there are sufficient assets to pay the debts [Sec. 1, Rule 88] The executor/administrator shall pay the same within the time limited for that purpose. [Sec. 1, Rule 88] The heirs of the estate may not demand the closing of an intestate proceeding at any time where there is a pending case against the administrator of the estate. The court can rightfully hold the proceeding in abeyance until the civil case is settled. [Dinglasan v. Chia, G.R. No. L-3342 (1951)] Order of preference for payment of debts 1. Portion of property designated in the will a. If testator makes provision by will, or designates the estate for the payment of debts, expenses of administration, or family expenses, they shall be paid according to such provisions b. If not sufficient – part of the estate not disposed of by will shall be appropriated [Sec. 2, Rule 88] 2. Personal property [Sec. 3, Rule 88] 3. Real property [Sec. 2, Rule 89]

General rule: Personal estate not disposed of by will shall be first chargeable

Requisites before any of the exceptions apply 1. The executor or administrator makes an application with the court 2. Written notice is given to the persons interested 3. Hearing by the court Note, HOWEVER: Sec. 8 should be differentiated from Secs. 2 and 4 of Rule 89, specifically requiring only the executor or administrator to file the application for authority to sell, mortgage or otherwise encumber real estate for the purpose of paying debts, expenses and legacies (Sec. 2); or for authority to sell real or personal estate beneficial to the heirs, devisees or legatees and other interested persons, although such authority is not necessary to pay debts, legacies or expenses of administration (Sec. 4). Sec. 8, Rule 89 mentions only an application to authorize the conveyance of

Page 294 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

realty under a contract that the deceased entered into while still alive. The proper party is one who is to be benefited or injured by the judgment, or one who is to be entitled to the avails of the suit [Heirs of Sandejas v. Lina, G.R. No. 141634 (2001)] The disposal of estate property requires judicial approval before it could be executed. Implicit in the requirement for judicial approval was that the probate court could rescind or nullify the disposition of a property under administration that was effected without its authority [Spouses Lebin v. Mirasol, G.R. No. 164255 (2011)] Sale beneficial to interested persons Upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees, the court may authorize the sale of the whole or a part of the real or personal estate when beneficial to the heirs, although not necessary to pay debts, legacies, or expenses of administration. Proceeds derived from the sale shall be assigned to the persons entitled to estate in the proper proportions BUT the authority will not be granted if inconsistent with the provisions of a will. [Sec. 4, Rule 89] Sale, mortgage, or other encumbrance of realty acquired on execution or foreclosure The court may authorize an executor or administrator to sale, mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule. [Sec. 6, Rule 89] Deed of sale, mortgage or encumbrance The deed executed by the executor or administrator shall be valid as if executed by the deceased in his lifetime. [Sec. 7-8, Rule 89] For sales contracted by the decedent during his lifetime, Sec. 8, Rule 89 applies. In such cases, the court having jurisdiction of the estate may, on application for that purpose,

REMEDIAL LAW

authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court. [Liu v. Loy, G.R. No. 145982 (2003)] Court approval is required in any disposition if the decedent’s estate per Rule 89. Reference to judicial approval, however, cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the coheirship or co-ownership. In other words, they can sell their rights, interests or participation in the property under administration. [Heirs of Spouses Sandejas v. Lina, G.R. No. 141634 (2001)] OPPOSITOR MAY PREVENT SALE BY GIVING BOND The authority to sell, mortgage, or otherwise encumber real or personal estate shall not be granted if any person interested in the estate gives a bond, in a sum fixed by the court. [Sec. 3, Rule 89] Conditions of bond To pay debts, expenses of administration, and legacies within such time as court directs [Id.] Who may claim on the bond Such bond shall be for security of creditors, as well as of executor/administrator, and may be prosecuted for the benefit of either [Id.] REGULATION FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE ENCUMBER ESTATE a. The executor/administrator shall file a written petition setting forth 1. Debts due from deceased, expenses for administration, legacies 2. Value of personal estate 3. Situation of estate to be sold, mortgaged, encumbered, and 4. Such other facts showing that sale etc., is necessary or beneficial b. The court will fix the time and place for hearing such petition and cause notice to be given personally or by mail to persons interested, and by publication if deemed proper

Page 295 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

The court may require the executor/administrator to give additional bond conditioned on an accounting for proceeds of sale, etc. d. The court may authorize sale to be public or private e. If estate is to be sold at auction, mode of giving notice shall be governed by provisions concerning notice of execution sale f. Certified copy of the order of the court, plus deed of executor/administrator for real estate sold, mortgaged, or encumbered shall be registered in registry of deeds where property is located [Sec. 7, Rule 89] c.

Under Sec. 7, Rule 89, only the executor or administrator of the estate may be authorized by the intestate court to mortgage real estate belonging to the estate. Thus, the order of the estate court authorizing the heirs to mortgage the realty of the estate is a nullity. [Orola, et al. v. The Rural Bank of Pontevedra, G.R. No. 158566 (2005)] Settled is the rule that when an order authorizing the sale or encumbrance of real property was issued by the testate or intestate court without previous notice to the heirs, devisees, and legatees as required by the Rules, it is not only the contract itself which is null and void but also the order of the court authorizing the same. [Pahamotang v. PNB, G.R. No. 156403 (2005)] CONTINGENT CLAIMS Estate to be retained to meet contingent claims If court is satisfied that a contingent claim is valid, it may order the executor/administrator to 1. Retain in his hands sufficient estate for the purpose of paying such contingent claim when it becomes absolute 2. If estate insolvent - retain a portion equal to the dividend of the other creditors [Sec. 4, Rule 88] Payment of contingent claim 1. If claim becomes absolute within 2 years limited for creditors and allowed

REMEDIAL LAW

by the court - Creditor shall receive payment to the same extent as the other creditors if estate retained by executor/administrator is sufficient. 2. Claim not presented after becoming absolute within 2 year period and allowed by the court – Assets retained after claims have been paid shall be distributed to persons entitled by court order; but assets already distributed may still be applied to the payment of the established claim, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from property of deceased. [Sec. 5, Rule 88] Liability of heirs and distributees Heirs are not required to respond with their own property for the debts of their deceased ancestors. But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate. [Gov’t of P.I. v. Pamintuan, G.R. No. L-33139 (1930)] INSOLVENT DECEDENT Order of payment if estate is insolvent Executor/administrator shall pay the debts against the estate, observing Articles 1059 and 2239 to 2251 of the Civil Code (Preference of credits). [Sec. 7, Rule 88] Dividends to be paid in proportion to claims If assets are not sufficient to pay credits of any one class of creditors after paying preferred credits, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. [Sec. 8, Rule 88] Insolvent non-resident His estate found in Philippines shall be so disposed of in a manner that will ensure that his creditors here and elsewhere may receive

Page 296 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

each an equal share, in proportion to their respective credits. [Sec. 9, Rule 88] Insolvent resident with foreign creditors and foreign claims proven in another country If executor/administrator in Philippines had 1. knowledge of presentation of such claims in such country, and 2. opportunity to contest such allowance The court shall 1. Receive a certified list of such claims, when perfected in such country 2. Add the same to the list of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate may be made equally among all its creditors according to their respective claims. [Sec. 10, Rule 88] Principle of reciprocity The benefit of this and preceding sections shall not be extended to creditors in another country if property of the deceased there found is not equally apportioned to creditors residing in Philippines and other creditors, according to their respective claims [Sec. 10, Rule 88]

REMEDIAL LAW

When a disputed claim is finally settled, the court shall order the claim to be paid out of assets retained to the same extent and in the same proportion with the claims of other creditors. [Sec. 12, Rule 88] Instances when court may make further orders for distribution of assets 1. If whole of debts not paid on first distribution, and 2. If: a. Whole assets not distributed, or b. Other assets afterwards come to hands of executor/administrator [Sec. 13, Rule 88] Creditors to be paid in accordance with terms of order When an order is made for distribution of assets among creditors, executor/ administrator shall, as soon as the time of payment arrives, pay creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order [Sec. 14, Rule 88] Time for paying debts and legacies General rule: Not exceeding 1 year in the first instance

ORDER FOR PAYMENT OF DEBTS Before expiration of time limited for payment of the debts, court shall order 1. payment, and 2. distribution of assets received by the executor/administrator for that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions of this rule. [Sec. 11, Rule 88]

Exception: Court may extend the period, on application of the executor/administrator after hearing on notice to all interested persons, on the following conditions 1. Extension must not exceed 6 months for a single extension, and 2. The whole period allowed shall not exceed 2 years [Sec. 15, Rule 88]

If appeal taken from a decision of the court concerning a claim The court may 1. Suspend order for payment, or 2. Order distribution among creditors whose claims are definitely allowed, leaving in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed

Extension of time for paying debts and legacies When executor/administrator dies, and a new administrator of same estate is appointed, court may extend time 1. Not exceeding 6 months at a time, and 2. Not exceeding 6 months beyond the time which court might have allowed to original executor/administrator,

Page 297 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

and notice shall be given of time and place for hearing such application, as required in the last preceding section. [Sec. 16, Rule 88] Writ of execution General rule: The probate court does not have the power to issue writs of execution. A writ of execution is not the proper procedure for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale of mortgaged of real property of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage [Aldamiz v. Judge of CFI-Mindoro, G.R. No. L-2360 (1949)] Exceptions: 1. To satisfy the distributive shares of devisees, legatees, and heirs in possession of the decedent’s assets, or 2. To enforce payment of expenses of the partition, or 3. To satisfy the costs when a person is cited for examination in probate proceedings [Festin 86, 2011 Ed.]

G.

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

REMEDIAL LAW

against the executor/administrator. [Sec. 1, Rule 87] When an accused, a doctor, died pending appeal of his conviction in a case arising from the death of his patient, his criminal liability is extinguished. However, the recovery of the civil liability subsists as the same is not based on delict but by contract and the reckless imprudence he was guilty of. If the same act or omission complained of arises from quasidelict, as in this case, a separate civil action must be filed against the executor or administrator of the estate of the accused pursuant to Sec. 1, Rule 87. [Cabugao v. People, G.R. Nos. 163879 and 165805 (2014)] Executor or administrator may bring or defend actions which survive death For recovery or protection of property or rights of deceased [Sec. 2, Rule 87] Covers injury to property i.e. not only limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished. [Aguas v. Llenos, G.R. No. L-18107 (1962)] Mortgage due to the decedent’s estate may be foreclosed by the executor/administrator [Sec. 5, Rule 87]

against

General rule: Heirs may not sue for recovery of property of the estate against executor/administrator during pendency of administration proceedings. [Sec. 3, Rule 87; Romero v. CA, G.R. No. 188921 (2012)]

Actions that may be brought against executor or administrator (actions that SURVIVE the decedent’s death) a. Recovery of real or personal property, or interest therein, from estate b. Enforcement of a lien thereon, and c. Recovery of damages for an injury to a person or property, real or personal [Sec. 1, Rule 87; Sarsaba v. Vda. De Te, G.R. No. 175910 (2009)]

Exceptions: a. If executor or administrator is unwilling to bring a suit b. When the executor or administrator is made a party defendant where he is alleged to have participated in the act complained of c. Where there is no appointed administrator [Festin 81-82, 2011 Ed.]

1. Actions by Executors

and

NO action upon a claim for the recovery of money or debt or interest shall be commenced

Page 298 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Proceedings when property concealed, embezzled or fraudulently conveyed The court may cite any person suspected of a. Having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or b. Having in his possession or having knowledge of 1. any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of deceased to real or personal estate, or 2. last will and testament of deceased, to appear before it and be examined on oath on the matter of complaint by the executor or administrator, heir, legatee, creditor or other individual interested in the estate of the deceased to the court having jurisdiction of the estate. If the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. [Sec. 6, Rule 87] Purpose Similar to Sec. 6, Rule 87, Sec. 7 of the same rule is merely in the nature of fact-finding inquiries. It is intended to elicit evidence relative to estate properties. The RTC which has jurisdiction over the administration and settlement of the estate has limited jurisdiction and is without authority to resolve issues of ownership with finality especially when third persons are involved. Separate actions should be instituted by the administrator for the purpose. [Punongbayan v. Punongbayan, G.R. No. 156842 (2004)] Double Value Rule A person who embezzles or alienates any of the money, goods, chattels, or effects of the deceased before the granting of letters testamentary or of administration of the estate, is liable for double the value of the property sold, embezzled, or alienated, to be recovered in favor of the estate [Sec. 8, Rule 87]

REMEDIAL LAW

When executor or administrator may bring action for recovery of property fraudulently conveyed by deceased a. There is a deficiency of assets for payment of debts and expenses of administration and the deceased, in his lifetime, had conveyed real or personal property, right or interest therein, or debt or credit with intent to defraud his creditors or avoid any right, debt or duty, or b. Deceased had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime [Sec. 9, Rule 87] Process of recovery by the executor or administrator of property fraudulently conveyed a. Creditors apply for the commencement of the action b. Creditors making the application pay such part of the costs and expenses, or give security therefor to the executor/administrator, as the court deems equitable c. Executor/administrator commences and prosecutes to final judgment an action for the recovery of such property, right, interest, debt or credit for benefit of the creditors [Sec. 9, Rule 87]

2. Requisites before Creditor may bring an Action for Recovery of Property Fraudulently Conveyed by the Deceased 1. There is a deficiency of assets 2. The deceased in his lifetime had made or attempted such a conveyance with intent to defraud creditors or to avoid any right, debt, or duty 3. The executor or administrator has not commenced the action provided in Sec. 9, Rule 87

Page 299 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

4. The creditor has filed a bond executed to the executor or administrator in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action a. If executor/administrator failed to commence such action 1. Action must be i. With court permission ii. In the name of executor/administrator 2. Creditor must file bond, conditioned to indemnify the executor/administrator against the cost and expenses incurred by such action b. If conveyance or attempt is made in favor of executor/administrator 1. No need for court permission 2. No need for bond 3. Action in the name of all creditors Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. [Sec. 10, Rule 87]

H.

DISTRIBUTION AND PARTITION

Before there could be a distribution of the estate, the following stages must be followed 1. Liquidation of estate i.e. payment of obligations of deceased 2. Declaration of heirs - to determine to whom the residue of the estate should be distributed a. Determination of the right of a natural child b. Determination of proportionate shares of distributees Afterwards, the residue may be distributed and delivered to the heirs [3-A Herrera 173, 1996 Ed.] Payment of the inheritance tax, per se, does not settle the estate of a deceased person.

REMEDIAL LAW

[Agtarap v. Agtarap, G.R. Nos. 177099 and 177192 (2011)]

1. Liquidation General rule: Before an order of distribution or assignment, it must be shown that the debts, funeral expenses, and expenses of administration, allowance to widow, and inheritance tax chargeable to the estate have been paid. Exception: If the distributees give a bond conditioned for the payment of said obligations. [Sec. 1, Rule 90; Estate of Ruiz v. CA, G.R. No. 118671 (1996)] The part distributed must not be subject to any controversy or appeal. [Sec. 2, Rule 109]

2. Project of Partition A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. [Reyes v. Barretto-Datu, G.R. No. L-17818 (1967); Vda. De Kilayko v. Tengco, G.R. Nos. L-45425 and L-45965 (1992)] The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. [3 Moran 541, 1980 Ed.] When order for distribution of residue made Court makes that distribution of the estate and determines the persons entitled thereto a. On application of executor/administrator or of person interested in estate b. Hearing upon notice Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the

Page 300 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are lawful heirs such shall be heard and decided as in ordinary cases [Sec. 1, Rule 90] The order of a probate court approving the compromise had the effect of directing the delivery of the residue of the estate to the persons entitled thereto under the compromise agreement. As such, it brought to a close the intestate proceedings and the probate court lost jurisdiction over the case, except only as regards the compliance and the fulfillment of the parties of their respective obligations under the compromise agreement. [Reyes-Masugas v. Reyes, G.R. No. 174835 (2010)] Court may determine questions as to advancement made by decedent [Sec. 2, Rule 90] Although it is within the jurisdiction of the court whether or not to permit the advance distribution of the estate, its exercise should be qualified by the following: (1) only part of the estate that is not affected by any pending controversy or appeal may be subject of advance distribution (Sec. 2, Rule 109); and (2) the distributees must post a bond, fixed by the court, conditioned for the payment of outstanding obligations of the estate. (par. 2, Sec. 1, Rule 90) [Quasha Ancheta Peña and Nolasco Law Office v. LCN Construction Corporation, G.R. No. 174873 (2008)] Effect of final decree of distribution Title to the property of the estate vests in the distributees. [De Kilayko v. Tengco, G.R. No. 45425 (1992)] The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. [Vda. De Alberto v. CA, G.R. No. L-29759 (1989)]

REMEDIAL LAW

3. Remedy of an Heir Entitled to Residue but Not Given His Share The better practice for the heir who has not received his share is to a. Demand his share through a proper motion in the same probate or administrative proceedings, or b. Motion for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action [Guilas v. Judge of the CFI of Pampanga, G.R. No. L-26695 (1972)] BUT where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heir has lost the right to have himself declared in the special proceeding as a co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. [Portugal v. Portugal-Beltran, G.R. No. 155555 (2005)]

4. Instances when Court may Issue Execution

Probate Writ of

General rule: writ of execution is not allowed in probate proceedings [Vda de. Valera v. Ofilada, G.R. No. L-27526 (1974)] Exceptions: a. To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent’s assets [Sec. 6, Rule 88] b. To enforce payment of expenses of partition [Sec. 3, Rule 90] c. To satisfy the costs when a person is cited for examination in probate proceedings [Sec. 13, Rule 142]

Page 301 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

When does a probate court lose jurisdiction of an estate under administration? The probate court loses jurisdiction of an estate under administration only after payment of all debts, and the remaining estate delivered to the heirs entitled to receive the same [Guilas v. Judge of the CFI of Pampanga, G.R. No. L26695 (1972)]

I.

property or portion affected by the trust is situated [Sec. 1, Rule 98]

TRUSTEES

Trust is a confidence reposed in one person, called the trustee, for the benefit of another called the cestui que trust, with respect to the property held by the former for the benefit of the latter. [De Leon 254, 2015] Note: This rule only applies to express trusts and not implied trusts which arise by operation of law [2 Regalado 148, 2004 Ed.]

1. Distinguish Trustee Executor/Administrator

and

Executor/ Administrator Accounts are not under oath and shall be filed Accounts must be within 1 year from the under oath and time of receiving letters filed at least once testamentary or of a year [Sec. 6(c), administration, and as Rule 98] the court may require, until the estate is wholly settled [Sec.8, Rule 85] Court which has jurisdiction: a. RTC in which will was allowed if Court which has appointed to jurisdiction may be the carry into RTC or MTC effect the [Sec. 19 and 33, B.P. provisions of 129] a will b. RTC of province in which Trustee

REMEDIAL LAW

May sell or encumber real or personal property of estate held in trust if necessary or expedient upon order of the court on petition and after due notice and hearing [Sec. 9, Rule 98]

Page 302 of 525

Personal property may, upon order, be sold a. To pay debts, expenses, or legacies, or b. If it appears necessary for preservation of the property [Sec. 1, Rule 89], or c. If sale of whole or part will be beneficial to heirs, devisees, legatees and other interested persons and is not inconsistent with the provisions of the will [Sec. 4, Rule 89] Real property may, upon order, be sold, mortgaged, encumbered to pay debts a. When personal estate is insufficient to pay debts, or b. Where 1. Sale of personal estate may injure business of persons interested in estate; and 2. Property appropriated by testator in will is insufficient to pay debts

U.P. LAW BOC

SPECIAL PROCEEDINGS

[Sec. 2, Rule 89] Appointed to carry into effect the provisions of a will or written instrument May be exempted from filing of bond if requested by a. testator, and b. all persons beneficially interested in the trust, being of full age [Sec. 5, Rule 98]

Appointed by court to settle estate of a decedent

Not exempted from filing of bond even if such exemption is provided in the will; However, bond is only conditioned upon payment of debts [Sec. 2, Rule 81]

A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority [Trusteeship of the Minors Benigno, Angela and Antonio Perez y Tuazon, G.R. Nos. L16185-86 (1962)] The duties of an executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. [Araneta v. Perez, G.R. No. L-16962 (1962)] A trustee does not acquire ownership of the assets entrusted to him but merely manages it for the benefit of the beneficiary. [Home Guaranty Corp. v. R-II Builders, Inc., G.R. No. 192649 (2011)]

2. Conditions of the Bond The following conditions shall be deemed to be part of the bond: a. Inventory The trustee will make and return to court, at such time as it may order, a true inventory of all real and personal estate belonging to him as trustee, which at time of the making of such inventory shall have come to his possession or knowledge. b. Faithful management

REMEDIAL LAW

He will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of instrument or order under which he is appointed. c. Accounting He will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order. d. Settlement of account and delivery of estate At expiration of his trust, he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto. [Sec. 6, Rule 98] Effect of neglect to file bond A trustee who neglects to file a bond shall be considered to have declined or resigned the trust [Sec. 5, Rule 98]

3. Requisites for the Removal and Resignation of a Trustee Requisites for the Removal of a Trustee a. Petition by parties beneficially interested b. Due notice to the trustee c. Hearing d. Presence of any of the grounds of removal [Sec. 8, Rule 98] Requisites Resignation of a Trustee a. Trustee resigns b. The court deems it proper to allow the resignation [Sec. 8, Rule 98]

4. Grounds for the Removal and Resignation of a Trustee Grounds for removal a. Removal appears essential in the interests of petitioners b. Trustee is

Page 303 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

To issue a birth certificate which shall not bear any notation that it is new or amended; iii. To seal the original birth certificate in the civil registry records which can be opened only upon order of the court which issued the adoption decree; and d. to submit to the issuing court proof of compliance with the foregoing within 30 days from receipt of decree [Sec. 16; Secs. 13-14, R.A. 8552]

b. Instances When Adoption May be Rescinded

ii.

a. Effects of Adoption 1. Parental Authority Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s) [Sec. 16] 2. Legitimacy The adoptee shall be considered as the legitimate son/daughter of the adopter(s) for all intents and purposes [Sec. 17] 3. Succession In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. [Sec. 18] Even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights [In Re : Petition for Adoption of Lim, G.R. No. 168992-93 (2009)]

REMEDIAL LAW

Upon petition of the adoptee, with the assistance of the DSWD, as guardian or counsel, if a minor or if over 18 years of age but is incapacitated. Grounds for Rescission a. Repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; b. Attempt on the life of the adoptee; c. Sexual assault or violence; or d. Abandonment and failure to comply with parental obligations Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Art. 919 of the Civil Code [Sec. 19]

c. Effects of Adoption

Rescission

of

Restoration of parental authority or legal custody if adoptee a minor or is incapacitated If the petition is granted, the parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the DSWD, shall be restored if the adoptee is still a minor or incapacitated. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other is extinguished Restoration of original birth certificate The court shall order the Civil Registrar to cancel the amended certificate or birth of the adoptee and restore his/her original birth certificate. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial judicial rescission

Page 312 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Vested rights acquired prior to rescission shall be respected. The foregoing effects of rescission is without prejudice to the penalties imposable under the RPC if the criminal acts are properly proven. [Sec. 20]

3. Inter-country Adoption Procedure [A.M. 02-6-02-SC] An alien or a Filipino citizen permanently residing abroad shall allege in the petition: a. That he is at least 27 years old and at least 16 years older than the child to be adopted, at the time of application, unless the adopter is the parent by nature of the child or the spouse of such parent; b. If married, the name of the spouse who must be joined as co-petitioner except when the adoptee is the legitimate child of his spouse; c. That he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone appropriate counseling from an accredited counselor in his country; d. That he has not been convicted of a crime involving moral turpitude; e. That he is eligible to adopt under his national law; f. That he is in a position to provide proper care and support; g. That he agrees to uphold the basic rights of the child under Philippine laws, and UNCRC, and to abide by the rules and regulations under R.A. 8043; h. That he comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adopted is allowed under his national laws; and i. That he possesses all the qualifications and none of the disqualifications provided in R.A. 8043 and in other applicable Philippine laws

REMEDIAL LAW

[Sec. 30; Sec. 9, R.A. 8043] ↓ Annexes to the petition written and translated in the English language: a. Birth certificate of petitioner; b. Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c. Sworn statement of consent of petitioner’s biological or adopted children above 10 years old; d. Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e. ITRs or any authentic document showing the current financial capability of the petitioner; f. Police clearance of petitioner issued within 6 months before the filing of the petition; g. Character reference from the local church/minister, the petitioner’s employer and a member of the immediate community who have known the petitioner for at least 5 years; h. Full body postcard-size pictures of petitioner and his immediate family taken at least 6 months before filing the petition [Sec. 31; Sec. 10, R.A. 8043] ↓ The court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the InterCountry Adoption Board for appropriate action [Sec. 32]

The Inter-Country Adoption Board shall issue a clearance that the child cannot be adopted locally, and when the Board is ready to transmit the child to the authorized and accredited inter-country adoption agency, the adoptive parent(s) shall personally fetch the child in the Philippines. A supervised trial custody shall be done for a period of 6 months from the time of placement of the child to the adoptive

Page 313 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

parents, to be facilitated by the inter-country adoption agency where the adoptive parents filed their application. Only after the lapse of 6 months will an adoption decree issue in the said country and a copy of which shall be sent to the Board [Sec. 11, R.A. 8043]

a. When Allowed Only to be used as a last resort and in the best interest of the child when the Inter-country Adoption Board has exhausted all possibilities for adoption under the Family Code. [Sec. 7, R.A. 8043] Family matching No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. [Sec. 11, R.A. 8043] Only a child legally available for domestic adoption may be the subject of inter-country adoption. [Sec. 29; Sec. 8, R.A. 8043]

b. Functions of the Regional Trial Court 1. Receive the application 2. Assess the qualification of the prospective adopter 3. Refer its findings, if favorable, to the InterCountry Adoption Board [De Leon 340, 2015]

c. ‘Best Interest of the Child’ Standard Inter-country adoption is allowed only when the same shall prove beneficial to the child’s interest and shall serve and protect his/her fundamental rights. [De Leon 340, 2015]

M.

REMEDIAL LAW

WRIT OF HABEAS CORPUS

Coverage Extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. [Sec. 1, Rule 102] Note: The privilege of the writ of habeas corpus can only be suspended in cases of rebellion or invasion and when public interest requires it. [Sec. 15, Art. III, Constitution] Rationale The underlying rationale is not the illegality of the restraint but the right of custody [Tijing v. CA, G.R. No. 125901 (2001)] Purpose The purpose of the writ is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal 1. To obtain immediate relief from illegal confinement 2. To liberate those who may be imprisoned without sufficient cause 3. To deliver them from unlawful custody [Velasco v. CA, G.R. No. 118644 (1995)] Concept of restraint Actual and effective and not merely nominal or moral restraint is required. [Zagala v. Illustre, G.R. No. L-23999 (1926)] Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for [Ampatuan v Judge Macaraig, G.R. No. 182497 (2010)] However, actual physical restraint is not always required; any restraint which will prejudice

Page 314 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

freedom of action is sufficient [Moncupa v. Enrile, G.R. No. L-63345 (1986)] Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Indeed, in the landmark case of Villavicencio v. Lukban, 39 Phil. 778, the Supreme Court declared that it is the duty of a court to issue the writ if there is evidence that a person is unjustly restrained of his liberty within its jurisdiction even if there is no application therefor. A petition which is deficient in form, such as a petition-letter, may be entertained so long as its allegations sufficiently make out a case for habeas corpus. [Fletcher v. Director of BuCor, UDK- 14071, (2009)]. Who may issue the writ 1. The SC, CA, and RTC have concurrent jurisdiction to issue WHC [Sec. 2, Rule 102] 2. Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the writ in relation to custody of minors [Sec. 20, AM 03-04-04-SC, Re Proposed Rule on Custody of Minors and Writ of Habeas corpus in Relation to Custody of Minors] Writs issued by the Supreme Court, the Court of Appeals, and the Sandiganbayan are enforceable anywhere in the Philippines. Those issued by the RTC and MTC are enforceable only within the judicial region to which they belong. Even though the writ of habeas corpus was issued by the CA but it designated the RTC as the court to which the writ is made returnable, the decision of the RTC is its own and not that of the CA. [In re Datukan Malang Salibo, (2015)]. Temporary release may constitute restraint 1. Where a person continued to be unlawfully denied one or more of his constitutional rights 2. Where there is present denial of due process

REMEDIAL LAW

3. Where the restraint is not merely involuntary but appear to be unnecessary 4. Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary [Moncupa v. Enrile, G.R. No. L-63345 (1986)] When detained person released General rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot Exception: Doctrine of Constructive Restraint – Restraints attached to release which precludes freedom of action, in which case the court can still inquire into the nature of the involuntary restraint Nature Not a suit between private parties, but an inquisition by the government, at the suggestion and instance of an individual, but still in the name and capacity of the sovereign. There can be no judgment entered against anybody since there is no real plaintiff and defendant [Alimpos v. CA, G.R. Nos. L-5040506 (1981)] Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. [Ching v. Insular Collector of Customs, G.R. No. 10972 (1916)] The question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts [Herrera, citing 4 Cranch, 75, 101] The writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose of relieving from illegal restraint [People v. Valte, G.R. No. L-18760 (1922)] Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ

Page 315 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

deals only with such radical defects as to render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings [People v. Valte, G.R. No. L18760 (1922)] Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into [Caballes v. CA, G.R. No. 163108 (2005)] WHC may be used with writ of certiorari for purposes of review The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts [Galvez v. CA, G.R. No. 114046 (1994)] WHC reaches the body and the jurisdictional matters, but not the record. Writ of certiorari reaches the record, but not the body [Galvez v. CA, G.R. No. 114046 (1994)] While generally, the WHC will not be granted when there is an adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-488] Overview of Procedure Application for the writ by petition [Sec. 3, Rule 102] ↓ Grant or disallowance of writ and issuance by court or judge [Secs. 4-5, Rule 102] ↓ Clerk of court issues the writ under the seal of court (in case of emergency, by the judge himself) [Sec. 5, Rule 102] Note: ROC (Secs. 5 and 12) does not fix the periods but uses “forthwith”. The special rules for WHC relating to minors designates periods. However, in practice and in jurisprudence, the writ must be issued within 24 hours.

↓ Service a. By whom: sheriff or other proper officer BUT in case of emergency where the judge himself issues the writ, the judge may depute any person to serve the writ [Sec. 5, Rule 102] b. How: leaving the original with the person to whom it is directed and preserving a copy on which to make return c. To whom: officer in custody or any officer (when in custody of person other than an officer) [Sec. 7, Rule 102] ↓ Writ executed and returned [Sec. 8, Rule 102] ↓ Hearing by the court (upon return) [Sec. 12, Rule 102] ↓ Execution of the writ a. Officer brings the person before the judge, and b. Officer makes the due return [Sec. 8, Rule 102]

1. Contents of the Petition Signed and verified petition must set forth: a. That the person in whose behalf the application is made is imprisoned or restrained of his liberty b. The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended c. The place where he is so imprisoned or restrained, if known d. Copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy

Page 316 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

If imprisonment or restraint is without any legal authority, such fact shall appear [Sec. 3, Rule 102] Who may apply a. The party for whose relief it is intended, or b. By some person on his behalf [Sec. 3, Rule 102] Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application [Velasco v. CA, G.R. No. 118644 (1995)]

2. Contents of the Return Form a. Written and signed by the person who makes it b. Sworn by the person who makes it if 1. The prisoner is not produced, and 2. In all other cases, unless the return is made and signed by a sworn public officer in his official capacity [Sec. 11, Rule 102] By whom made: The person or officer who has the person under restraint, or in whose custody the prisoner is found [Sec. 10, Rule 102] Contents a. Whether he has or has not the party in his custody or power, or under restraint b. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held c. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge d. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time,

REMEDIAL LAW

for what cause, and by what authority such transfer was made When the return considered evidence, and when only a plea Custody under warrant of Restraint is by commitment in private authority pursuance of law The return shall be considered only as a The return shall be plea of the facts considered prima therein set forth, facie evidence of and the party the cause of claiming the custody restraint must prove such facts [Sec. 13, Rule 102]

3. Peremptory Writ Preliminary Citation

and

Distinction between the writ and the privilege of the writ The writ of habeas corpus is a process that is tantamount to a summons to appear before the court issuing it for an inquiry into the cause of the restraint complained of. Its issuance does not amount to an adjudication of the issue of legality of the restraint. It is just an order to appear and explain. The privilege of the writ, on the other hand, is the writ issued to enforce the court’s decision on the merits finding the restraint illegal and directing the release from custody of the detained individual. Preliminary citation

Requires the respondent to appear and show cause why the peremptory writ should not be granted

Page 317 of 525

Peremptory writ A written document which unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified

U.P. LAW BOC

SPECIAL PROCEEDINGS

[Lee Yick Hon v. Collector of Customs, G.R. No. L-16779 (1921)] The order to present an individual before the court is a preliminary step in the hearing of the petition. This order is NOT a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the order to produce the body is not equivalent to a grant of the writ of habeas corpus. [In the Matter of the Petition for Habeas corpus of Alejano v. Cabuay, G.R. No. 160792 (2005)] Quantum of proof for the issuance or nonissuance of the privilege When respondents' defense to a petition for habeas corpus is that they released the detainees for whom the petition was filed, but the allegation of release is disputed by petitioners, and it is not denied that the detainees have not been seen or heard from since their supposed release, the respondents have the burden in law of proving by clear and convincing evidence that they released the detainees. [Dizon v. Eduardo, G.R. No. L-59118 (1988)]

4. When Not Applicable

Proper

or

When WHC is NOT proper a. For asserting or vindicating the denial of right to bail [Enrile v. Salazar, G.R. No. 92163 (1990)] b. Where the petitioner has the remedy of appeal or certiorari [Galvez v. CA, G.R. No. 114046 (1994)] c. For correcting errors in the appreciation of facts or law [Sotto v. Director of Prisons, G.R. No. L-18871 (1962) Exception: If error affects court’s jurisdiction making the judgment void [Herrera] d. For enforcing marital rights including venture and living in conjugal dwelling [Ilusorio v. Bildner, G.R. No. 139789 (2001)] e. When restrained under a lawful process or order of the court, petitioner’s remedy is to file a motion to quash the information or the

f.

REMEDIAL LAW

warrant of arrest [In the matter of the petition for habeas corpus of Datukan Malang Salibo v. Warden, G.R. No. 197597 (2015)] When detention was by virtue of a final judgment, the writ of habeas corpus may not issue [Adonis v. Tesoro, G.R. No. 182855 (2013)]

When WHC is proper a. Remedy for reviewing proceedings for deportation of aliens [De Bisschop v. Galang, G.R. No. L-18365 (1963)] b. Where the court has no jurisdiction to impose the sentence [Banayo v. President of San Pablo, G.R. No. 1430 (1903)] c. Where a person is deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. [In re Datukan Malang Salibo, (2015)].

5. When Writ Discharged

Disallowed

or

a. When restraint is by lawful order or process [Mangila v. Judge Pangilinan, G.R. No. 160739 (2013); Adonis v. Tesoro, G.R. No. 182855 (2013); Ampatuan v. Judge Macaraig, G.R. No. 182497 (2010)] b. The person alleged to be restrained of his liberty is in the custody of an officer 1. Under process issued by the court or judge or by virtue of a judgment or order of a court of record, and 2. Said court had jurisdiction to issue the process, render the judgment or make the order, or c. Jurisdiction appears after the writ is allowed despite any informality or defect in the process, judgment, or order [Sec. 4, Rule 102] d. If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death [Sec. 14, Rule 102] e. Where the person in whose behalf the writ is sought is out on bail [Mangila v. Pangilinan, G.R. No. 160739 (2013)]

Page 318 of 525

U.P. LAW BOC

f.

REMEDIAL LAW

SPECIAL PROCEEDINGS

Even if the arrest of a person is illegal, the following supervening events may bar release 1. Issuance of a judicial process [Sayo v. Chief of Police of Manila, G.R. No. L2128 (1948)] Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law [Malaloan v. CA, G.R. No. 104879 (1994)] 2. The filing of a complaint before a trial court which issued a hold departure order and denied motion to dismiss and to grant bail [Velasco v. CA, G.R. No. 118644(1995)] 3. Filing of an information for the offense for which the accused is detained bars the availability of WHC [Velasco v. CA, G.R. No. 118644 (1995)]

The writ of habeas corpus cannot be availed of in cases of detention by virtue of a judicial process or valid judgment. Exceptions where the writ may be availed of as a postconviction remedy: a. There has been a deprivation of a constitutional right resulting in the restraint of a person; b. The court had no jurisdiction to impose the sentence; or c. An excessive penalty has been imposed, as such sentence is void as to such excess. [Harden v. Director of Prisons, 81 Phil. 741; Go v. Dimagiba, G.R. No. 151876, (2005)]. What is to be inquired into is the legality of a person’s detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at in its inception illegal, it may no longer be illegal at the time of the filing of the application, by reason of supervening events [Ampatuan v. Macaraig, G.R. 182497 (2010)]

6. Distinguished From Writ of Amparo and Habeas Data Writ of habeas corpus

Extends to all cases of illegal confineme nt or detention (deprivatio n of liberty), or where rightful custody is withheld from person entitled thereto

Writ of amparo

Writ of habeas data

ONLY covers extralegal killings and enforced disappearanc es or threats thereof

Designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy but in relation to a threat to one’s right to privacy in regard to life, security, and liberty [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

See Comparative Table at the end of Writ of Habeas Data for a more comprehensive list of distinctions.

7. Writ of Habeas Corpus In Relation To Custody of Minors [A.M. No. 03-04-04-SC] Applicability Rule applies to petitions for custody of minors and writs of habeas corpus in relation thereto. The Rules of Court applies suppletorily [Sec. 1] In custody cases involving minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

Page 319 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

The grant of the writ depends on the concurrence of the following requisites: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody over the minor is being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondents [Masbata v. Relucio, G.R. No. 235498 (2018) Who may file Any person claiming rightful custody of a minor [Sec. 2] Where filed; where enforceable A verified petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found, or with the CA or the SC. If filed with the Family Court where the petitioner resides, or where the minor may be found, the writ is enforceable within the judicial region where the Family Court belongs. If filed with the CA or the SC, or with any of its members, the writ shall be enforceable anywhere in the Philippines. Upon issuance of the writ by the SC or CA, it may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found. If the presiding judge of the Family Court is absent, then the petition may be filed with a regular court, provided that the regular court shall refer the case to the Family Court as soon as the presiding judge returns to duty. If there are no Family Courts in the area, then the petition may be filed with the regular courts The writ is returnable to the Family Court, or to any regular court within the judicial region where the petitioner resides or where the minor may be found, for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20]

REMEDIAL LAW

Considering that the writ is made enforceable within a judicial region, petitions for the issuance of the writ of habeas corpus, whether they be filed under Rule 102 or pursuant to Section 20 of A.M. No. 03-04-04-SC, may therefore be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought [Tujan-Militante v. CadaDeapera, G.R. No. 210636 (2014)] Procedure A verified petition is filed alleging: a. The personal circumstances of the petitioner and of the respondent; b. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; c. The material operative facts constituting deprivation of custody; and d. Such other matters which are relevant to the custody of the minor The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally [Sec. 4] ↓ If sufficient in form and substance, court shall direct the clerk of court to issue summons, which shall be issued together with a copy of the petition personally on respondent [Sec. 5] ↓ Within 5 days the respondent shall file a verified answer [Sec. 7] Note: A motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer [Sec. 6] ↓ Upon filing of answer or expiration of period to file it, court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation at least 3 days before the scheduled pre-trial [Sec. 8]

Page 320 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

To issue a birth certificate which shall not bear any notation that it is new or amended; iii. To seal the original birth certificate in the civil registry records which can be opened only upon order of the court which issued the adoption decree; and d. to submit to the issuing court proof of compliance with the foregoing within 30 days from receipt of decree [Sec. 16; Secs. 13-14, R.A. 8552]

b. Instances When Adoption May be Rescinded

ii.

a. Effects of Adoption 1. Parental Authority Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s) [Sec. 16] 2. Legitimacy The adoptee shall be considered as the legitimate son/daughter of the adopter(s) for all intents and purposes [Sec. 17] 3. Succession In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. [Sec. 18] Even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights [In Re : Petition for Adoption of Lim, G.R. No. 168992-93 (2009)]

REMEDIAL LAW

Upon petition of the adoptee, with the assistance of the DSWD, as guardian or counsel, if a minor or if over 18 years of age but is incapacitated. Grounds for Rescission a. Repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; b. Attempt on the life of the adoptee; c. Sexual assault or violence; or d. Abandonment and failure to comply with parental obligations Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Art. 919 of the Civil Code [Sec. 19]

c. Effects of Adoption

Rescission

of

Restoration of parental authority or legal custody if adoptee a minor or is incapacitated If the petition is granted, the parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the DSWD, shall be restored if the adoptee is still a minor or incapacitated. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other is extinguished Restoration of original birth certificate The court shall order the Civil Registrar to cancel the amended certificate or birth of the adoptee and restore his/her original birth certificate. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial judicial rescission

Page 312 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Vested rights acquired prior to rescission shall be respected. The foregoing effects of rescission is without prejudice to the penalties imposable under the RPC if the criminal acts are properly proven. [Sec. 20]

3. Inter-country Adoption Procedure [A.M. 02-6-02-SC] An alien or a Filipino citizen permanently residing abroad shall allege in the petition: a. That he is at least 27 years old and at least 16 years older than the child to be adopted, at the time of application, unless the adopter is the parent by nature of the child or the spouse of such parent; b. If married, the name of the spouse who must be joined as co-petitioner except when the adoptee is the legitimate child of his spouse; c. That he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone appropriate counseling from an accredited counselor in his country; d. That he has not been convicted of a crime involving moral turpitude; e. That he is eligible to adopt under his national law; f. That he is in a position to provide proper care and support; g. That he agrees to uphold the basic rights of the child under Philippine laws, and UNCRC, and to abide by the rules and regulations under R.A. 8043; h. That he comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adopted is allowed under his national laws; and i. That he possesses all the qualifications and none of the disqualifications provided in R.A. 8043 and in other applicable Philippine laws

REMEDIAL LAW

[Sec. 30; Sec. 9, R.A. 8043] ↓ Annexes to the petition written and translated in the English language: a. Birth certificate of petitioner; b. Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c. Sworn statement of consent of petitioner’s biological or adopted children above 10 years old; d. Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e. ITRs or any authentic document showing the current financial capability of the petitioner; f. Police clearance of petitioner issued within 6 months before the filing of the petition; g. Character reference from the local church/minister, the petitioner’s employer and a member of the immediate community who have known the petitioner for at least 5 years; h. Full body postcard-size pictures of petitioner and his immediate family taken at least 6 months before filing the petition [Sec. 31; Sec. 10, R.A. 8043] ↓ The court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the InterCountry Adoption Board for appropriate action [Sec. 32]

The Inter-Country Adoption Board shall issue a clearance that the child cannot be adopted locally, and when the Board is ready to transmit the child to the authorized and accredited inter-country adoption agency, the adoptive parent(s) shall personally fetch the child in the Philippines. A supervised trial custody shall be done for a period of 6 months from the time of placement of the child to the adoptive

Page 313 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

parents, to be facilitated by the inter-country adoption agency where the adoptive parents filed their application. Only after the lapse of 6 months will an adoption decree issue in the said country and a copy of which shall be sent to the Board [Sec. 11, R.A. 8043]

a. When Allowed Only to be used as a last resort and in the best interest of the child when the Inter-country Adoption Board has exhausted all possibilities for adoption under the Family Code. [Sec. 7, R.A. 8043] Family matching No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. [Sec. 11, R.A. 8043] Only a child legally available for domestic adoption may be the subject of inter-country adoption. [Sec. 29; Sec. 8, R.A. 8043]

b. Functions of the Regional Trial Court 1. Receive the application 2. Assess the qualification of the prospective adopter 3. Refer its findings, if favorable, to the InterCountry Adoption Board [De Leon 340, 2015]

c. ‘Best Interest of the Child’ Standard Inter-country adoption is allowed only when the same shall prove beneficial to the child’s interest and shall serve and protect his/her fundamental rights. [De Leon 340, 2015]

M.

REMEDIAL LAW

WRIT OF HABEAS CORPUS

Coverage Extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. [Sec. 1, Rule 102] Note: The privilege of the writ of habeas corpus can only be suspended in cases of rebellion or invasion and when public interest requires it. [Sec. 15, Art. III, Constitution] Rationale The underlying rationale is not the illegality of the restraint but the right of custody [Tijing v. CA, G.R. No. 125901 (2001)] Purpose The purpose of the writ is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal 1. To obtain immediate relief from illegal confinement 2. To liberate those who may be imprisoned without sufficient cause 3. To deliver them from unlawful custody [Velasco v. CA, G.R. No. 118644 (1995)] Concept of restraint Actual and effective and not merely nominal or moral restraint is required. [Zagala v. Illustre, G.R. No. L-23999 (1926)] Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for [Ampatuan v Judge Macaraig, G.R. No. 182497 (2010)] However, actual physical restraint is not always required; any restraint which will prejudice

Page 314 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

freedom of action is sufficient [Moncupa v. Enrile, G.R. No. L-63345 (1986)] Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Indeed, in the landmark case of Villavicencio v. Lukban, 39 Phil. 778, the Supreme Court declared that it is the duty of a court to issue the writ if there is evidence that a person is unjustly restrained of his liberty within its jurisdiction even if there is no application therefor. A petition which is deficient in form, such as a petition-letter, may be entertained so long as its allegations sufficiently make out a case for habeas corpus. [Fletcher v. Director of BuCor, UDK- 14071, (2009)]. Who may issue the writ 1. The SC, CA, and RTC have concurrent jurisdiction to issue WHC [Sec. 2, Rule 102] 2. Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the writ in relation to custody of minors [Sec. 20, AM 03-04-04-SC, Re Proposed Rule on Custody of Minors and Writ of Habeas corpus in Relation to Custody of Minors] Writs issued by the Supreme Court, the Court of Appeals, and the Sandiganbayan are enforceable anywhere in the Philippines. Those issued by the RTC and MTC are enforceable only within the judicial region to which they belong. Even though the writ of habeas corpus was issued by the CA but it designated the RTC as the court to which the writ is made returnable, the decision of the RTC is its own and not that of the CA. [In re Datukan Malang Salibo, (2015)]. Temporary release may constitute restraint 1. Where a person continued to be unlawfully denied one or more of his constitutional rights 2. Where there is present denial of due process

REMEDIAL LAW

3. Where the restraint is not merely involuntary but appear to be unnecessary 4. Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary [Moncupa v. Enrile, G.R. No. L-63345 (1986)] When detained person released General rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot Exception: Doctrine of Constructive Restraint – Restraints attached to release which precludes freedom of action, in which case the court can still inquire into the nature of the involuntary restraint Nature Not a suit between private parties, but an inquisition by the government, at the suggestion and instance of an individual, but still in the name and capacity of the sovereign. There can be no judgment entered against anybody since there is no real plaintiff and defendant [Alimpos v. CA, G.R. Nos. L-5040506 (1981)] Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. [Ching v. Insular Collector of Customs, G.R. No. 10972 (1916)] The question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts [Herrera, citing 4 Cranch, 75, 101] The writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose of relieving from illegal restraint [People v. Valte, G.R. No. L-18760 (1922)] Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ

Page 315 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

deals only with such radical defects as to render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings [People v. Valte, G.R. No. L18760 (1922)] Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into [Caballes v. CA, G.R. No. 163108 (2005)] WHC may be used with writ of certiorari for purposes of review The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts [Galvez v. CA, G.R. No. 114046 (1994)] WHC reaches the body and the jurisdictional matters, but not the record. Writ of certiorari reaches the record, but not the body [Galvez v. CA, G.R. No. 114046 (1994)] While generally, the WHC will not be granted when there is an adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-488] Overview of Procedure Application for the writ by petition [Sec. 3, Rule 102] ↓ Grant or disallowance of writ and issuance by court or judge [Secs. 4-5, Rule 102] ↓ Clerk of court issues the writ under the seal of court (in case of emergency, by the judge himself) [Sec. 5, Rule 102] Note: ROC (Secs. 5 and 12) does not fix the periods but uses “forthwith”. The special rules for WHC relating to minors designates periods. However, in practice and in jurisprudence, the writ must be issued within 24 hours.

↓ Service a. By whom: sheriff or other proper officer BUT in case of emergency where the judge himself issues the writ, the judge may depute any person to serve the writ [Sec. 5, Rule 102] b. How: leaving the original with the person to whom it is directed and preserving a copy on which to make return c. To whom: officer in custody or any officer (when in custody of person other than an officer) [Sec. 7, Rule 102] ↓ Writ executed and returned [Sec. 8, Rule 102] ↓ Hearing by the court (upon return) [Sec. 12, Rule 102] ↓ Execution of the writ a. Officer brings the person before the judge, and b. Officer makes the due return [Sec. 8, Rule 102]

1. Contents of the Petition Signed and verified petition must set forth: a. That the person in whose behalf the application is made is imprisoned or restrained of his liberty b. The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended c. The place where he is so imprisoned or restrained, if known d. Copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy

Page 316 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

If imprisonment or restraint is without any legal authority, such fact shall appear [Sec. 3, Rule 102] Who may apply a. The party for whose relief it is intended, or b. By some person on his behalf [Sec. 3, Rule 102] Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application [Velasco v. CA, G.R. No. 118644 (1995)]

2. Contents of the Return Form a. Written and signed by the person who makes it b. Sworn by the person who makes it if 1. The prisoner is not produced, and 2. In all other cases, unless the return is made and signed by a sworn public officer in his official capacity [Sec. 11, Rule 102] By whom made: The person or officer who has the person under restraint, or in whose custody the prisoner is found [Sec. 10, Rule 102] Contents a. Whether he has or has not the party in his custody or power, or under restraint b. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held c. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge d. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time,

REMEDIAL LAW

for what cause, and by what authority such transfer was made When the return considered evidence, and when only a plea Custody under warrant of Restraint is by commitment in private authority pursuance of law The return shall be considered only as a The return shall be plea of the facts considered prima therein set forth, facie evidence of and the party the cause of claiming the custody restraint must prove such facts [Sec. 13, Rule 102]

3. Peremptory Writ Preliminary Citation

and

Distinction between the writ and the privilege of the writ The writ of habeas corpus is a process that is tantamount to a summons to appear before the court issuing it for an inquiry into the cause of the restraint complained of. Its issuance does not amount to an adjudication of the issue of legality of the restraint. It is just an order to appear and explain. The privilege of the writ, on the other hand, is the writ issued to enforce the court’s decision on the merits finding the restraint illegal and directing the release from custody of the detained individual. Preliminary citation

Requires the respondent to appear and show cause why the peremptory writ should not be granted

Page 317 of 525

Peremptory writ A written document which unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified

U.P. LAW BOC

SPECIAL PROCEEDINGS

[Lee Yick Hon v. Collector of Customs, G.R. No. L-16779 (1921)] The order to present an individual before the court is a preliminary step in the hearing of the petition. This order is NOT a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the order to produce the body is not equivalent to a grant of the writ of habeas corpus. [In the Matter of the Petition for Habeas corpus of Alejano v. Cabuay, G.R. No. 160792 (2005)] Quantum of proof for the issuance or nonissuance of the privilege When respondents' defense to a petition for habeas corpus is that they released the detainees for whom the petition was filed, but the allegation of release is disputed by petitioners, and it is not denied that the detainees have not been seen or heard from since their supposed release, the respondents have the burden in law of proving by clear and convincing evidence that they released the detainees. [Dizon v. Eduardo, G.R. No. L-59118 (1988)]

4. When Not Applicable

Proper

or

When WHC is NOT proper a. For asserting or vindicating the denial of right to bail [Enrile v. Salazar, G.R. No. 92163 (1990)] b. Where the petitioner has the remedy of appeal or certiorari [Galvez v. CA, G.R. No. 114046 (1994)] c. For correcting errors in the appreciation of facts or law [Sotto v. Director of Prisons, G.R. No. L-18871 (1962) Exception: If error affects court’s jurisdiction making the judgment void [Herrera] d. For enforcing marital rights including venture and living in conjugal dwelling [Ilusorio v. Bildner, G.R. No. 139789 (2001)] e. When restrained under a lawful process or order of the court, petitioner’s remedy is to file a motion to quash the information or the

f.

REMEDIAL LAW

warrant of arrest [In the matter of the petition for habeas corpus of Datukan Malang Salibo v. Warden, G.R. No. 197597 (2015)] When detention was by virtue of a final judgment, the writ of habeas corpus may not issue [Adonis v. Tesoro, G.R. No. 182855 (2013)]

When WHC is proper a. Remedy for reviewing proceedings for deportation of aliens [De Bisschop v. Galang, G.R. No. L-18365 (1963)] b. Where the court has no jurisdiction to impose the sentence [Banayo v. President of San Pablo, G.R. No. 1430 (1903)] c. Where a person is deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. [In re Datukan Malang Salibo, (2015)].

5. When Writ Discharged

Disallowed

or

a. When restraint is by lawful order or process [Mangila v. Judge Pangilinan, G.R. No. 160739 (2013); Adonis v. Tesoro, G.R. No. 182855 (2013); Ampatuan v. Judge Macaraig, G.R. No. 182497 (2010)] b. The person alleged to be restrained of his liberty is in the custody of an officer 1. Under process issued by the court or judge or by virtue of a judgment or order of a court of record, and 2. Said court had jurisdiction to issue the process, render the judgment or make the order, or c. Jurisdiction appears after the writ is allowed despite any informality or defect in the process, judgment, or order [Sec. 4, Rule 102] d. If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death [Sec. 14, Rule 102] e. Where the person in whose behalf the writ is sought is out on bail [Mangila v. Pangilinan, G.R. No. 160739 (2013)]

Page 318 of 525

U.P. LAW BOC

f.

REMEDIAL LAW

SPECIAL PROCEEDINGS

Even if the arrest of a person is illegal, the following supervening events may bar release 1. Issuance of a judicial process [Sayo v. Chief of Police of Manila, G.R. No. L2128 (1948)] Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law [Malaloan v. CA, G.R. No. 104879 (1994)] 2. The filing of a complaint before a trial court which issued a hold departure order and denied motion to dismiss and to grant bail [Velasco v. CA, G.R. No. 118644(1995)] 3. Filing of an information for the offense for which the accused is detained bars the availability of WHC [Velasco v. CA, G.R. No. 118644 (1995)]

The writ of habeas corpus cannot be availed of in cases of detention by virtue of a judicial process or valid judgment. Exceptions where the writ may be availed of as a postconviction remedy: a. There has been a deprivation of a constitutional right resulting in the restraint of a person; b. The court had no jurisdiction to impose the sentence; or c. An excessive penalty has been imposed, as such sentence is void as to such excess. [Harden v. Director of Prisons, 81 Phil. 741; Go v. Dimagiba, G.R. No. 151876, (2005)]. What is to be inquired into is the legality of a person’s detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at in its inception illegal, it may no longer be illegal at the time of the filing of the application, by reason of supervening events [Ampatuan v. Macaraig, G.R. 182497 (2010)]

6. Distinguished From Writ of Amparo and Habeas Data Writ of habeas corpus

Extends to all cases of illegal confineme nt or detention (deprivatio n of liberty), or where rightful custody is withheld from person entitled thereto

Writ of amparo

Writ of habeas data

ONLY covers extralegal killings and enforced disappearanc es or threats thereof

Designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy but in relation to a threat to one’s right to privacy in regard to life, security, and liberty [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

See Comparative Table at the end of Writ of Habeas Data for a more comprehensive list of distinctions.

7. Writ of Habeas Corpus In Relation To Custody of Minors [A.M. No. 03-04-04-SC] Applicability Rule applies to petitions for custody of minors and writs of habeas corpus in relation thereto. The Rules of Court applies suppletorily [Sec. 1] In custody cases involving minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

Page 319 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

The grant of the writ depends on the concurrence of the following requisites: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody over the minor is being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondents [Masbata v. Relucio, G.R. No. 235498 (2018) Who may file Any person claiming rightful custody of a minor [Sec. 2] Where filed; where enforceable A verified petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found, or with the CA or the SC. If filed with the Family Court where the petitioner resides, or where the minor may be found, the writ is enforceable within the judicial region where the Family Court belongs. If filed with the CA or the SC, or with any of its members, the writ shall be enforceable anywhere in the Philippines. Upon issuance of the writ by the SC or CA, it may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found. If the presiding judge of the Family Court is absent, then the petition may be filed with a regular court, provided that the regular court shall refer the case to the Family Court as soon as the presiding judge returns to duty. If there are no Family Courts in the area, then the petition may be filed with the regular courts The writ is returnable to the Family Court, or to any regular court within the judicial region where the petitioner resides or where the minor may be found, for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20]

REMEDIAL LAW

Considering that the writ is made enforceable within a judicial region, petitions for the issuance of the writ of habeas corpus, whether they be filed under Rule 102 or pursuant to Section 20 of A.M. No. 03-04-04-SC, may therefore be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought [Tujan-Militante v. CadaDeapera, G.R. No. 210636 (2014)] Procedure A verified petition is filed alleging: a. The personal circumstances of the petitioner and of the respondent; b. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; c. The material operative facts constituting deprivation of custody; and d. Such other matters which are relevant to the custody of the minor The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally [Sec. 4] ↓ If sufficient in form and substance, court shall direct the clerk of court to issue summons, which shall be issued together with a copy of the petition personally on respondent [Sec. 5] ↓ Within 5 days the respondent shall file a verified answer [Sec. 7] Note: A motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer [Sec. 6] ↓ Upon filing of answer or expiration of period to file it, court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation at least 3 days before the scheduled pre-trial [Sec. 8]

Page 320 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

The court may also issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed: a. Both parents jointly; b. Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; c. The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; d. The eldest brother or sister over twentyone years of age, unless he or she is unfit or disqualified; e. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or f. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor [Sec. 13]

The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent/s, unless the court finds said parent/s unfit or disqualified [Sec. 15] ↓ Within 15 days after filing of answer or expiration of period to file it, the court shall issue an order 1. Fixing a date for the pre-trial conference; 2. Directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least 3 days before the date of pre-trial; and 3. Requiring the respondent to present the minor before the court Notice of order shall be served separately to the parties and their counsels. Pre-trial is mandatory [Sec. 9] ↓

Filing of pre-trial brief which shall contain the following: a. A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms; b. A concise statement of their respective claims together with the applicable laws and authorities; c. Admitted facts and proposed stipulations of facts; d. The disputed factual and legal issues; e. All the evidence to be presented, briefly stating or describing its nature and purpose; f. The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and g. Such other matters as the court may require to be included in the pre-trial brief Failure to file it or to comply with its required contents shall have the same effect as failure to appear at the pre-trial [Sec. 10] ↓

Pre-trial where the parties may agree on the custody of the minor. If parties disagree, court may refer to a mediator who has 5 days to effect an agreement between the parties. If still not settled, court to proceed with pre-trial conference

Failure to appear at pre-trial a. If petitioner fails to appear personally, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the nonappearance b. If respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented [Secs. 11-12] ↓

Page 321 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Nexus between right to privacy, and right to life, liberty or security The writ, however, will not issue on the basis merely of an alleged unauthorized access to information about the person. Availment of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)] It will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petition therefor are vague and doubtful [Manila Electric Company v. Lim, G.R. No. 184769 (2010)] Where the petitioner was not able to sufficiently allege that his right to privacy in life, liberty or security was or would be violated through the supposed reproduction and threatened dissemination of the subject sex video, the petition is dismissible. xxx As the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus between one’s privacy rights to the cogent rights to life, liberty or security are crucial in habeas data cases, so much so that a failure on either account certainly renders a habeas data petition dismissible [Lee v. Ilagan, G.R. No. 203254 (2014)]

3. Who May File Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by a. Any member of the immediate family of the aggrieved party, namely the spouse, children and parents, or b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph [Sec. 2]

REMEDIAL LAW

4. Contents of the Petition A verified written petition for a writ of habeas data should contain a. The personal circumstances of the petitioner and the respondent b. The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party c. The actions and recourses taken by the petitioner to secure the data or information d. The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known e. The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. f. In case of threats, the relief may include a prayer for an order enjoining the act complained of, and g. Such other relevant reliefs as are just and equitable [Sec. 6] Issuance of writ Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue [Sec. 7]

5. Contents of Return The respondent shall file a verified written return together with supporting affidavits. It shall contain, among others, the following: a. The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others b. In case of respondent in charge, in possession or in control of the data or information subject of the petition 1. disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection 2. the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information, and

Page 331 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

3. the currency and accuracy of the data or information held, and c. Other allegations relevant to the resolution of the proceeding A general denial of the allegations in the petition shall not be allowed [Sec. 10] When to file return Respondent must file a verified written return within 5 working days from service of the writ, together with supporting affidavits. The 5-day period may be reasonably extended by the Court for justifiable reasons [Sec. 10] Prohibited pleadings and motions a. Motion to dismiss b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings c. Dilatory motion for postponement d. Motion for a bill of particulars e. Counterclaim or cross-claim f. Third-party complaint g. Reply h. Motion to declare respondent in default i. Intervention j. Memorandum k. Motion for reconsideration of interlocutory orders or interim relief orders, and Petition for certiorari, mandamus or prohibition against any interlocutory order [Sec. 13] To whom returnable If issued by a. SC or any of its justices - before such Court or any justice thereof, or CA/SB or any of its justices, or the RTC of the place where the petitioner or respondent resides/has jurisdiction over the place where the data or information is gathered, stored or collected b. CA/SB or any of its justices - before such court or any justice thereof, or RTC (same with scenario SC issued and then returned in RTC) c. RTC - returnable before such court or judge [Sec. 4]

REMEDIAL LAW

Effect of failure to file return The court, justice, or judge shall proceed to hear the petition ex parte [Sec. 14] Procedure for hearing Hearing on the petition shall be summary. BUT The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties [Sec. 15]

6. Instances When Defenses May Be Heard in Chambers a. Where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or b. When the data or information cannot be divulged to the public due to its nature or privileged character [Sec. 12] Judgment The court shall render judgment within 10 days from the time of petition is submitted for decision [Sec. 16] Appeal Any party may appeal from the final judgment or order to the Supreme Court under Rule 45, 5 working days from the date of notice of the adverse judgment [Sec. 19]

7. Consolidation When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action [Sec. 21]

Page 332 of 525

U.P. LAW BOC

8. Effect of Action

SPECIAL PROCEEDINGS

Filing

Criminal

When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in a criminal case Procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data [Sec. 22]

9. Institution of Separate Action The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions [Sec. 20]

10. Quantum of Proof in Application for Issuance of Writ of Habeas Data If the allegations in the petition are proven by substantial evidence, the court shall (a) enjoin

REMEDIAL LAW

the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information AND (b) grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied [Sec. 16] An indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim [Roxas v. Arroyo, G.R. No. 189155 (2010)] Not only direct evidence, but circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the admissible evidence adduced [Saez v. Arroyo, G.R. No. 183533 (2012)] HOWEVER, the right to informational privacy may yield to an overriding legitimate state interest. [Gamboa v. Chan, G.R. No. 193636 (2012)

Page 333 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

REMEDIAL LAW

Comparative table of the writs of habeas corpus, amparo, and habeas data Habeas corpus Amparo Habeas data Involves the right to privacy in life, liberty a. All cases of illegal Involves right to life, or security violated or confinement and liberty and security threatened by an detention by which violated or threatened unlawful act or any person is with violation by an omission of a public deprived of his unlawful act or omission official or employee, or liberty b. Deprivation of of a public official or of a private individual or Nature, scope, rightful custody of employee or a private entity engaged in the function any person including individual or entity gathering, collecting or minors from the storing of data or person entitled Covers extralegal information regarding [Sec. 1] killings and enforced the person, family, disappearances or home and Actual violation before threats thereof [Sec. 1] correspondence of the writ issues. aggrieved party [Sec. 1] May not be suspended except in cases of Shall not diminish, Shall not diminish, invasion or rebellion increase or modify increase or modify Limitations when public safety substantive rights [Sec. substantive rights [Sec. requires it [Sec. 15, Art. 23] 23] III, 1987 Const.] Petition filed by the Any aggrieved party aggrieved party or by any may file a petition. qualified person or entity However, in cases of in the following order: extralegal killings and a. Any member of the immediate family enforced b. Any ascendant, disappearances, the descendant or petition may be filed by By a petition signed and collateral relative of (also successive): verified by the party for the aggrieved within a. Any member of the whose relief it is Who may file the 4th civil degree of immediate family intended, or by some affinity or of the aggrieved person on his behalf consanguinity b. Any ascendant, [Sec. 3] c. Any concerned descendant or citizen, organization, collateral relative association or of the aggrieved institution party within the fourth civil degree Filing by the aggrieved of consanguinity or suspends the right of all affinity others [Sec. 2] [Sec. 2] Page 334 of 525

U.P. LAW BOC

Where filed

Where enforceable

Where returnable

SPECIAL PROCEEDINGS

a. SC or any member thereof, on any day and at any time b. CA or any member thereof in instances authorized by law c. RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district [Sec. 2] d. MTC or first level courts in the absence of RTC judges in a judicial region [Sec. 35, B.P. 129] If SC/CA issued, anywhere in Philippines. If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region [Sec. 21, B.P. 129 which modified the term judicial district in Sec. 2, Rule 102 into judicial region] where the judge sits

If issued by: a. SC/CA, or a member thereof, returnable before such court or any member thereof or an RTC b. RTC, or a judge thereof, returnable before himself [Sec. 2]

REMEDIAL LAW

a. SB, CA, SC, or any justice of such courts b. RTC of place where the threat, act or omission was committed or any of its elements occurred [Sec. 3]

a. At the option of petitioner, RTC where: 1. Petitioner resides or 2. Respondent resides or 3. That which has jurisdiction over the place where the data or information is gathered, collected or stored b. SC, CA, or SB – If public data files of government offices [Sec. 3]

Anywhere in Philippines [Sec. 4]

Anywhere in Philippines [Sec. 3]

If issued by: a. SC or any of its justices, returnable before such court or any justice thereof, or before the CA/SB or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred b. CA/SB or any of their justices, returnable

If issued by: a. SC or any of its justices, before such Court or any justice thereof, or CA/SB or any of its justices, or the RTC of the place where the petitioner or respondent resides/has jurisdiction over the place where the data or

Page 335 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred c. RTC or any judge thereof, returnable before such court or judge [Sec. 3]

Upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires [Sec. 19]

Docket fees

Essential allegations/ Contents petition

of

Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth a. The person in whose behalf the application is made is imprisoned or restrained of his liberty b. Name of the person detaining another or assumed appellation c. Place where he is imprisoned or restrained of his liberty d. Cause of detention

Petitioner shall be exempted from the payment of the docket and other lawful fees Court, justice or judge shall docket the petition and act upon it immediately [Sec 4] Signed and verified and shall allege a. The personal circumstances of the petitioner b. Name or appellation and circumstances of the respondent c. The right to life, liberty, and security violated or threatened with violation d. The investigation conducted, if any, plus circumstances of each e. The actions and recourses taken by the petitioner f. Relief prayed for

Page 336 of 525

REMEDIAL LAW

information is gathered, stored or collected b. CA/SB or any of its justices, before such court or any justice thereof, or RTC (same with scenario SC issued and then returned in RTC) c. RTC, returnable before such court or judge [Sec. 4] None for indigent petitioner Petition shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from filing [Sec. 5] Verified and written petition shall contain a. Personal circumstances of petitioner and respondent b. Manner the right to privacy is violated or threatened and its effects c. Actions and recourses taken by the petitioner to secure the data or information d. The location of the files, registers, or databases, the government office,

U.P. LAW BOC

SPECIAL PROCEEDINGS

[Sec. 3] May include a general prayer for other just and equitable reliefs [Sec. 5]

When proper

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then: ● the clerk of court (CoC) shall issue the writ under the seal of the court or ● in case of emergency, the judge may issue the writ under his own hand, and may deputize any officer or person to serve it Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned [Sec. 5] Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) person deputed by the court or judge.

Service Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service.

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue: ● CoC shall issue the writ under the seal of the court or ● In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it [Sec. 6]

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on

Page 337 of 525

REMEDIAL LAW

and the person in charge or control e. The reliefs prayed for f. Such other relevant reliefs as are just and equitable [Sec. 6] Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue: ● CoC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance or ● In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it [Sec. 7] The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody [Sec. 7]

May or may not be an officer [Sec. 6]

Respondent

substituted service shall apply [Sec. 8]

service [Sec. 9]

shall

apply

Respondent is a public official or employee or private individual or entity [Sec. 1]

A public official or employee or a private individual or entity engaged in gathering, collecting or storing data [Sec. 1]

Respondent files return [Sec. 9]

Respondent files the return [Sec. 10]

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: ● the judge allowing the writ, or ● in his absence or disability, before some other judge of the same court How executed on the day specified in and returned the writ, unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein. Officer shall then make the due return of the writ, with the day and cause of the caption and restraint according to the command thereof [Sec. 8] When return

to

Contents return

the

file On the day specified on the writ [Sec. 8]

Within 5 working days after service of the writ [Sec. 9]

Same as Amparo [Sec. 10]

When the person to be produced is imprisoned or restrained by an

Within 5 working days after service of the writ, the respondent shall file a

a. Lawful defenses such as national security, state secrets, privileged

of

Page 338 of 525

U.P. LAW BOC

Formalities return

SPECIAL PROCEEDINGS

REMEDIAL LAW

officer, the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: a. Truth of custody/power over the aggrieved party b. If he has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held c. If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity d. If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made [Sec. 10]

verified written return together with supporting affidavits which shall, contain a. Lawful defenses b. The steps or actions taken to determine the fate or whereabouts of the aggrieved party c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party d. If the respondent is a public official or employee, the return shall further state acts 1. To verify identity of aggrieved party 2. To recover and preserve evidence 3. To identify and collect witness statements 4. To determine cause, manner, location, and time of death or disappearance 5. To identify and apprehend persons involved 6. To bring suspected offenders before a competent court [Sec.9]

communications, confidentiality of the source of information of media etc. b. In case of respondent in charge, in possession or in control of the data or information subject of the petition 1. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection 2. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information 3. The currency and accuracy of the data or information held 4. Other allegations relevant to the resolution of the proceeding [Sec.10]

Return or statement of shall be signed and sworn to by the person who makes it if the

Respondent shall file a verified written return together with supporting affidavits [Sec. 9]

Respondent shall file a verified written return together with

Page 339 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

prisoner is not produced, unless the return is made and signed by a sworn public officer in his official capacity [Sec. 11] a. CoC who refuses to issue the writ after allowance and demand, or b. A person to whom a writ is directed, who 1. neglects/refuses to obey or make return of the same according to the command thereof, 2. or makes false return, 3. or upon demand Penalties for made by or on refusing to behalf of the issue or serve prisoner, refuses OR for faulty to deliver to the return person demanding, within 6 hours a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be punished for contempt [Sec. 16]

REMEDIAL LAW

supporting [Sec. 10]

a. Contempt without prejudice to other disciplinary actions 1. CoC who refuses to issue the writ after its allowance, or 2. A deputized person who refuses to serve the writ [Sec. 7] b. Contempt punishable by imprisonment or a fine 1. A respondent who refuses to make a return, or 2. A respondent who makes a false return, or 3. Any person who otherwise disobeys or resist a lawful process or order of the court [Sec. 16]

affidavits

a. Contempt without prejudice to other disciplinary actions 1. CoC who refuses to issue the writ after its allowance, or 2. A deputized person who refuses to serve the writ [Sec. 8] b. Contempt punishable by imprisonment or a fine 1. A respondent who refuses to make a return, or 2. A respondent who makes a false return, or 3. Any person who otherwise disobeys or resist a lawful process or order of the court [Sec. 11]

No, not even on highly meritorious grounds. Is period of return extendable?

Is a general denial allowed?

Note: Motion for extension of time to file a return is a prohibited pleading [Sec. 11] Not allowed [Sec. 9] Page 340 of 525

Yes, for justifiable reasons [Sec. 10]

Not allowed [Sec. 10]

U.P. LAW BOC

SPECIAL PROCEEDINGS

Court or justice shall proceed to hear the petition ex parte [Sec. 12]

Effect of failure to file return

Summary. Summary.

Nature Hearing

of

Date and time of hearing

Prohibited pleadings

The writ does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful authority [Caballes v. CA, G.R. No. 163108 (2005)

However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at the possibility of obtaining stipulations and admissions from the parties. Same priority as petitions for Habeas corpus [Sec. 13]

As specified in the writ [Sec. 8]

As specified in the writ, not later than 7 days from the issuance of the writ [Sec. 6]

In custody of minors a motion to dismiss, except on the ground of lack of jurisdiction [Sec. 6, Rule on Custody of Minors and WHC]

a. Motion to dismiss b. Motion for extension of time to file opposition, affidavit, position paper and other pleadings c. Dilatory motion for postponement d. Motion for bill of particulars e. Counterclaims or cross-claims f. Third-party complaint g. Reply

Page 341 of 525

REMEDIAL LAW

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence [Sec. 14] Summary. With possibility of preliminary conference similar to Amparo [Sec. 14] Hearing in chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of privileged character [Sec. 12] As specified in the writ, not later than 10 working days from the date of issuance writ [Sec. 7]

Same as Amparo [Sec. 13]

U.P. LAW BOC

SPECIAL PROCEEDINGS

Burden of proof/Standard of diligence

Clear and convincing evidence [Dizon v. Eduardo, G.R. No. L59118 (1988)]

Presumption of official duty

Yes. If warrant of commitment is in pursuance with law, it serves as prima facie cause of restraint.

Interim reliefs

Judgment

Appeal

Within 48 hours from notice of the judgment of

h. Motion to declare respondent in default i. Intervention j. Memorandum k. Motion for reconsideration of interlocutory orders or interim relief orders l. Petition for certiorari, mandamus, or prohibition [Sec. 11] Substantial evidence a. if respondent is a private individual or entity, ordinary diligence b. if public official or employee, extraordinary diligence [Sec. 17] Public official or employee cannot invoke the presumption that official duty has been regularly performed [Sec. 17] Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant any of the following reliefs: a. temporary protection order b. inspection order c. production order d. witness protection order [Sec. 14] Within 10 days from the time the petition is submitted for decision [Sec. 18] 5 working days from the date of notice of adverse

Page 342 of 525

REMEDIAL LAW

Substantial evidence required to prove the allegations in the petition [Sec. 16]

Within 10 days from the time the petition is submitted for decision [Sec. 16] 5 working days from the date of notice of adverse judgment to

U.P. LAW BOC

final order appealed [Sec. 39, B.P. 129] Institution separate actions

judgment to the SC under Rule 45 [Sec. 19]

the SC under Rule 45 [Sec. 19]

of Not precluded Consolidated with a criminal action filed subsequent to the petition [Sec. 23] No more separate petition shall be filed. Reliefs available by motion in the criminal case [Sec. 22]

Consolidation of actions

Effect of filing criminal action

P.

REMEDIAL LAW

SPECIAL PROCEEDINGS

Consolidated with a criminal action filed subsequent to the petition [Sec. 21] Same as Amparo [Sec. 21]

CHANGE OF NAME

[Rule 103]

1. Differences Under Rule 103, R.A. No. 9048 and Rule 108 [De Leon 537-540] Rule 103

Scope

Nature of proceedings

Who may file

Initiatory pleading

Where to file

Change of full name or surname (substantial corrections)

Judicial: necessary

Hearing

A person desiring change one’s name

to

Signed and verified petition RTC of province where petitioner has been residing for 3 years prior to filing

R.A. 9048, as amended Change of first name or nickname, day or month (not year) of birthdate, gender, and correction of clerical errors of entries in Civil Registry

Rule 108 Correction of substantial errors or cancellation of entries in Civil Registry

Any person having direct and personal interest in correction of a clerical or typographical error in an entry and/or change of first name or nickname

Judicial: Hearing necessary; Adversarial since it involves substantial changes and affects the status of individuals Any person interested in any act, event, order or decree concerning civil status of persons which has been recorded in civil register

Sworn affidavit

Verified petition

Local civil registry office of city or municipality where record being

RTC of city or province where corresponding civil registry is located

Administrative: hearing required

Page 343 of 525

No

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

sought to be corrected or changed is kept If already migrated to another place within the Philippines: Local civil registrar of place where interested party is presently residing or domiciled Filipino citizens presently residing or domiciled in foreign countries: Philippine Consulate

a.

b.

Coverage

Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving change in sex, age, nationality and status of a person

Where to Appeal

Court of Appeals, under Rule 109

Correction of clerical or typographical errors, and Change of 1. First name or nickname 2. Day and month in date of birth, or 3. Sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry

Civil Registrar General

Page 344 of 525

a. b. c. d. e.

Births Marriage Deaths Legal separations Judgments of annulments of marriage f. Judgments declaring marriages void from the beginning g. Legitimations h. Adoptions i. Acknowledgments of natural children j. Naturalization k. Election, loss or recovery of citizenship l. Civil interdiction m. Judicial determination of filiation n. Voluntary emancipation of a minor o. Changes of name Court of Appeals, under Rule 109

U.P. LAW BOC

SPECIAL PROCEEDINGS

Procedure Filing of a signed and verified petition for change of name [Sec. 2] ↓ Court issues order fixing the date and place of hearing. Any interested person may oppose [Secs. 3-4] ↓ Publication of court order fixing date and place of hearing, at least once a week for 3 consecutive weeks in a newspaper of general circulation in the province [Sec. 3] ↓ Hearing on the petition [Sec. 4] ↓ Judgment granting/denying change of name [Sec. 5] ↓ Furnishing of judgment on the civil registrar, who shall forthwith enter the same [Sec. 6] What is changed The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that which the person is known in the community [No Yao Siong v. Republic, G.R. No. L-20306 (1966)] A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children [Secan Kok v. Republic, G.R. No. L27621 (1973)] Jurisdictional requirements An alien may petition for change of name but he must be domiciled in the Philippines [Ong Huan Tin v. Republic, G.R. No. L-20997 (1967)] Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition for hearing, the court should have required the petitioner to have the petition verified [Oshito v. Republic, G.R. No. L-21180 (1967)] All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if

REMEDIAL LAW

said aliases are contained in the body of the petition [Go Chiu Beng v. Republic, G.R. No. L29574 (1972)] Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. [Republic v. Cagandahan, G.R. No. 166676 (2008)] Change of name requires adversarial proceedings In order to justify a request for change of name, there must be a proper and compelling reason for the change and proof that the person requesting will be prejudiced by the use of his official name. To assess the sufficiency of the grounds invoked therefor, there must be adversarial proceedings [Republic v. Mercadera, G.R. No. 186027 (2010)]

2. Grounds for Change of Name a. The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce b. Change results as a legal consequence of legitimation c. The change will avoid confusion d. A sincere desire to adopt a Filipino name to erase signs of former alienage [Ang Chay v. Republic, G.R. No. L-28507 (1970)] e. Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage [Uy v. Republic, G.R. No. L-22712 (1965)] f. When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest [Republic v. Coseteng-Magpayo, G.R. No. 189476 (2011)] g. Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual

Page 345 of 525

U.P. LAW BOC

REMEDIAL LAW

SPECIAL PROCEEDINGS

development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed [Republic v. Cagandahan, G.R. No. 166676 (2008)] When not proper When what is sought to be changed relates to status. Rule 103 cannot be resorted to for expediency if the petition substantially seeks to change one’s status from legitimacy to illegitimacy. When a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 is mandated. [Republic v. Coseteng-Magpayo, G.R. No. 189476 (2011); Republic v. Cagandahan, G.R. No. 166676 (2008)] Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103 [Laperal v. Republic, G.R. No. L18008 (1962)] A person’s first name cannot be changed on the ground of sex reassignment [Silverio v. Republic, G.R. No. 184689 (2007)] A petition to correct an alleged erroneous entry in one’s birth certificate pertaining to the date of marriage of his parents, notwithstanding the fact that it qualifies as a substantial correction, may be filed under Rule 108 [Onde v. Office of the Local Civil Registrar, G.R. No. 197174 (2014)] It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding which is summary in nature. [Republic v. Kho, G.R. No. 170340 (2007), citing Republic v. Valencia, G.R. L32181 (1986)]

Q.

ABSENTEES

[Rule 107]

1. Purpose of the Rule The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. [In Re Petition for Declaration of Absence of Roberto L. Reyes, G.R. No. L-32036 (1986)] General rule: No independent action for declaration of presumption of death [In Re Petition for the Presumption of Death of Nicolai V. Szatraw, G.R. No. L-1780 (1948)] Exception: For purpose of contracting a second marriage [Art. 41, FC]

2. Who May File; When to File PETITION FOR APPOINTMENT PROVISIONAL REPRESENTATIVE

OF

A

When filed To provisionally represent absentee when a person a. Disappears from his domicile, his whereabouts being unknown, and b. Has not left an agent to administer his property or the power conferred upon the agent has expired [Sec. 1, Rule 107] Who may file a. Any interested party b. Relative c. Friend [Sec. 1, Rule 107]

Page 346 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF A TRUSTEE OR ADMINISTRATION When filed a. After 2 years 1. From disappearance of and without any news from absentee, or 2. Since the receipt of the last news about him b. After 5 years if the absentee left an administrator of his property [Sec. 2, Rule 107] Who may file a. Spouse present b. Heirs instituted in a will, who may present an authentic copy of the same c. Relatives who would succeed by the law of intestacy d. Those who have over the property of the absentee some right subordinated to the condition of his death [Sec. 2, Rule 107] Who may be appointed a. Spouse present shall be preferred when there is no legal separation b. Any competent person if absentee left no spouse, or spouse is incompetent [Sec. 7, Rule 107] Procedure Filing of a petition [Sec. 3] ↓ Court issues order fixing the date and place of hearing. Any interested person may oppose Copies of order shall be served upon the known heirs, legatees, devisees, creditors, and other interested persons, at least 10 days before day of hearing [Sec. 4-5] ↓ Publication of court order fixing date and place of hearing, at least once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where absentee resided [Sec. 3] ↓

REMEDIAL LAW

Hearing on the petition where petitioner must first show his compliance with Sec. 4 of serving copies of the notice to interested persons [Sec. 6] ↓ Judgment granting/denying the declaration of absence and appointment of trustee or administrator [Sec. 6] Note: in case of declaration of absence, judgment won’t take effect until 6 months after its publication in a newspaper of general circulation and in the Official Gazette ↓ Furnishing of judgment on the civil registrar, who shall forthwith enter the same [Sec. 6] Termination of administration Trusteeship or administration of property of absentee shall cease upon order of court if a. Absentee appears personally or through an agent b. Absentee’s death is proved and heirs appear c. Third person appears, showing by proper document that he acquired title over the property of the absentee [Sec. 8, Rule 107] Effects of reappearance If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents [Art. 392, NCC] The subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio [Art. 42, FC]

Page 347 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

R.

CANCELLATION OR CORRECTION OR ENTRIES IN THE CIVIL REGISTRY [Rule 108]

1. Entries Subject to Cancellation or Correction under Rule 108, in relation to R.A. No. 9048 Births Marriage Deaths Legal separations Judgments of annulments of marriage Judgments declaring marriages void from the beginning g. Legitimations h. Adoptions i. Acknowledgments of natural children j. Naturalization k. Election, loss or recovery of citizenship l. Civil interdiction m. Judicial determination of filiation n. Voluntary emancipation of a minor o. Changes of name [Sec. 2, Rule 108] a. b. c. d. e. f.

Cancellation or correction of entries in the civil registry requires adversarial proceedings Corrections of entries in the civil register including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, involve substantial alterations. Substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings [Onde v Office of the Local Civil Registrar of Las Piñas, G.R. No. 197174 (2014)] Substantial Change – change that affects the civil status, citizenship, or nationality of a party [Republic v. Bautista, G.R. No. L-35316 (1987)] One where the trial court has conducted proceedings where all relevant facts have been

REMEDIAL LAW

fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered [Eleosida v. Local Civil Registrar of Quezon City, G.R. No. 130277 (2002)] Parties to be impleaded a. Civil registrar, and b. All persons who have or claim any interest which would be affected [Sec. 3, Rule 108] Notice and publication of order fixing time and place for hearing Reasonable notice to persons named in the petition, and publication once a week for 3 consecutive weeks [Sec. 4, Rule 108] A reading of Sections 4 and 5 shows that the Rules mandate two sets of notices to different potential oppositors, one given to the persons named in the petition and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties (i.e. creditors). Summons must, therefore, be served not for the purpose of vesting the courts with jurisdiction but to comply with the requirements of fair play and due process to afford the person concerned the opportunity to protect his interest if he so chooses [Republic v. Lugsanay-Uy, G.R. No. 198010 (2013)] Opposition Period to file Within 15 days from notice of petition, or from last date of publication of notice [Sec. 5, Rule 108] May be filed by a. Civil registrar, and b. Any person having or claiming any interest under entry whose cancellation or correction is sought [Sec. 5, Rule 108] Effect of failure to implead and notify the affected or interested parties A petition which seeks the correction of entries in the birth certificate pertaining to first name,

Page 348 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

surname and citizenship is not merely clerical. When the corrections will result in changes in the status from “legitimate” to “illegitimate” and the citizenship from “Chinese” to “Filipino”, the petitioner should have impleaded not only the local civil registrar but also her parents and siblings as they are affected by the changes or corrections. It is clear therefore that when the petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations, including those on citizenship, legitimacy or paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 is mandated, failing in which the petition must be dismissed. [Republic v. Lagunsay Uy, G.R. No. 198010 (2013)] Such failure, however, may be excused a. where there is the publication of the notice of hearing, and earnest efforts were made by petitioners in bringing to court all possible interested parties b. where the interested parties themselves initiated the corrections proceedings c. when there is no actual or presumptive awareness of the existence of the interested parties, or d. when a party is inadvertently left out The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with [Republic v. Valencia, G.R. No. L-32181 (1986)] Grounds for cancellation or correction Upon good and valid grounds [Sec. 2] EFFECT OF R.A. 9048 The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the ROC, until and unless an

REMEDIAL LAW

administrative petition for change of name is first filed and subsequently denied. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial [Silverio v. Republic, G.R. No. 174689 (2007)] This does not mean, however, that the trial courts are divested of its authority or jurisdictions over petitions for correction of entries and change of first name or nickname. It only means that the local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname. RA 9048 was enacted to give the people an option to have the erroneous entries in their civil records corrected via an administrative proceeding before the local civil registrar that is less expensive and more expeditious. Nonetheless, it would be inappropriate to apply the procedure prescribed in RA 9048 to petitions for the correction of entries in the civil registry before the courts. The promulgation of rules of procedure for courts of justice is the exclusive domain of the Supreme Court [Re Final Report On The Judicial Audit Conducted At The Regional Trial Court, Br. 67, Paniqui, Tarlac, Adm. Matter No. 06-7-414-RTC (2007)] If one wants to either ● Change one’s first name or nickname and the ground therefor is one of those stated in Sec. 4, R.A. 9048, or ● Cancel and or correct any entries in the civil registry that is clearly a clerical or typographical error Then the REMEDY is R.A. 9048. If application is denied, one can either ● appeal the decision to the proper judicial court, or ● avail of Rule 103 or Rule 108, filing the appropriate petition before the proper court HOWEVER, if one wants to change one’s name (first name, surname or both) and the ground therefor is one of those allowed by law and jurisprudence, REMEDY is Rule 103.

Page 349 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

AND, if one wants to cancel and or correct any entries in the civil registry AND the correction and cancellation entails a modification or increase in substantive rights, REMEDY is Rule 108. R.A. 9048, as amended by R.A. 10172 Procedure Filing of petition for the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register, with its supporting documents [Sec. 5] ↓ The city or municipal civil registrar or the consul general shall examine the petition and its supporting documents [Sec. 6] ↓ If sufficient in form and substance, the examiner shall post the petition in a conspicuous place for 10 consecutive days [Sec 6] ↓ In case of a petition for change of first name, the petition has to be published once a week for 2 consecutive weeks in a newspaper of general circulation, with the petitioner also submitting a certification that he has no pending case or prior criminal record [Sec. 6] ↓ Within 5 working days after the completion of the posting and or publication requirement, the city or municipal civil registrar or the consul general shall render a decision [Sec. 6] Entries subject to change/cancellation or correction a. Clerical or typographical errors, and b. Change of 1. First name or nickname 2. Day and month in date of birth, or 3. Sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, can be corrected or changed by the concerned city or municipal civil registrar or consul general

REMEDIAL LAW

[Sec. 1] If the petition is granted The civil registrar general shall, within 10 working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds a. The error is not clerical or typographical b. The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person, or c. The basis used in changing the first name or nickname of a person does not fall under Sec. 4. The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within the period prescribed herein, such decision shall become final and executory. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court [Sec. 7] If the petition is denied The petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court [Sec. 7] R.A. 9048 proceeding merely a summary proceeding R.A. 9048 refers specifically to the administrative summary proceeding before the local civil registrar [Re Final Report On The Judicial Audit Conducted At The Regional Trial Court, Br. 67, Paniqui, Tarlac, Adm. Matter No. 06-7-414-RTC (2007)]

Page 350 of 525

U.P. LAW BOC

SPECIAL PROCEEDINGS

Ground for cancellation or correction Clerical or typographical errors Meaning of clerical or typographical error A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that a. Is harmless and innocuous, such as 1. Misspelled name or place of birth 2. Mistake in entry of day and month in date of birth or sex or the like b. Is visible to the eyes or obvious to the understanding c. Can be corrected or changed only by reference to other existing record or records d. Does not involve the change of nationality, age, status or sex of the petitioner [Sec. 2(3), R.A. 9048, as amended] Ground for change of first name or nickname: a. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce b. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community, or c. The change will avoid confusion [Sec. 4]

APPEALS IN SPECIAL PROCEEDINGS S.

[Rule 109]

1. Judgments and Orders for Which Appeal May Be Taken An appeal may be taken from an order or judgement which: a. allows or disallows a will b. determines who are the lawful heirs or the distributive share of the estate to which such heir is entitled c. allows or disallows any claim against the estate or any claim presented on behalf of the estate to offset a claim against it.

REMEDIAL LAW

d. settles the account of an executor, administrator, trustee, or guardian. e. constitutes in estate proceedings or those relating to the administration of a trustee or a guardian, a final determination in the lower court of the rights of the party appealing Exception: no appeal allowed from the appointment of a special administrator f.

is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing Exception: unless order is a denial of motion for new trial or reconsideration

Order of probate court that certain properties should be included in the inventory is interlocutory and cannot be appealed under Section 1, Rule 109. Remedy is certiorari under Rule 65. [Aranas v. Mercado, G.R. No. 156407 (2014)].

2. When to Appeal In certain special proceedings, appeal may be taken from one aspect of the case while the court proceeds to hear another aspect of the case. Example: An appeal may be taken from an order admitting the will to probate, while the court proceeds to resolve its intrinsic validity. Where a court issues an order granting letters testamentary in solidum, it cannot be questioned by filing a petition for review on certiorari under Rule 45. In that case, the appeal should have been brought up to the CA under Rule 45, pursuant to Rule 109. [Republic v. Marcos, (2009)]. Summary of Periods to Appeal Deadline to file an Proceeding appeal Special proceedings Notice of appeal: 15 days from notice of the order or

Page 351 of 525

U.P. LAW BOC

Writ of corpus

habeas

Writ of amparo

Writ of habeas data

SPECIAL PROCEEDINGS

REMEDIAL LAW

judgement appealed from

taken for purposes of further remedies the parties may avail of.

Record on appeal: 30 days from notice of the order or judgement appealed from if the case involves multiple appeals

Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has been adjudged with finality by the lower court. [Briones v. Henson-Cruz, G.R. No. 159130 (2008)

[Sec. 3, Rule 41] 48 hours from notice of judgement [Sec. 3, Rule 41] 5 working days from notice of judgement [Sec. 19, A.M. No. 07-9-12-SC] 5 working days from notice of judgement [Sec. 19, A.M. No. 08-1-16-SC]

When record on appeal required The test for determining if a record on appeal is required is to ask if the court a quo notwithstanding the appeal still needs to hold on to the original record since it has not fully disposed of or decided the case. [Republic v. Nishina, G.R. No. 186053 (2010)]

3. Modes of Appeal Rules 40, 41, 42, and 45 apply in conformity with Sec. 2, Rule 72 on the applicability of rules of civil actions. If ordinary appeal under Rule 40 or 41, and the special proceedings are subject to multiple appeals, appeal period is 30 days where both notice of appeal and record on appeal are required. [De Leon & Wilwayco (2015)]

4. Rule on Advance Distribution Although it is within the trial court’s discretion whether or not to permit the advance distribution of the estate, its exercise of discretion is qualified by the following: 1. Only part of the estate not affected by a pending controversy or appeal may be the subject of advance distribution [Sec. 2, Rule 109]; and 2. The distributes must post a bond, fixed by the court, conditioned for the payment of outstanding obligations of the estate [Sec. 1, par. 2, Rule 90]

Multiple appeals Permitted in special proceedings as practical recognition of the possibility that material issues may be finally determined at various stages of the special proceedings. [Aranas v. Mercado, G.R. No. 156407 (2014)] In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was Page 352 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

CRIMINAL PROCEDURE REMEDIAL LAW

Page 353 of 525

REMEDIAL LAW

U.P. LAW BOC

III.

REMEDIAL LAW

CRIMINAL PROCEDURE

CRIMINAL PROCEDURE

A. GENERAL MATTERS 1. Jurisdiction over Subject Matter and Jurisdiction over Person of the Accused Distinguished Jurisdiction over subject matter Definition

Jurisdiction over person of the accused

The authority of the court… …to hear and decide the case. Simply put, it means jurisdiction over the offense charged

…over the charged

person

Territorial jurisdiction

The place of the commission of the offense charged determines venue of the action, and is an essential element of jurisdiction [Alfelor v. Intia G.R. No. L-27590 (1976)] Exception: Those crimes mentioned in Art. 2, RPC are not covered by this rule

How acquired

Conferred by law; cannot be conferred by the parties Jurisdiction cannot be fixed by the will of the parties; nor acquired through waiver, or enlarged by the parties’ omission; nor conferred by acquiescence of the court, or by mere administrative policy

Acquired through: 1. Arrest of the accused 2. Consent of the accused 3. Waiver of objections as when the accused enters his plea 4. Voluntary submission of the accused to the jurisdiction of the court.

Page 354 of 525

The offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of said court. [Uy v. CA, G.R. No. 119000 (1997)] One cannot be held to answer for any crime he committed except in the jurisdiction where he committed said crime [People v. Mercado,

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

of any trial court [Cudia v. Court of Appeals, G.R. No. 110315 (1998)]

G.R. No. (1950)]

L-2760

Note: there is no voluntary appearance in case of special appearance to challenge the jurisdiction of the court [Garcia v. Sandiganbayan, G.R. Nos. 170122 & 171381 (2009)]

How to determine which court has jurisdiction

Jurisdiction is determined by the allegations in the complaint or information [Avecilla v. People, G.R. No. 46370 (1992)].

N/A

Jurisdiction is determined by the allegations in the complaint or information [Avecilla v. People, G.R. No. 46370 (1992)].

Applicable law to determine jurisdiction

Jurisdiction is determined by the procedural law in force at the time of the institution of the action; not the law in force at the time of the commission of the crime [People v. Lagon, G.R. No. 45815 (1990)]

N/A

N/A

In determining whether the court has jurisdiction over an offense, the penalty to be considered is that which may, under law, be imposed for the offense and not

Page 355 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

the actual penalty imposed after trial

Waiver of objection

Cannot be waived by the parties

Right to object may be waived (e.g., failure of the accused to object in time)

Principle of adherence of jurisdiction/continuing jurisdiction General rule: Once a court acquires jurisdiction over a controversy, it shall continue to exercise it until final determination of the case [Mendoza v. Comelec, G.R. No. 188308 (2009)]. It is not affected by: 1. A valid amendment of the information [People v. Chupeco, G.R. No. L-19568 (1964)]; or 2. Subsequent legislation vesting jurisdiction in another tribunal.

Cannot be waived by the parties

Exception: When subsequent legislation: 1. Expressly provides, or 2. Is clearly intended to apply to actions pending before its enactment [Palana v. People, G. R. No. 149995 (2007)] Dismissal of the case on jurisdictional grounds General rule: An objection on the ground that the court lacks jurisdiction over the subject matter may be raised or considered motu proprio by the court at any stage of the proceedings or appeal Exception: Estoppel by reasons of public policy, as when the party has initially invoked such jurisdiction [Tijam v. Sibonghanoy, G.R. no. L-21450 (1968)]

Page 356 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

2. Requisites for Exercise of Criminal Jurisdiction Criminal jurisdiction The authority to hear and try a particular offense and impose the punishment for it [People v. Mariano, G.R. No. L-40527 (1976)] Requisites for a court to exercise jurisdiction: a. Subject matter jurisdiction: the offense is one it is authorized by law to take cognizance of b. Territorial jurisdiction: the offense has been committed within its territorial jurisdiction c. Jurisdiction over the person: the person charged must have been brought before it for trial, forcibly by arrest or upon his voluntary submission to the court. All three requisites must concur before a court can acquire jurisdiction [Antiporda v. Garchitorena, G.R. No. 133289 (1999), citing Arula v. Espino, G.R. No. L-28949 (1969)].

3. Jurisdiction Courts

of

Criminal

a. MTC/MeTC/MCTC Jurisdiction Except those cases falling within the jurisdiction of higher courts, these courts shall have exclusive original jurisdiction over: 1. Violations of city or municipal ordinances committed within their territorial jurisdiction [Sec. 32, B.P. 129, as amended] 2. Offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable or accessory penalties, including civil liability irrespective of its kind, nature, or value [Sec. 32, B.P. 129]

REMEDIAL LAW

3. Offenses involving damage to property through criminal negligence [Sec. 32, B.P. 129] 4. Summary procedure in certain cases a. Violations of traffic laws, rules and regulations b. Violations of the rental law c. B.P. 22 cases d. Violation of municipal and city ordinances e. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both f. Offenses involving damage to property through criminal negligence where the imposable penalty does not exceed P10,000 [Sec. 1(b), 1991 Rules on Summary Procedure] 5. Special jurisdiction to decide on applications for bail in the absence of all RTC judges in a province or city [Sec. 35, B.P. 129, as amended by R.A. 7691]. Concurrent original jurisdiction with RTCs over violations of R.A. 7610 (Child Abuse Act) in cities or provinces where there are no family courts yet, depending on the penalties prescribed for the offense charged [Sec. 16-A, R.A. 7610, as amended by R.A. 9231] SC Admin Circ. No. 09-94 (1994): # The provisions of Sec. 32(2) of B.P. 129, apply only to offenses punishable by imprisonment or fine, or both, in which cases the amount of the fine is disregarded in determining the jurisdiction of the court. # In cases where the law only imposes the fine, and such fine exceeds P4,000, the RTC shall have jurisdiction, including offenses committed by public officers and employees in relation to their office

Page 357 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

b. RTC

REMEDIAL LAW

c. Sandiganbayan

Jurisdiction Exclusive original jurisdiction in criminal cases not within the exclusive jurisdiction of any court, tribunal or body, EXCEPT those under the exclusive and concurrent jurisdiction of the Sandiganbayan [Sec. 20, B.P. 129] Appellate jurisdiction over cases decided by first-level courts within its territorial jurisdiction [Sec. 22, B.P. 129, as amended by R.A. 7691] Jurisdiction over criminal cases under specific laws such as: 1. Criminal and civil aspects of written defamation [Art. 360, RPC] 2. Criminal cases commenced by information against a child upon determination of probable cause by the prosecutor [Sec. 33, R.A. 9344, as amended by R.A. 10630] where there are no family courts [Sec. 4(g), R.A. 9344] 3. Violence against women and children, in the absence of an RTC designated as a Family Court where the offense was committed [R.A. 9262 (Anti-VAWC Act)] 4. Designated special courts over cases in violation of R.A. 9165 (Dangerous Drugs Act) [Sec. 90, R.A. 9165] 5. Violations of intellectual property rights [SC Admin-Circ. No. 03-03 (2003)] 6. Money laundering cases [Sec. 5, R.A. 9160] EXCEPT those committed by public officers and private persons in conspiracy with such public officers, as jurisdiction is with the Sandiganbayan For offenses cognizable by the Sandiganbayan where the information a) does not allege any damage to the government or any bribery; or b) the alleged damage to the government or the bribery arising from the or closely related transactions are of an amount not exceeding P1 million [Sec. 4, P.D. 1606, as amended by R.A. 10660]

Jurisdiction 1. Violations of R.A. 3019 2. Violations of R.A. 1379 3. Violations of Book 2, Title VII, Section 2, Chapter 2 of the RPC (Indirect Bribery, Corruption of Public officials, etc.), where one or more of the accused are officials occupying the following positions in the government, at the time of the commission of the offense: a. Officials of the executive branch occupying the positions of regional direction and higher, otherwise classified as Grade “27” and higher of R.A. 6758 (see enumeration in RA 10660) b. Members of Congress and officials thereof classified as “Grade 27” and up under R.A. 6758 (see enumeration in RA 10660) 4. Other offenses, simple or complex, with other crimes committed by the abovementioned public officials and employees in relation to their office. 5. Criminal cases filed pursuant to and in connection with EO 1, 2, 14, 14-A (1986) An offense is deemed committed in relation to his office when: 1. The office is a constituent element of the crime as defined in the statute 2. The offense be intimately connected with the office of the offender 3. The fact that the offense was committed in relation to the office must be alleged in the Information [People v. Magallanes, G.R. No. 118013-14 (1995)] Failure to allege that the offense was committed in relation to the office or was necessarily connected with the discharge of their functions vests jurisdiction with the RTC. [People v. Cawaling G.R. No. 117970 (1998)]

Page 358 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

d. Military Courts General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, regardless of who the coaccused or victims are. Exception: When the offense is serviceoriented, it will be tried by the court martial; Provided, that the President may, in the interest of justice, order or direct, at any time before arraignment, that any such crimes or offenses be tried by the proper civil courts. [Sec. 1, R.A. 7055]

4. When Injunction May Be Issued To Restrain Criminal Prosecution General rule: Criminal prosecution may NOT be blocked by court prohibition or injunction [Brocka v. Enrile, G.R. No. 69863-65 (1990)] for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society [Domingo v. Sandiganbayan, G.R. No. 109376 (2000)] Exceptions 1. To afford adequate protection to the constitutional rights of the accused 2. For the orderly administration of justice 3. To avoid oppression or multiplicity of suits 4. Where there is a prejudicial question which is sub judice 5. Where acts of the officer are without or in excess of authority 6. When the prosecution is under an invalid law, ordinance or regulation 7. When double jeopardy is clearly apparent 8. When the court has no jurisdiction over the offense 9. When it is a case of persecution rather than prosecution

10. Where the charges are manifestly false and motivated by vengeance 11. Where there is no prima facie case and a motion to quash on that ground has been denied 12. Where preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners [Brocka v. Enrile, G.R. No. 69863-65 (1990)] 13. To prevent the use of the strong arm of the law in an oppressive and vindictive manner [Hernandez v. Albano, G.R. No. L-19272 (1967)]

B.

PROSECUTION OF OFFENSES

1. Criminal Instituted

Actions;

How

The institution of a criminal action generally depends upon whether the offense is one which requires a preliminary investigation (PI) or not: Offenses requiring PI

Other offenses

Nature of Offenses Those where the penalty prescribed by law is at least 4 years, 2 months and 1 day [Sec. 1, Rule 112, as amended by A.M. No. 05-8-26-SC]

Page 359 of 525

Offenses where the penalty prescribed by law is less than 4 years, 2 months, and 1 day

How Instituted

U.P. LAW BOC

By filing the complaint with the appropriate officer for PI [Sec. 1(a), Rule 110]

CRIMINAL PROCEDURE

a. Filed directly with the MTCs and MCTCs; or b. Filed with the office of the prosecutor [Sec. 1(b), Rule 110] c. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters [Sec. 1(b), Rule 110]

Effect of institution The institution of a criminal action shall interrupt the running of the prescription period of the offense charged UNLESS otherwise provided in special laws [Sec. 1, Rule 110] Falling under the authority of the lupon While the dispute is under mediation, conciliation or arbitration, the prescriptive periods shall be interrupted upon the filing of the complaint with the Punong Barangay [Sec. 410, LGC] Limitation: Interruption shall not exceed 60 days from filing of complaint with the punong barangay [Sec. 410(c), LGC]. The prescriptive periods shall resume upon receipt by the complainant 1. of the complaint or 2. the certificate of repudiation or 3. of the certification to file action issued by the Lupon or Pangkat Secretary

REMEDIAL LAW

Criminal cases required to be filed with lupon Offenses punishable by imprisonment not exceeding one (1) year or a fine not exceeding P5,000 [Sec. 408(c), LGC] and where the parties actually reside in the same city or municipality Exceptions, when [PGP-ODP]: 1. There is no Private offended party [Sec. 408(d), LGC] 2. One party is the Government or any subdivision thereof [Sec. 408(a), LGC]; 3. One party is a Public officer or employee, and the dispute relates to the performance of his Official functions [Sec. 408(b), LGC]; 4. Parties actually reside in Different cities or municipalities, EXCEPT where such barangays adjoin each other AND the parties agree to amicable settlement by an appropriate lupon [Sec. 408(f), LGC]; 5. Accused is under Police custody or detention

2. Who May File; Crimes That Cannot be Prosecuted De Officio General rule: Complaint or Information may only be filed or dismissed if there is prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy [Sec. 4, Rule 112, as amended by A.M. 05-8-26-SC] . Note: Secs. 3 and 4, Rule 110 discuss who should subscribe (not file) the complaint or information. Exceptions: Crimes that cannot prosecuted de oficio [ACSAAD]: 1. Adultery 2. Concubinage 3. Seduction 4. Abduction 5. Acts of Lasciviousness

Page 360 of 525

be

U.P. LAW BOC

CRIMINAL PROCEDURE

6. Defamation Rationale This was imposed out of consideration for the aggrieved party who might prefer to suffer the

Adultery and Concubinage

REMEDIAL LAW

outrage in silence rather than go through with the scandal of a public trial [People v. Yparraguirre, G.R. No. 124391 (2000)]

Seduction, Abduction, Acts of Lasciviousness

Defamation, which consists of imputation of any of the foregoing offenses

Who Can File Offended Spouse

Offended party, it includes: a. Minors, even independently of those in item b, except if incompetent or incapable b. Parents, grandparents, guardian – right to file shall be exclusive of all other persons and shall be exercised successively in this order c. State – Only if the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian

Offended Party

Requirements a. Must include both guilty parties, if both alive b. Must not have consented to the offense or pardoned the offenders c. c. Marital relationship must still be subsisting [Pilapil v. Ibay-Somera, G.R. No. 80116, (1989)].

The offender must not have been pardoned by any of a and b in the preceding column

Page 361 of 525

None

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

EVENTS THAT MAY OCCUR AFTER THE FILING OF THE CASE a. Death of offended party

[People v. de Guzman, [G.R. No. 185843 (2010)] Pardon distinguished from Consent

Death after filing the complaint would not deprive the court of jurisdiction. The death of the offended party in private crimes is essential solely for the initiation of the action. [People v. Diego, G.R. No. 1626 (1937)] It is not one of the causes for extinguishment of criminal liability enumerated in Art. 89 of the Revised Penal Code. b. Desistance by offended party Desistance does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity [People v. Amaca, G.R. No. 110129 (1995)]. c. Pardon by offended party General rule: A pardon by the offended party does not extinguish criminal action but civil liability with regard to the interest of the injured party is extinguished by his express waiver [Art. 23, RPC]. If there is more than one accused, the pardon must be extended to all offenders. Exception: Seduction, abduction and acts of lasciviousness shall not be prosecuted if the offender has been expressly pardoned by the offended party or her parents, grandparents or guardian [Art. 344, RPC] [Sec. 5, Rule 110] When should pardon be done General rule: Pardon must be made before the filing of the criminal complaint in court [People v. Bonaagua, G.R. No. 18897 (2011)] Exception: In rape, marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence

Pardon

Consent Definition

Refers to past acts

Refers to future acts

In order to absolve the accused from liability, it must be extended to both offenders

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse

When given Given after the commission of the crime but before the institution of the criminal action

Given before the commission of the crime

In adultery and concubinage May be done expressly or impliedly There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. There is no implied pardon when the wife continues living in the conjugal home after her arrest only in order to take care

Page 362 of 525

Can only be done expressly

U.P. LAW BOC

CRIMINAL PROCEDURE

of their children [Ligtas v. CA, G.R. No. L-47498 (1987)]]

In Seduction, Abduction and Acts of Lasciviousness Must be expressly made

Offended party cannot consent to the crime

REMEDIAL LAW

e. File criminal action against the prosecutor for negligence to prosecute or tolerance of the crime [Art 208, RPC] with the corresponding civil action for damages for failure to render service by a public officer [Art 27, NCC]

3. Criminal Enjoined

Actions,

When

See When Injunction May Be Issued To Restrain Criminal Prosecution, supra.

d. Subsequent marriage

4. Control of Prosecution

General rule: In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him, together with the co-principals, accomplices, and accessories after the fact of the abovementioned crimes [Art. 344, RPC] Exceptions: 1. Marriage was invalid or contracted in bad faith to escape criminal liability [People v. Santiago, G.R. No. L-27972 (1927)] 2. In multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned [People v. Bernardo (38 O.G. 3479)] Remedies if the prosecutor refuses to file an information a. Action for mandamus to compel the prosecutor to charge the accused, in case of grave abuse of discretion b. Lodge a complaint before the court having jurisdiction over the offense; c. Take up the matter with the Department of Justice under the appropriate administrative procedure; d. Institute an administrative charge against the erring prosecutor; and

General rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. Exception: A private prosecutor may be authorized in writing by the Chief of the Prosecution office or the Regional State Prosecutor to prosecute the case subject to the approval of the court [Sec. 5, Rule 110, as amended by A.M. No. 02-2-07-SC (2002)] Conditions for a private prosecutor to prosecute a criminal action a. The public prosecutor has heavy work schedule or there is no public prosecutor assigned in the province or the city b. The private prosecutor is authorized in writing by the Chief of the Prosecutor office or the Regional State Prosecutor c. The authority of the private prosecutor was approved by the Court d. The private prosecutor shall continue to prosecute the case up to the end of the trial unless the authority is revoked or otherwise withdrawn. [Sec. 5, Rule 110, A.M. No. 022-07-SC (2002)] e. In case of withdrawal or revocation of authority, the same must be approved by the court [DOJ Memorandum Circular No. 25 (2002)]

Page 363 of 525

U.P. LAW BOC

f.

CRIMINAL PROCEDURE

The prosecution of the civil liability has not been reserved or waived.

Rule in Cases filed before MTCs/MCTCs When the prosecutor assigned thereto or to the case is not available, the following may prosecute the case: a. Offended party b. Any peace officer; or c. Public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the RTC [OCA Circular No. 3902, stating in toto Sec. 5, Rule 110, as amended by A.M. No. 02-2-07-SC] Cases in the Court of Appeals and the Supreme Court General rule: Only the Solicitor General may bring or defend actions in behalf of the Republic of the Philippines, or represent the People of the Philippines or State in criminal proceedings before the SC and the CA [Cariño v. De Castro, G.R. No. 176084 (2008)] Exceptions: a. When there is denial of due process of law to the prosecution and the State or its agents refuse to act on the case to the prejudice of the State and the private offended party [Cariño v. De Castro, G.R. No. 176084 (2008)], and b. When the private offended party questions the civil aspect of a decision of a lower court [Heirs of Delgado v. Gonzalez, G.R. No. 184337 (2009)] Cases elevated to the Sandiganbayan and the Supreme Court The Office of the Ombudsman, through the Special Prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1,2, 14, 14-A as these are under the PCGG [Sec. 4, P.D. 1606, as amended by R.A. 10660]

REMEDIAL LAW

EXTENT OF PROSECUTOR’S CONTROL Prior to filing

After filing

Matters which are within the control of the prosecutor 1. What case to file 2. Whom to prosecute 3. Manner of prosecution 4. Right to withdraw information before arraignment even without notice and hearing [Crespo v. Mogul, G.R. No. L-53373 (1987)]

The following matters are already within the control of the court and no longer within the discretion of the prosecutor: 1. Suspension of arraignment [Sec 1, Rule 116] 2. Granting a reinvestigation [Levista v. Alameda, G.R. No. 182677 (2010)] 3. Dismissal of the case [Crespo v. Mogul, G.R. No. L-53373 (1987)] 4. Downgrading of the offense or dropping of accused before plea [Sec. 14(b), Rule 110]

Once a complaint or information is filed in court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. A motion to dismiss should be filed with the court, which has the option to grant or deny it [Crespo v. Mogul, G.R. No. L-53373 (1987)]

Page 364 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

Limitations on the court’s control a. The prosecution is entitled to notice of hearing; b. The court must suspend arraignment, upon motion by the proper party, when a petition for review of the resolution of the prosecutor is pending at either the DOJ, or the OP; provided, that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office [Sec. 11(c), Rule 116] c. The court must make its own independent evaluation or assessment of the merits of the case (e.g. on a motion to dismiss [should be to quash]). Otherwise, there will be a violation of private complainant’s right to due process and erroneous exercise of judicial discretion [Martinez v. CA, [G.R. No. L-112387 (1994)] Effect of lack of presence of the fiscal Although the private prosecutor had previously been authorized to present the evidence for the prosecution, the absence of the City Fiscal at the hearing means that the prosecution of the case was NOT under the control of the City Fiscal; thus, it follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People v. Beriales, G.R. No. L-39962 (1976)]

5. Sufficiency of Complaint or Information Complaint

Information Definition

Sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated [Sec. 3, Rule 110]

Accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court [Sec. 4, Rule 110]

Who subscribes Subscribed by: a. offended party; b. any peace officer; or c. other officer charged with the enforcement of the law violated.

Subscribed by the prosecutor *Indispensable requirement.

Where filed

Note: OCA Circular No. 39-02 [stating in toto Sec. 5, Rule 110, as amended by A.M. No. 022-07-SC]: However, in MTCs or MCTCs when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the RTC.

May be filed in court or the prosecutor’s office [Sec. 1, Rule 110]

Filed with the court

Oath Requirement Must be “sworn,” hence under oath

Page 365 of 525

Requires no oath *Fiscal filing the information is acting under the oath of his office

U.P. LAW BOC

CRIMINAL PROCEDURE

[NOTE: The complaint contemplated under Sec. 3 differs from the complaint filed in the prosecutor’s office for purposes of preliminary investigation.] CONTENT REQUIRED FOR VALIDITY OF AN INFORMATION A complaint or information is sufficient if it states the [ADA-ODP]: a. Name and surname of the Accused; or any appellation or nickname by which he is known or had been known i. When an offense is committed by more than one person, all of them shall be included in the complaint or information [Sec. 6, Rule 110] b. Designation of the offense given by the statute c. Acts or Omissions complained of as constituting the offense d. Name of the Offended party e. Approximate Date of the commission of the offense, and f. Place where the offense was committed FORM REQUIRED FOR VALIDITY a. In writing b. In the name of the People of the Philippines c. Against all persons responsible for the offense involved [Sec. 2, Rule 110] Test for sufficiency of the information Whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty of the offense charged [Lazarte v. Sandiganbayan, G.R. No. 180122 (2009)] General rule: A defective information cannot support a judgment of conviction Exception: Where the defect in the information was cured by evidence during the trial and no objection appears to have been raised [Abunado v. People, G.R. No. 159218 (2004)]

REMEDIAL LAW

Waiver of objection to sufficiency General rule: An accused is deemed to have waived his right to assail sufficiency of the information when he voluntarily entered a plea during arraignment and participated in the trial [Frias v. People, G.R. No. 171437 (2007)]. Objections relating to the form of the complaint or information cannot be made for the first time on appeal. The accused should move for a bill of particulars or for quashal of information before arraignment, otherwise he is deemed to have waived his objections to such a defect [People v. Teodoro, G.R. No. 172372 (2009)] Exception: When the defect consists in the lack of authority of the prosecutor who filed the information, as such defect would be jurisdictional. [Sec. 9, Rule 117]

a. Name of the accused The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such name shall be inserted in the complaint or information and record. [Sec. 7, Rule 110] John Doe Informations When the information does not sufficiently describe the accused and all are described as “John Does,” the arrest warrants against them are void. [Pangandaman v. Casar, G.R. No. L71782 (1988)] Mistake in the name of the accused Mistake does not necessarily amount to a mistake in the identity of the accused

Page 366 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. [People v. Amodia, G.R. No. 173791 (2009)]

b. Name of the offended party The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. a. In crimes against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged b. If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record c. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or may be identified, without need of averring that it is a juridical person. [Sec. 12, Rule 110]

c. Date of commission General rule: It is not necessary to state the precise date the offense was committed. The offense may be alleged to have been committed on a date as near as possible to the actual date of the commission. Exception: When it is an essential element of the offense (e.g., abortion, bigamy) [Sec. 11, Rule 110] Variance in alleged date from proven in trial General rule: Allegation in an information of a date different from the one established during trial is not fatal to the prosecution. It is just deemed supplanted by evidence presented

REMEDIAL LAW

during trial or may even be corrected by a formal amendment of the information. Exception: Fatal when discrepancy is so great that it induces the perception that the information and the evidence are no longer pertaining to one and the same offense. The defective allegation in the information is struck down for violating the right of the accused to be informed [People v. Delfin, G.R. No. 201572 (2014)]

d. Place of commission General rule: The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court. Exception: If the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification [Sec. 10, Rule 110]

6. Designation of Offense The designation of the offense given by the statute must be stated in the complaint or information with the averment of acts or omissions constituting the offense and the attendant qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. [Sec. 8, Rule 110] Enough to describe with sufficient particularity Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to make sure the accused fully understands what he is being charged with [Guy v. People, G.R. No. 16679496 (2009)]

Page 367 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Allegations in the complaint prevail: # Over the designation of the offense: The facts, acts or omissions alleged and not its title, determine the nature of the crime. The designation is only the prosecutor’s conclusion [People v. Magdowa, G.R. No. 48457 (1941)] # Over reference to the section or subsection of the statute punishing the crime: What is controlling and determines the nature and character of the crime charged are the facts alleged in the information. [Batulanon v. People, G.R. No. 139857 (2006)] Conviction of a more serious crime than alleged General rule: Accused may be convicted of a crime more serious than that named in the title if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence [Buhat v. CA, G.R. No. 119601 (1996)]] Exception: Cannot be convicted under one act when he is charged with the violation of another if the change: # Involves change in the theory of the trial # Requires a different defense # Surprises the accused in any way [US v. Panlilio, G.R. No. L-9876 (1914)]

7. Cause of the Accusation The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated: a. In ordinary and concise language; and b. Not necessarily in the language used in the statute; but c. In terms sufficient to enable a person of common understanding to know what offense is being charged, as well as its qualifying and aggravating circumstances [Sec. 9, Rule 110]

REMEDIAL LAW

Purpose of requiring allegation of every element 1. To enable the court to pronounce proper judgment 2. To furnish the accused with information as to enable him to make a defense 3. As a protection against further prosecution for the same cause Failure to allege: # Any of the elements of the offense: Accused cannot be convicted of the offense charged, even if the missing elements have been proven during trial. Even a plea of guilty will not cure such defect, nor justify conviction. # Qualifying and aggravating circumstances: They are not considered even if proven during trial [Viray v. People, G.R. No. 205180 (2013)] ○ If aggravating circumstances were not alleged, they can still be the basis for awarding exemplary damages under Art. 2229 (by way of example or correction for public good) [People v. Dalisay, G.R. No. 188106 (2009)] Note: The failure to allege such cannot be cured by an amendment of the information after the accused entered his plea [People v. Antonio, G.R. No. 142727 (2002)]] Rule on Negative Averments General rule: Whenever an accused claims to be within the statutory exception, it is more logical and convenient that he should aver and prove the fact than that the prosecutor should anticipate such defense, and deny it [Cabrera v. Marcelo, G.R. Nos. 157419-20 (2004)] Exception: Where the exemptions are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption were omitted, the indictment, to be sufficient, must show that the person charged does not

Page 368 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

fall within the exemptions [People v. San Juan, G.R. No. L-22944 (1968)] When habitual delinquency is alleged The information must specify: a. Date of the commission of the previous crimes b. The date of last conviction or release [People v. Venus, G.R. No. 45141 (1936)] Where complex crime is charged Allegations do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which show that one offense was a necessary means to commit the other [People v. Alagao, G.R. No. L-20721 (1966)]

8. Duplicity of Exception

the

Offense;

Duplicity of the offense is the joinder of two or more separate and distinct offenses in one and the same information or complaint [Loney v. People, G.R. No. 152644 (2006)] General rule: A complaint or information must charge only one offense. Exception: Multiple offenses may be charged when the law prescribes a single punishment for various offenses [Sec. 13, Rule 110]: a. Complex crimes - E.g., Acts committed in furtherance of rebellion are crimes in themselves but absorbed in the single crime of rebellion [Enrile v. Salazar, G.R. No. 92163 (1990)] b. Special complex crimes c. Continuous crimes (Requisites:) i. Plurality of acts performed separately during a period of time ii. Unity of penal provisions violated iii. Unity of criminal intent [People v. Ledesma, G.R. No. L-41522 (1976)]

REMEDIAL LAW

d. Crimes susceptible of being committed in various modes i. The allegations in the information would be regarded as a description of only one offense and information is not rendered defective [Jurado v. Suy Yan, G.R. No. L-20714 (1971)] e. Crimes of which another offense is an ingredient f. When a single act violates different statutes [Loney v. People, G.R. No. 152644 (2006)] Remedy to duplicity of offense Accused must move for the quashal of the information before arraignment. [Sec. 1 and 3, Rule 117] Failure to file motion to quash Accused is deemed to have waived the objection and may be convicted of as many offenses are charged and proved. [Sec. 3, Rule 120]

9. Amendment or Substitution of Complaint or Information Amendment A change in either the form or substance of the same offense in the Information. It is not a new charge; it just supersedes the original Information but relates back to the date at which the original information was filed [Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)] Not all defects in an information may be cured by an amendment. An Information which is void ab initio cannot be amended to obviate a ground for quashal. An amendment which operates to vest jurisdiction is impermissible [Leviste v. Alameda G.R. No. 182677 (2010)]

Page 369 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

KINDS OF AMENDMENT Formal Amendment

Substantial Amendment

Definition This merely states with additional precision something which is already contained in the original information, and which, therefore adds nothing essential for conviction for the crime charged [Gabionza v. CA, G.R. No. 140311 (2001)]

This consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court [Teehankee v. Madayag, G.R. No. 103102 (1992)]

Amendment as to General rule: form can only be Amendment as to made under two substance at this conditions: stage of the case is 1. With leave of court; proscribed [People and v. Zulueta, G.R. No. 2. It does not cause L-4017 (1951)] prejudice to the since: rights of the 1. It violates the right accused [Sec 14, to be informed of Rule 110] the nature and cause of the accusation during his plea [Buhat v. People, G.R. No. 119601 (1996)] 2. It violates the rule on double jeopardy. Exception: Amendment may be allowed if it is beneficial to the accused, [People v. Janairo, G.R. No. 129254 (2007)]

When Amendment should be made Before plea or arraignment General rule: Any formal or substantial amendment, made before the accused enters his plea may be done without leave of court [Sec. 14, Rule 110] Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only 1. Upon motion of the prosecutor 2. With notice to the offended party and 3. With leave of court

After plea and during trial

REMEDIAL LAW

Test Whether An Amendment Is Formal Whether or not a defense under the original information would be equally available after the amendment and whether or not any evidence the accused might have would be equally applicable in one form as in the other [People v. Degamo, G.R. No. 121211 (2003), citing Teehankee v. Madayag, G.R. No. 103102 (1992)] SUBSTITUTION OF INFORMATION When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such

Page 370 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information [Sec. 19, Rule 119, ROC]

Offense involved

The amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy

Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy

Double jeopardy as Defense

Can be invoked only if the new information is a substantial amendment and it was done after the plea

Cannot be invoked. Substitution presupposes that the new information involves a different offense which does not include or is not included in the original charge.

Limitations of substitution a. At any time before judgment [Sec. 14, Rule 110] b. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein [Sec. 19, Rule 119] c. The accused would not be placed in double jeopardy [Sec. 14, Rule 110] Amendment Distinguished

and Amendment

Substitution Substitution

Applicability

The same attempted, frustrated, necessarily includes or included offense

Involves different offense

Scope

Formal or substantial changes

Substantial changes

Necessity Amendment of leave of before plea court has been entered Can be effected without leave of court

Must be with leave of court

Necessity of new PI and plea

Another PI is entailed and accused has to plead anew

When amendment is Only as to form, no need for another PI and retaking of plea

[Teehankee Jr. v. Madayag, G.R. No. 103102, (1992)] Variance between Allegation and Proof Variance When the offense proved is LESS than the offense charged

Page 371 of 525

Consequence The accused will be convicted of the offense proved [Sec. 4, Rule 120]

U.P. LAW BOC

CRIMINAL PROCEDURE

When the offense proved is GREATER than the offense charged

The accused will be convicted of the offense charged [Sec. 4, Rule 120]

When the offense proved is DIFFERENT and NOT NECESSARILY INCLUDED/INCLUDES the offense charged

The case should be dismissed and a new Information should be filed, charging the proper offense. [Sec. 14, Rule 110]

10.

Those committed on board a vessel in the course of its voyage

In the proper court of the first port of entry or of any municipality or territory through which such vessel passed during its voyage, subject to the generally accepted principles of international law [Sec. 15, Rule 110]

Piracy, which has no territorial limits

May be instituted anywhere [People v. Lollo and Saraw, G.R. No. 17958 (1922)]

Libel

If one of the offended parties is a private individual: a. Where the libelous article is printed and first published, or b. Where said individual actually resides

Venue of Criminal Actions

General rule: Venue is criminal cases is jurisdictional. In all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where: a. The offense was committed, or b. Any of its essential ingredients occurred [Sec. 15(a), Rule 110]. Exceptions: Crime

Venue

Felonies under Art. 2, RPC

Proper court where criminal action was first filed [Sec. 15, Rule 110]

Those committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip

In the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including place of departure and arrival [Sec. 15, Rule 110]

REMEDIAL LAW

Page 372 of 525

If one of the offended parties is a public official: a. Where the official holds office at the time of the commission of the offense 1. If the office is in Manila, then CFI Manila 2. If the office is any other city or province, then file where he holds office b. Where the libelous article is printed and first published

U.P. LAW BOC

Cases filed under B.P. 22

CRIMINAL PROCEDURE

May be filed in the place where the check was dishonored or issued. In the case of a crosscheck, in the place of the depositary or collecting bank [People v. Grospe, G.R. No. L-74053-54, (1988)]

Illegal recruitment cases (R.A. 8042 or Migrant Workers Act)

The victim has the option to file the case in his place of residence or in the place where the crime was committed [Sto Tomas v. Salac G.R. No. 152642 (2012)]

Violations of RA 10175 (Cybercrime Prevention Act of 2012)

RTCs have jurisdiction over any violation of the provisions of the Act, including any violation committed by a Filipino national regardless of the place of commission [Sec. 21]

In exceptional circumstances to ensure a fair trial and impartial inquiry

SC has the power to order a change of venue or place of trial to avoid miscarriage of justice [Sec. 5(4), Art. VII, Constitution]

Transitory or continuing offenses

The courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People v. Grospe, G.R. No. L74053 (1988)]

REMEDIAL LAW

11. Intervention of Offended Party General rule: An offended party has the right to intervene in the prosecution of a crime, where the civil action for recovery of civil liability is instituted in the criminal action [Sec. 16, Rule 110] Note: Regardless of the intervention, the prosecution of the case is still subject to the control of the prosecutor [Ricarze v. People, G.R. No. 160451 (2007)] Exceptions: a. Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party (e.g. treason, rebellion, espionage and contempt) [Rodriguez v. Ponferrada, G.R. No. 155531-34 (2005)] b. Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has 1. Waived the same or 2. Expressly reserved his right to institute a separate civil action or 3. Already instituted such action [Rodriguez v. Ponferrada, G.R. No. 155531-34 (2005)]

C.

PROSECUTION OF CIVIL ACTION

1. Rule on Implied Institution of Civil Action with Criminal Action General rule: The civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action.

Page 373 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Exception: When the offended party: a. Waives the civil action b. Reserves the right to institute it separately c. Institutes the civil action prior to the criminal action; [Sec. 1, Rule 111] Civil liability of employer in a criminal action At most, the employer can only be held subsidiarily liable for the delict committed by his employee. [Art. 102, 103, RPC] The employer cannot be held vicariously liable, under Art. 2180, in the criminal action. [Maniago v. CA, G.R. No. 101809 (1996)]

2. When Civil Action Proceed Independently

REMEDIAL LAW

offended party from the accused, if any, EXCEPT, when enforcement of civil liability by a separate civil action has been reserved or waived. [Sec. 2, Rule 120, ROC]

b. Reservation of right to file civil action When reservation shall be made 1. Before the prosecution starts to present its evidence, and 2. Under circumstances affording the offended party a reasonable opportunity to make such reservation. [Sec. 1(2), Rule 111]

May Note: Failure of the court to adjudge as to civil liability amounts to the reservation of the right to a separate civil action.

a. Independent civil actions Independent civil actions those that are separate and distinct from and shall proceed independently of the criminal action. Only a preponderance of evidence shall be required in such cases: [Sec. 3, Rule 111] a. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted [Art 29, NCC] b. Cases involving violation of constitutional rights, defamation, fraud, physical injuries, refusal or failure to render aid or protection by the members of the police or the prosecuting attorney, quasi-delict) [Sec. 3, Rule 111] [Art. 32, 33, 34, 35 and 2176, NCC] Prohibition on double recovery In no case may the offended party recover damages TWICE for the same act or omission charged in the criminal action. [Sec. 3, Rule 111] Note: The judgment of the court must state the civil liability or damages to be recovered by the

Effect of reservation of right The prescriptive period of the civil action that was reserved shall be tolled. [Sec. 2, Rule 111] When reservation to file separately not allowed 1. B.P. 22 cases [Sec. 1(b), Rule 111] 2. Cases cognizable by the Sandiganbayan [Sec. 4, P.D. 1606, as amended by R.A. 10660] 3. Tax cases [Sec. 7(b)(1), RA 9282] Note: In such cases, only the civil liability arising from the crime charged (cause of action arising from the delict) is deemed instituted. [Sarmiento v. CA, G.R. No. 122502 (2002)]]

c. Separate action filed by the accused No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action [Sec. 1, Rule 111]

Page 374 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

3. When Separate Civil Action Is Suspended When the civil action is filed before the criminal action General Rule: If the civil action is instituted before the institution of the criminal action, such pending civil action, in whatever stage it may be found, shall be suspended until final judgment of the criminal action has been rendered. [Sec. 1, Rule 111] Exceptions: a. In cases of independent civil actions b. In cases where the civil action presents a prejudicial question c. Where the civil action is not one intended to enforce the civil liability arising from the offense Note: Rules preclude a motu proprio suspension by the judge of the civil action; it must be by petition of the defendant [Yap v. Paras, G.R. No. 101236 (1992)]] Consolidation of civil with criminal action Before judgment on the merits is rendered in the civil action, such may be consolidated with the criminal action in the court trying the criminal action, upon motion of the offended party. The evidence already adduced in the civil action will be automatically reproduced in the criminal action. [Sec. 2, Rule 111] Note: There can also be no motu proprio consolidation. It must be upon motion of the offended party.

REMEDIAL LAW

4. Effect of Death of the Accused or Convicted On Civil Action Before Arraignment The criminal case shall be dismissed without prejudice to any civil action that the offended party may file against the estate of the deceased [Sec. 4, Rule 111] After arraignment and during pendency of the criminal action The civil liability is extinguished. But, a. An independent civil action enforcing liabilities under Art. 32, 33, 34, 35 and 2176 may be continued against the estate or legal representative of the accused, after proper substitution. b. b. If the civil action has been reserved and subsequently filed, the civil action shall proceed after substitution of parties. [Sec. 4, Rule 111] During appeal Civil and criminal liabilities are extinguished [People v. Alison, G.R. No. L-30612 (1983)] Note: Only civil liability ex delicto is extinguished. A separate civil action may be instituted based on other sources of civil liability [People v. Culas, G.R. No. 211166 (2017)] After judgment

When criminal action filed before After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. [Sec. 1, Rule 111]

The civil liability is not extinguished. Claims shall be filed against the estate of the accused under Rule 86 of the ROC. [Sec. 5, Rule 86]

Page 375 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

5. Prejudicial Question

REMEDIAL LAW

Suspension of the criminal action [Sec. 6, Rule 111]

Definition One which arises in a case, where the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal [People v. Consing, G.R. No. 148193 (2003)] There is a prejudicial question only when the matter that has to be priorly decided by another authority is one where the cognizance of which pertains to that authority and should not, under the circumstances, be passed upon by the court trying the criminal case [Rojas v. People, G.R. No. L-22237 (1974)]

It does not prescribe the dismissal of the criminal action [Yap v. Paras, G.R. No. 101236, (1992)] Where filed A petition for suspension of criminal action based upon the pendency of a prejudicial question in a civil action is filed in either: a. Office of the prosecutor (in the PI stage); b. Court conducting the PI; or c. Court where criminal action has been filed for trial, at any time before the prosecution rests. [Sec. 6, Rule 111] Rationale

It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused [Ras v. Rasul, G.R. No. L-50411 (1980)]

To avoid two conflicting decisions in the civil case and in the criminal case [Sy Thiong Shiou v. Sy Chim, G.R. No. 174168 (2009)] Example

Elements a. The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. b. The resolution of such issue determines whether or not the criminal action may proceed. [Sec. 7, Rule 111]

The nullity and forgery of the prior deed of sale is based on the very same facts which would be necessarily determinative of the accused’s guilt or innocence in the case for estafa. If the first alleged sale is void or fictitious, then there would have been no double sale and the accused would be declared innocent [Ras v. Rasul, G.R. No. 50411 (1980)]

Effect

Page 376 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

Prejudicial question where administrative and criminal cases, but no civil case, involved In San Miguel Properties, Inc. v. Perez [G.R. No. 166836 (2013)] the SC held that the administrative case before the HLURB case raises a prejudicial question that sufficed to suspend the criminal proceedings since the action before the HLURB was “civil in nature” and could not be instituted elsewhere except in the HLURB whose jurisdiction over the action was exclusive and original.

6. Rule on Filing Fees in Civil Action Deemed Instituted With the Criminal Action General rule: a. Actual Damages - no filing fees required b. Moral, exemplary, nominal, temperate damages: 1. If amount is specified in the complaint/information the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. 2. If amount is not specified in the complaint/information, the filing fees shall constitute a first lien on the judgment awarding such damages [Sec. 1, Rule 111] Exceptions: a. Violations for B.P.22 1. The offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. 2. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein.

3. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. [Sec. 1, Rule 111] b. Estafa – offended party shall pay in full the filing fees based on the amount involved [See Sec. 20, Rule 141]

D. PRELIMINARY INVESTIGATION 1. Nature of Right Definition 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 [Sec. 1, Rule 112, as amended by A.M. No. 05-8-26-SC]. Nature What it is What it is not 1. Merely Not a trial of the case inquisitorial, and on the merits” and it is often the only does not place the means of persons against discovering the whom it is taken in persons who jeopardy [Paderanga may reasonably v. Drilon, G.R. No. be charged with 96080 (1991)] a crime, to enable the prosecutor to prepare his complaint or information 2. This is a substantive right. To deny the accused’s claim to a PI would be to deprive him of

Page 377 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

the full measure of his right to due process [Duterte v. Sandiganbayan, G.R. No. 130191 (1998)] Who determines probable cause This is an executive function that the courts cannot interfere with in the absence of grave abuse of discretion. [Salapuddin v. Court of Appeals, G.R. No. 184681 (2013)]. A prosecutor cannot then be compelled by mandamus to file a case against an alleged criminal, except when such prosecutor acted with grave abuse of discretion amounting to lack or excess of jurisdiction [Hegerty v. CA, 409 SCRA 285 (2003)] Statutory basis of the right to preliminary investigation This is NOT a constitutional right; rather, the right thereto is of statutory character and may be invoked only when specifically created by statute. It is not a fundamental right and may be waived expressly or by silence [Marinas v. Siochi, G.R. Nos. L25707 (1981)] Waiver of right The right to PI is a personal right which the accused may waive either expressly or by implication but at all times must be unequivocal. The waiver, whether express or implied, must be in a clear and unequivocal manner [Larranaga v. CA. G.R. No. 130644 (1998)] Mere failure of a defendant and/or his counsel to appear during PI cannot be construed as a waiver [Larranaga v. CA, G.R. No. 130644 (1998)] When the accused waives his right to PI, the fiscal may forthwith file the corresponding information with the proper court [People v. Perez, G.R. No. L-15231 (1960)]

REMEDIAL LAW

An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a PI of the charge against him provided that he raises the challenge before entering his plea [Sec. 26, Rule 114] When right deemed waived [W-FI-ANG] a. Express Waiver or by silence [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)] b. Failure to Invoke it during arraignment [People v. De Asis, G.R. No. 105581 (1993)]; and c. Consenting to be Arraigned and entering a plea of Not Guilty without invoking the right to PI [People v. Bulosan, G.R. No. L-58404 (1988)] The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)] When right not deemed waived a. Failure to appear before the prosecutor during the clarificatory hearing or when summoned, when the right was invoked at the start of the proceeding [Larranaga v. CA, G.R. No. 130644 (1998)]; or b. When the accused filed an application for bail and was arraigned over his objection and the accused demanded that PI be conducted [Go v. CA, G.R. No. 101837 (1992)]

2. Purposes of Investigation

Preliminary

The following are the specific purposes of preliminary investigation [IPA]: a. To Inquire concerning the commission of a crime and the connection of the accused with it. This is so that: i. the accused may be informed of the nature and character of the crime charged against him, and,

Page 378 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

ii.

if there is probable cause for believing him guilty, that the State may take the necessary steps to bring him to trial; b. To Preserve the evidence and keep the witnesses within the control of the State; and c. To determine the Amount of bail, if the offense is bailable. [Callo-Claridad v. Esteban, G.R. No. 191567 (2013)]

c. Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by A.M. No. 05-8-26-SC]

3. Who May Conduct Determination of Existence of Probable Cause Probable cause Probable cause pertains to facts and circumstances sufficient to support a wellfounded belief that a crime has been committed and the accused is probably guilty thereof. [Shu v. Dee, G.R. No. 182573 (2014)] Quantum of Evidence The quantum of evidence now required in PI is such evidence sufficient to “engender a wellfounded belief” as to the fact of the commission of a crime and the respondent's probable guilt thereof. A PI is not the occasion for the full and exhaustive display of the parties’ evidence. [Estrada v. Ombudsman, G.R. No. 212140 (2015)] Hearsay evidence is admissible during PI [De Lima v. Guerrero, G.R. No. 229781 (2017), citing Estrada v. Ombudsman, G.R. No. 212140 (2015)] Who May Conduct Preliminary Investigation As Provided by the As Provided by Rules of Court Law a. Provincial/city a. COMELEC: over prosecutors and all election their assistants offenses b. National and punishable regional state under the prosecutors Omnibus

REMEDIAL LAW

Election Code. [Sec. 2(6), Art. IX-C, Constitution; Section 265, BP881 (Omnibus Election Code), as amended by Section 43, RA9369] [ b. Ombudsman: over cases public officers and employees [Section 15[1], RA6770 (Ombudsman Act of 1989)] c. Presidential Commission on Good Governance with assistance of the OSG: over cases investigated by it) [EO14, (1986)]

JUDICIAL DETERMINATION v. EXECUTIVE DETERMINATION OF PROBABLE CAUSE Executive Judicial Determination Determination Ascertains To ascertain whether a whether a criminal case warrant of must be filed in arrest should court. The be issued public against the Nature prosecutor is accused [Sec. given a broad 2, Art. III, discretion to Constitution] determine whether probable cause exists and to

Page 379 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well [Uy v. Sandiganbayan, G.R. No. 105965-70 (2001)]

charge those whom he believes to have committed the crime. [People v. Borje, Jr., G.R. No. 170046 (2014)] Made by whom

Purpose

Standard

REMEDIAL LAW

Prosecutor

Judge

Determination of PC to hold a person for trial [Sec. 1, Rule 112, as amended by A.M. No. 05-826-SC] Sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial [Sec. 1, Rule 112, as amended by A.M. No. 05-826-SC]

Determination of PC for the arrest of the accused [Baltazar v. People, G.R. No. 174016 (2008)] Set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested [Baltazar v. People, G.R. No. 174016 (2008)]

Determination of Probable Cause made by the Ombudsman The Ombudsman is authorized to conduct PI and to prosecute all criminal cases involving public officers and employees, not only those

A person under PI by the Ombudsman is entitled to file a motion for reconsideration of the adverse resolution, under Sec. 7 of the Rules of Procedure of the Ombudsman. To deny the accused of his right to file a motion for reconsideration would also deprive him of his right to a full preliminary investigation [Sales v. Sandiganbayan, G.R. No. 143802 (2001)] Procedure for Preliminary Investigation Filing of the complaint, which a. Shall state the address of the respondent b. Shall be accompanied by the affidavits of the complainant and his witnesses, and other supporting documents to establish probable cause. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath or if absent or unavailable, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. c. Shall be in such number of copies as there are respondents, plus 2 copies for the official file [Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-26-SC] ↓ Action of the investigating officer a. Within 10 days after the filing of the complaint, the investigating officer shall either: 1. Dismiss the complaint, if he finds no ground to continue the investigation; or 2. Issue a subpoena to the respondent, attaching the complaint and supporting affidavits and documents

Page 380 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

[Sec. 3(b), Rule 112, as amended by A.M. No. 05-8-26-SC]. Respondent has the right to examine the evidence submitted by complainant which he may not have furnished and to copy evidence at his expense [Sec. 3(b), Rule 112, as amended by A.M. No. 05-8-26-SC]. ↓ Respondent’s counter-affidavit It must be made within ten (10) days from receipt of subpoena with the complaint and must comply with the same requirements as a complaint. Respondent is not allowed to file a motion to dismiss in lieu of counteraffidavit [Sec. 3(c), Rule 112, as amended by A.M. No. 05-8-26-SC]. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112, as amended by A.M. No. 05-8-26-SC] This situation would have the effect of an ex-parte investigation [Riano 210, 2016 Ed.]. ↓ Clarificatory hearing The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned [Sec. 3(e), Rule 112, as amended by A.M. No. 05-8-26-SC]. The hearing shall be held within 10 days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days [Sec. 3(e), Rule 112, as amended by A.M. No. 05-8-26SC]. ↓

REMEDIAL LAW

Determination Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial [Sec. 3(f), Rule 112, as amended by A.M. No. 05-8-26-SC]. Note: Not receiving a copy of affidavits of a corespondent does not deny a respondent his right to due process, since the Rules of Procedure of the Office of the Ombudsman only require that a respondent be furnished a copy of the complainant’s affidavit and other supporting documents. [Estrada v. Ombudsman, G.R. No. 212140-41 (2015)]

4. Resolution of the Investigating Prosecutor If he finds probable cause to hold respondent for trial, he shall prepare the resolution and information and shall certify under oath in the information that [E-RG-I-CE]: a. He, or as shown by the record, an authorized officer has personally Examined the complainant and his witnesses; b. There is Reasonable Ground to believe that a crime has been committed and the accused is probably guilty thereof; c. The accused was Informed of the complaint and of the evidence against him; and d. He was given opportunity to submit Controverting Evidence If he finds no probable cause, he shall recommend the dismissal of the complaint [Sec. 4, Rule 112, as amended by A.M. No. 058-26-SC] Note: Notwithstanding the absence of a certification as to the holding of a PI (not the actual PI), the information is, nonetheless, considered valid for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate

Page 381 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

it as such [Alvizo v. Sandiganbayan, GR. No. 101689 (1983)]

[Sec. 4, Rule 112, as amended by A.M. No. 058-26-SC]

5. Review

Remedies to review the resolution of the investigation officer 1. Filing an appeal with the investigating officer.

Within five (5) days from the resolution, the investigating officer shall forward the case to the provincial/city/chief state prosecutor, or to the Ombudsman or his deputy in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction. ↓ Within ten (10) days from receipt of the resolution, the Prosecutor/Ombudsman shall act on the resolution and shall immediately inform the parties of such action. ↓ No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial/city/chief state prosecutor, or Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but the prosecutor/Ombudsman or his deputy disapproves his recommendation, the latter, may by himself, file the information or direct another assistant/state prosecutor to do so without conducting a new PI. ↓ If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

Note: The appeal does not prevent the filing of the corresponding information in court based on the finding of probable cause in the appealed resolution, unless the Secretary of Justice directs otherwise, but the appellant and the prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance [Section 9, DOJ Circular No. 70 (2000)]. 2. Petition for review to the SOJ, who may review the resolutions of his subordinates in criminal cases despite the information being filed in court [Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-051909 (2005); see also DOJ Circ. No. 70]. Note: The party filing a petition for review is allowed to file a motion for the suspension of the arraignment [Sec. 11(c), Rule 116]. 3. If the SOJ decision is adverse to the appealing party, such decision is appealable administratively before the Office of the President and the decision of the latter may be appealed before the CA pursuant to Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932 (2006)] Note: Under Memorandum Circular No. 58 (2003), no appeals from or petitions for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations shall be entertained by the Office of the President, except those involving offenses punishable by reclusion perpetua to death [Angeles v. Gaite, G.R. No. 176596 (2011)].

Page 382 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

4. The resolution of the Secretary of Justice may also be reviewed by the Court of Appeals through a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the SOJ committed grave abuse of discretion amounting to lack of jurisdiction [Argovan v. San Miguel Corporation, G.R. No. 188767, (2013)]. 5. In criminal cases, the ruling of the Ombudsman shall be elevated to the Supreme Court by way of Rule 65, solely under the ground of grave abuse of discretion [Villanueva v. Ople, G.R. No. 165125 (2005)].

6. When Warrant of Arrest May Issue The PI conducted by the judge which is properly called preliminary examination is for the determination of probable cause for the issuance of warrant of arrest [P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642 (2002)] When the RTC/MTC may issue a Warrant of Arrest a. Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. b. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. c. If he finds probable cause, he shall issue a warrant of arrest or a commitment order when the complaint or information was filed pursuant to Sec. 7 of Rule 112, as amended by A.M. No. 05-8-26-SC. d. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information. [Sec. 5(a), Rule 112, as amended by A.M. No. 05-8-26-SC]

REMEDIAL LAW

When warrant of arrest shall not issue A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court or if the complaint or information was filed pursuant to Sec. 6, Rule 112 (When accused lawfully arrested without warrant) or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction [Sec. 5(c), Rule 112, as amended by A.M. No. 05-8-26-SC]

7. Cases Not Requiring Preliminary Investigation nor Covered By the Rule on Summary Procedure If the complaint is filed directly with the prosecutor involving an offense punishable by an imprisonment of less than 4 years, 2 months and 1 day, the procedure outlined in Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-26-SC shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing [Sec. 8(a), Rule 112, as amended by A.M. No. 05-8-26-SC] Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-26-SC states that: a. The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. b. They shall be in such number of copies as there are respondents, plus 2 copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that

Page 383 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

he is satisfied that they voluntarily executed and understood their affidavits. If the complaint or information is filed with the MTC/MCTC for an offense covered by this section a. The procedure in Sec. 3(a) quoted above shall be observed. b. If within 10 days after the filing of the complaint of information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. c. He may, however, require the submission of additional evidence, within 10 days from notice, to determine further the existence of probable cause. d. If the judge still finds no probable cause despite the additional evidence, he shall, within 10 days from its submission or expiration of said period, dismiss the case. e. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. f. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. [Sec. 8(b), Rule 112, as amended by A.M. No. 05-8-26-SC]

8. Remedies of Accused If There Was No Preliminary Investigation Effect of denial of right The absence of a PI does not impair the validity of an information or render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information [Villaflor v. Vivar, G.R. No. 134744 (2001)]

REMEDIAL LAW

Remedies of the accused if there was no PI a. Call the attention of the court to the deprivation of the required PI before entering his plea [Larranaga v. CA. G.R. No. 130644 (1998)] b. After the filing of the complaint/information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112 [Sec. 6, Rule 112, as amended by A.M. No. 05-8-26-SC] c. File a certiorari, if refused and such refusal is tainted with grave abuse of discretion [Riano 186, 2016 Ed.] The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI [Villaflor v. Vivar, G.R. No. 134744 (2001)] The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)] Restraining preliminary investigation General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained. Exceptions: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary: a. For the orderly administration of justice; b. To prevent the use of the strong arm of the law in an oppressive and vindictive manner; c. To avoid multiplicity of actions; d. Since there is a prejudicial question which is sub judice e. When the acts of the officer are without or in excess of authority f. Since double jeopardy is clearly apparent g. When the court has no jurisdiction over the offense

Page 384 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

h. When the case of one of persecution rather than prosecution i. When the charges are manifestly false and motivated by the lust for vengeance j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied k. To afford adequate protection to constitutional rights [Hernandez v. Albano, G.R. No. L-19272 (1967)] l. In proper cases, because the statute relied upon is unconstitutional, or was “held invalid” [Ladlad v. Velasco, G.R. No. 172070-72 (2007)]

REMEDIAL LAW

presence of his counsel; 2. he may apply for bail; 3. the investigation must be terminated within 15 days from its inception [Sec. 6, Rule 112, as amended by A.M. No. 058-26-SC]

Inquest Is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court [Leviste v. Alameda, G.R. No. 182677 (2010), citing Sec. 1, DOJ Circ. No. 61 (1993)]

Procedure An inquest is considered commenced upon receipt by the Inquest officer from the law enforcement authorities of the complaint/referral documents which should include: 1. Affidavit of arrest, investigation report, statement of the complainant and witnesses, all of which must be subscribed and sworn to before him; 2. Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person. [Sec. 3, DOJ Circ. No. 61 (1993)]

In the absence of an inquest prosecutor, the offended party or peace officer may directly file the complaint in court [Sec. 6, Rule 112, as amended by A.M. No. 05-8-26-SC]

The inquest proceedings must be terminated within the period prescribed under the provisions of Art. 125, RPC. [Sec. 3, DOJ Circ. No. 61 (1993)]

9. Inquest

Remedy of a person arrested without a warrant After the filing of Before the the complaint but complaint or before information is filed arraignment The accused may ask The accused may for PI. ask for PI within 5 Requisites: days after he learns 1. he must sign a of the filing of the waiver of the complaint or provisions of information Article 125 of RPC, in the

Crime or offense punishable by:

Light penalties or their equivalent Correctional penalties or their equivalent Afflictive or capital penalties or their equivalent

Page 385 of 525

Period to deliver person arrested to proper judicial authorities: 12 hours 18 hours

36 hours

U.P. LAW BOC

E.

CRIMINAL PROCEDURE

REMEDIAL LAW

General rule: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law [Umil v. Ramos, G.R. No. 81567 (1991)]

ARREST

1. Arrest, How Made Definition Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense [Sec. 1, Rule 113] How made a. by actual restraint of a person to be arrested; b. by his submission to the custody of the person making the arrest [Sec. 2, 1st par., Rule 113] Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary [Sanchez v. Demetriou, G.R. No. 111771 (1993)] No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113] An arrest may be made on any day and at any time of the day or night [Sec. 6, Rule 113]

2. Arrest without Warrant, When Lawful

Exceptions: a. In flagrante delicto [Sec. 5(a), Rule 113] b. Hot pursuit arrest [Sec. 5(b), Rule 113] c. Arrest of escaped prisoner [Sec. 5(c), Rule 113] d. Other lawful warrantless arrests 1. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines [Sec. 13, Rule 113] 2. For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion [Sec. 23, Rule 114] 3. An accused released on bail may be rearrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending [Sec. 23, Rule 114] Note: A legitimate warrantless arrest necessarily includes the authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense [People v. Montilla, G.R. No. 123872, (1998)]

Page 386 of 525

U.P. LAW BOC

Definition

Requisites

CRIMINAL PROCEDURE

In flagrante delicto arrest A peace officer or a private person may, without warrant, arrest a person when, in his presence, the person to be arrested: 1. Has committed 2. Is actually committing, or 3. Is attempting to commit an offense [Sec. 5(a), Rule 113]

[OA-PVAO] 1. The person to be arrested must execute an Overt Act indicating that he has just committed, is actually committing, or is attempting to commit a crime, and 2. Such overt act is done in the Presence or within the View of the Arresting Officer [Zalameda v. People, G.R. No. 183656 (2009);

REMEDIAL LAW

Hot pursuit arrest

Arrest of escaped prisoner

A peace officer or a private person may, without warrant, arrest a person when an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances that the person to be arrested has committed it [Sec. 5(b), Rule 113]

A peace officer or a private person may, without warrant, arrest a person when the person to be arrested is a prisoner who has escaped 1. from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending; or 2. While being transferred from one confinement to another [Sec. 5(c), Rule 113]

[C-PK] 1. An offense has just been Committed. - There must be a large measure of immediacy between the time the offense was committed and the time of the arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured [People v. del Rosario, G.R. No. 127755 (1999); Page 387 of 525

Escapee may be immediately pursued or re-arrested without a warrant at any time and in any place within the Philippines [Sec. 13, Rule 113] N/A

U.P. LAW BOC

CRIMINAL PROCEDURE

People v. Laguio, G.R. No. 128587 (2007)].

Notes

“In his presence” means: 1. He sees the offense, even though at a distance, or 2. He hears the disturbances created by the offense and proceeds at once to the scene [People v. Evaristo, G.R. No. 93828 (1992)] “Reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest [People v. Molina, G.R. No. 133917 (2001)]

REMEDIAL LAW

People v. Agojo , G.R. No. 181318 (2009)]; and 2. The person making the arrest has probable cause to believe, based on Personal Knowledge of facts and circumstances, that the person to be arrested has committed it.

Personal knowledge does not require actual presence at the scene while a crime was being committed; it is enough that evidence of the recent commission of the crime is patent and the police officer has probable cause to believe based on personal knowledge of facts or circumstances, that the person to be arrested has recently committed the crime [Pestilos v. Generoso, G.R. No. 182601 (2014)]

Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in

Rationale At the time of arrest, the escapee is in continuous commission of a crime (i.e., evasion of service of sentence). [Parulan v. Director of Prisons, G.R. No. L-28519 (1968)]

accordance with Sec. 7 of Rule 112 [Sec. 5, 2nd par., Rule 113] General rule: PI is required to be conducted before a complaint/information is filed for an offense where the penalty prescribed by law is

Page 388 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

at least 4 years, 2 months and 1 day, without regard to the fine [Sec. 1, Rule 112, , as amended by A.M. No. 05-8-26-SC] Exception: When a person is lawfully arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. RULES ON ILLEGALITY OF ARREST Effect The legality of the arrest affects only the jurisdiction of the court over the person of the accused [People v. Nuevas, G.R. No. 170233 (2007)] Waiver Any objection involving the arrest or the procedure in the court’s acquisition of jurisdiction over the person of an accused must be made before he enters his plea; otherwise the objection is deemed waived. Accordingly, an application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued, provided that it was raised before he enters his plea. [Sec. 26, Rule 114] A waiver of the right to question an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest [People v. Nuevas, G.R. No. 170233 (2007)] When invalid arrest is cured 1. When the accused voluntarily submits to the jurisdiction of the trial court [Dolera v. People, G.R. No. 180693 (2009); People v. Alunday, G.R. No. 181546 (2008)] 2. By the filing of an information in court and the subsequent issuance by the judge of a warrant of arrest [Sanchez v. Demetriou, G.R. No. 111771 (1993)] Page 389 of 525

REMEDIAL LAW

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

3. Method of Arrest By officer with Warrant 1. Execute the warrant within 10 days from its receipt. In case of his failure to execute the warrant, the head of the office to whom the warrant was issued shall state the reasons therefor. [Sec. 4, Rule 113] 2. General Rule: The officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest.

Duties of the Arresting Person

Exception: This does not apply: a. When the person to be arrested flees; b. When he forcibly resists before the officer has opportunity to so inform him; c. When the giving of such information will imperil the arrest [Sec. 7, Rule 113]

By Officer without Warrant General rule: The officer shall inform the person to be arrested of: 1. His authority; and 2. The cause of the arrest Exceptions: 1. When the person to be arrested is engaged in the commission of the offense; 2. When he is pursued immediately after its commission; 3. When he has escaped, flees or forcibly resists before the officer has the opportunity to so inform him; or 4. When the giving of such information will imperil the arrest. [Sec. 8, Rule 113]

3. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable [Sec. 7, Rule 113] Page 390 of 525

By Private Person (Citizen’s Arrest) 1. The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest except in the same cases as those for arrest by an officer without a warrant [Sec. 9, Rule 113] 2. The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Sec. 7, Rule 112 [Sec. 5, Rule 113] Otherwise, the private person may be held liable for illegal detention [Art. 125, RPC]

U.P. LAW BOC

Rights of the arresting Officer

REMEDIAL LAW

CRIMINAL PROCEDURE

4. Arrest the accused and deliver him to the nearest police station or jail without unnecessary delay [Sec. 3, Rule 113]; 5. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention [Sec. 2, 2nd par., Rule 113]. 1. To orally summon as many persons as he deems necessary to assist him in effecting the arrest [Sec. 10, Rule 113] 2. To break into building or enclosure when the following concur: a. The person to be arrested is or is reasonably believed to be in said building; b. He has announced his authority and purpose of entering therein; and c. He has requested and been denied admittance. [Sec. 11, Rule 113] 3. To break out from the building/enclosure when necessary to liberate himself [Sec. 12, Rule 113]; 4. To search the person arrested for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a warrant [Sec. 13, Rule 126]

Page 391 of 525

N/A

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

1. was filed pursuant to Sec. 6 of Rule 112 or 2. is for an offense penalized by fine only [Sec. 5(c), Rule 112, as amended by A.M. No. 05-8-26-SC]

4. Requisites of a Valid Warrant of Arrest Essential requisites The warrant must: a. Be issued upon probable cause determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce; and b. Particularly describe the person to be arrested [Sec. 2, Art. III, Constitution] When Issued A judge issues a warrant of arrest upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence [Sec. 5(a), Rule 112, as amended by A.M. No. 05-8-26-SC] The judge does not have to personally examine the complainant and his witnesses. Established doctrine provides that it is sufficient for the fiscal to provide supporting documents regarding the existence of probable cause: a. If the judge finds probable cause, he shall issue a warrant of arrest, or b. If he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses [People v. Gray, G.R. No. 180109 (2010); AAA v. Carbonell, G.R. No. 171465 (2007)] When warrant of arrest is not necessary A warrant of arrest shall not issue a. if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with Sec. 5(b) of Rule 112; or b. if the complaint or information

Note: If complaint or information is filed with the MTC judge, and the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest [Sec. 8(b), Rule 112, as amended by A.M. No. 05-826-SC]

5. Determination of Probable Cause For Issuance of Warrant of Arrest Probable cause, in connection with the issuance of a warrant of arrest, assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested [People v. Tan, G.R. No. 182310 (2009)] [See D.3, supra]

F.

BAIL

1. Nature Definition Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified [Sec. 1, Rule 114]

Page 392 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Purpose a. To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial [People v. Hon. Donato, G.R. No. 79269 (2011) & Enrile v. Sandiganbayan, G.R. No. 213847 (2016)] b. To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Sec. 14, Art. III, Constitution]; and c. To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral, A.M. No. RTJ-97-1387 (1997)] A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail [Serapio v. Sandiganbayan, G.R. No. 148468 (2003)] Requirement of custody General rule: Custody of the law is required before the court can act on an application for bail [Miranda v. Tuliao, G.R. No. 158763 (2006)] Exceptions: Custody is not required in cases of witnesses posting bail: a. When bail is required to guarantee the appearance of a material witness [Sec. 14, Rule 119]; b. When bail is required to guarantee the appearance of a prosecution witness in cases where there is substitution of the information [Sec. 14, Rule 110] Forms of Bail 1. Corporate surety 2. Property bond 3. Cash deposit 4. Recognizance

REMEDIAL LAW

2. When a Matter Exceptions

of

Right;

Bail is a matter of right a. Before or after conviction, but pending appeal, by the first-level courts; b. Before conviction by RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment [Sec. 4, Rule 114] Bail on offenses where minors are accused For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered [Sec. 34, R.A 9344] Where a child is detained, the court shall order a. the release of the minor on recognizance to his/her parents and other suitable person; b. the release of the child in conflict with the law on bail; or c. the transfer of the minor to a youth detention home/youth rehabilitation center Exception: When the offense involved is a capital offense, admission to bail may only be denied when evidence of guilt is strong [Sec. 5, Rule 114] Capital offense A capital offense is an offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Sec. 6, Rule 114] The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed [Riano, 335, 2016 Ed., citing Bravo v. De Borja, G.R. No. L-65228 (1985)] Note: R.A. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines) enacted on June 24, 2006 (which repealed

Page 393 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

R.A. 8177 and R.A. 7659) prohibited the imposition of the death penalty. Generally not applicable to extradition proceedings General rule: Right to bail is available only in criminal proceedings and does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal [Gov. of USA v. Purganan and Jimenez, G.R. No. 148571 (2002)] Exception: Only upon clear and convincing evidence: a. That once granted, the applicant will not be flight risk or will not pose danger to the community; and b. That there exists special humanitarian and compelling circumstances [Gov. of USA v. Purganan and Jimenez, G.R. No. 148571 (2002)] Exception to the exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong Note: Bail is a matter of discretion in extradition proceedings [Govt. of HK Special Administrative Region v. Olalia, G.R. No. 153675 (2007)] When not available Right to bail is not available: a. After a judgment of conviction has become final; if he applied for probation before finality, he may be allowed temporary liberty under his bail; b. After the accused has commenced to serve his sentence [Sec. 24, Rule 114] c. To military personnel accused under general courts martial [Comendador v. de Villa, G.R. No. 93177 (1991)]

REMEDIAL LAW

3. When a Matter of Discretion Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary [Sec. 5, Rule 114] The application for bail may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court [Sec. 5, Rule 114] If the RTC decision changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved only by the appellate court [Sec. 5, Rule 114] If the conviction by the trial court is for a capital offense, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court [Sec. 13, Article III, Constitution] If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of any of the following [Sec. 5, Rule 114]: a. Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration of the accused b. The accused previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification c. Commission of offense while under probation, parole or conditional pardon d. Probability of flight; e. Undue risk of the commission of another crime during the pendency of the appeal [Sec. 5, Rule 114]

Page 394 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Upon conviction of the RTC, the bail posted earlier as a matter of right loses its force and the accused must file a new and separate petition for bail.

REMEDIAL LAW

be granted bail if it is shown that: (1) the detainee will not be a flight risk or a danger to the community; and (2) there exist special, humanitarian, and compelling circumstances. The SC further explained that bail for the provisional liberty of the accused, regardless of the crime charged should be allowed independently of the merits charged, provided his continued incarceration is injurious to his health and endanger his life.

In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation [Harvey v. Defensor-Santiago, G.R. No. 82544 (1990)] Note: In Enrile v. People [G.R. No. 213847 (2015)], the Court ruled that an accused should

COURT

Before Conviction

After Conviction

Where to File Pending Action

Right

Right

MTC (before the records are elevated; else, RTC)

Noncapital

Right

Discretionary if the penalty imposed by the trial court does not exceed 6 years. However, if the penalty imposed exceeds 6 years or if the prosecution proves that the circumstances enumerated in Sec. 5, Rule 114 exist, bail will be denied or cancelled.

RTC (before the records are elevated; except if offense is downgraded, then CA

Capital

Discretionary, when evidence of guilt is not strong

Cannot be granted bail

N/A

MTC

RTC

Page 395 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

4. Hearing of Application for Bail in Capital Offenses In general At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong [Sec. 8, Rule 114] Evidence of guilt in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances [Bravo v. De Borja, G.R. No. L65228 (1985)] Duties of judge hearing the petition for bail when capital offenses are involved a. In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation [Sec. 18, Rule 114] b. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion [Sec. 7-8, Rule 114] c. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution d. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond [Sec. 19, Rule 114]. Otherwise, the petition should be denied. [Gacal v. Infante, A.M. No. RTJ- 04-1845 (2011)] Note: Evidence presented during the bail hearing are automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside

REMEDIAL LAW

the Philippines, or otherwise unable to testify [Sec. 8, Rule 114] Where application for bail is filed General rule: The application may be filed with the court where the case is pending. Exceptions: a. If the judge of the court where the case is pending is absent or unavailable, the application may be filed with any RTC/MTC/MeTC/MCTC judge in the province, city or municipality; b. Where the accused is arrested in a \the case is pending, the application may be filed with any RTC of the said place, or, if no judge is available, then with any MeTC/MTC/MCTC judge in the said place. c. When a person is in custody but not yet charged, he may apply with any court in the province or city/municipality where he is held [Sec. 17, Rule 114, as amended by A.M. No. 05-8-26-SC] Note: Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, on trial, or appeal [Sec. 17, Rule 114, as amended by A.M. No. 05-8-26-SC] When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed [Sec. 19, Rule 114]

5. Guidelines in Fixing Amount of Bail The considerations are primarily, but not limited, to the following factors: a. Financial ability of the accused b. Nature and circumstances of the offense

Page 396 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

c. d. e. f.

Penalty for the offense charged Character and reputation of the accused Age and health of the accused Weight of the evidence against the accused g. Probability of the accused appearing at the trial h. Forfeiture of other bail i. Fact that accused was a fugitive from justice when arrested j. Pendency of other cases where the accused is on bail [Sec. 9, Rule 114] The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose. [Yap Jr. v. CA, G.R. No. 141529 (2001)]

c.

d.

e.

6. When Bail Not Required When bail is not required a. When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged b. If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment [Sec. 16, Rule 114]. c. In cases where a person is charged with violation of a municipal/city ordinance, a light felony and/or criminal offense, the penalty of which is not higher than 6 months imprisonment and/or a fine of P2,000, or both, where it is established that he is unable to post the required cash or bail bond [Sec. 1, R.A. 6036]. NOTE: The title of R.A. 6036 reads “arresto mayor” instead of “6 months”. When bail is nonetheless required a. When accused was caught committing the offense in flagrante; b. When accused confesses to the commission of the offense unless he later

f.

g.

REMEDIAL LAW

repudiates the same in a sworn statement or in open court as having been extracted through force or intimidation; When accused is found to have previously escaped legal confinement, evaded sentence, or jumped bail; When accused is found to have violated Section 2, R.A. 6036, which provides that the violation of the accused of the sworn statement (required instead of bail) binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks shall justify the court to order his immediate arrest, if the failure of the accused to report is not justified; When accused is a recidivist or habitual delinquent or has been previously convicted for an offense to which the law/ordinance attaches an equal/greater penalty or for two/more offenses to which it attaches a lighter penalty When accused committed the offense while on parole or under conditional pardon; When accused has previously been pardoned for violation of municipal/city ordinance for at least two times [Sec. 1, R.A. 6036].

7. Increase or Reduction of Bail After the accused is admitted to bail, the court may, upon good cause, increase or decrease the amount [Sec. 20, Rule 114] Increased bail The accused may be committed to custody if he does not give bail in the increased amount within a reasonable period [Sec. 20, Rule 114] Reduced bail A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond [Sec. 16, Rule 114]

Page 397 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

8. Forfeiture and Cancellation of Bail Forfeiture of bail When the presence of the accused out on bail is required by court or Rules of Court and he failed to appear, his bail shall be declared forfeited and the bondsmen are given 30 days within which to: a. Produce their principal b. Show cause why no judgment should be rendered against them for the amount of their bail c. Produce the body of their principal or give the reason for his non-production; and d. Explain why the accused did not appear before the court when first required to do so [Sec. 21, Rule 114]. Failing in items (3) and (4) above, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted [Sec. 21, Rule 114] For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion [Sec. 23, Rule 114] CANCELLATION OF BAIL Application by bondsmen Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: a. Surrender of the accused; or b. Proof of his death [Sec. 22(1), Rule 114].

REMEDIAL LAW

Automatic cancellation a. Upon acquittal of the accused b. Upon dismissal of the case, or c. Upon execution of judgment of conviction [Sec. 22, Rule 114]

9. Application not a Bar to Objections on Illegal Arrest, Lack of or Irregular Preliminary Investigation An application or an admission to bail shall not bar the accused from challenging or questioning the: a. Validity of his arrest b. Legality of the arrest warrant c. Regularity of PI, or d. Absence of PI Provided, that the accused raises them before entering his plea. The court shall resolve the objections as early as practicable but not later than the start of the trial of the case [Sec. 26, Rule 114]

G.

ARRAIGNMENT AND PLEA

Arraignment It is the stage where issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void [People v. Albert, G.R. No. 114001 (1995)]. The accused must be informed of: 1. The reason for the indictment 2. The specific charges the accused is bound to face 3. The corresponding penalty for the charges

In order to cancel a bail on the ground of surrender, the surrender must be voluntary. [Esteban v. Alhambra, G.R. No. 135012 (2004)] Page 398 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

Rationale Its importance is based on the constitutional right of the accused to be informed. It is at this stage that the accused, for the first time, is given the opportunity to know the precise charge that confronts him [Kummer v. People, G.R. No. 174461 (2013)]

prosecution to prove his guilt and the precise degree of culpability [Sec. 3, Rule 116] If the accused does not enter any plea or makes a conditional plea, a plea of not guilty is entered by the court [Sec. 1(c), Rule 116]

Plea Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him

Arraignment

1. How Made

WHERE MADE: Arraignment is made before the court where the complaint or information was filed or assigned for trial. [Sec. 1(a), Rule 116]

Procedure of Arraignment The court shall issue an order directing the public prosecutor to submit the record of the PI to the branch Clerk of Court for the latter to attach the same to the record of the case. ↓ The court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him. [Sec. 6, Rule 114] ↓ a. If the accused pleads not guilty, either: 1. The accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. [Sec. 11(e), Rule 119] 2. He raises a negative defense, that is, he denies the charge, in which case regular trial proceeds. b. If the accused pleads guilty: 1. For a non-capital offense, the court may receive evidence to determine the penalty to be imposed [Sec. 4, Rule 116] 2. For a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the

HOW AND BY WHOM MADE: The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information [Sec. 1(a), Rule 116] When held General rule: The accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person [Sec. 1(g), Rule 116] Exceptions: Unless a shorter period is provided by special law or Supreme Court circular [Sec. 1(g), Rule 116] a. When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case [RA 8493 (Speedy Trial Act)]; b. Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay [R.A. 4908]

Page 399 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Instances that are excluded in computing the 30 day period for arraignment 1. Time of the pendency of the motion to quash 2. Time of the pendency of the motion for a bill of particulars 3. Other causes justifying suspension of the arraignment [Sec. 1(g), Rule 116] If the accused is under preventive detention The pre-trial conference of his case shall be held within 10 days after arraignment. Presence of the offended party The private offended party shall be required to appear in the arraignment for the purpose of: a. Plea bargaining b. Determination of civil liability, and c. Other matters requiring his presence The court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone when the offended party failed to appear despite due notice. [Sec. 1(f), Rule 116; Part B(2), A.M. No. 03-109-SC] Duty of the court before arraignment The court shall: a. Inform the accused of his right to counsel; b. Ask him if he desires to have one; and c. Must assign a counsel de officio to defend him, unless the accused: 1. Is allowed to defend himself in person; or 2. Has employed a counsel of his choice [Sec. 6, Rule 116] Before arraignment and plea, the accused may avail of any of the following: a. Motion for bill of particulars: to enable him to properly plead and prepare for trial [Sec. 9, Rule 116] b. Motion to suspend arraignment: upon motion by the proper party, the arraignment shall be suspended in the ff. cases: 1. Accused appears to be suffering from unsound mental condition which effectively renders him unable to fully

REMEDIAL LAW

understand the charge against him and to plead intelligently. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; 2. Existence of a prejudicial question; 3. A petition for review of the resolution of the prosecutor is pending at either the DOJ Secretary or the Office of the President for a period of suspension not exceeding 60 days from filing of petition with the reviewing office. [Sec. 11, Rule 116] c. Motion to quash the complaint or information: on any of the grounds under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117 d. Challenge the validity of the arrest or legality of the warrant or assail the regularity or question the absence of PI of the charge [Sec. 26, Rule 114] If the accused does not question the legality of the arrest or search, this objection is deemed waived [People v. Racho y Raquero, G.R. No. 186529 (2010)] Specific rules a. Accused must personally appear during arraignment and enter his plea; counsel cannot enter plea for the accused. [Sec. 1[b], Rule 116] b. Accused is presumed to have been validly arraigned in the absence of proof to the contrary. [see Sec. 3(m), Rule 131] c. If the accused has not been validly arraigned, the judgment is void. [Riano 394, 2016 Ed., citing Taglay v. Daray, G.R. No. 164258, (2012)]. Note that trial in absentia may be conducted only after valid arraignment. [Sec. 14(2), Art. III, Constitution] d. If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that the accused was able to present evidence and cross examine the witnesses of the prosecution during trial. If an information is amended in substance which changes the nature of the offense (not merely as to form), arraignment on the

Page 400 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

amended information is mandatory. [Teehankee v. Madayag, G.R. No. 103102 (1992)]

2. When a Plea of Not Guilty Should Be Entered a. When the accused so pleaded b. When he refuses to plead or makes a conditional plea [Sec. 1(c), Rule 116] Conditional Plea of Guilty – A plea entered by the accused subject to the proviso that a certain penalty be imposed upon him. It is equivalent to a plea of not guilty. [People v. Madraga, G.R. No. 129299, (2000)] c. When he pleads guilty but presents exculpatory evidence [Sec. 1(d), Rule 116] d. Where the plea of guilty was compelled by violence or intimidation [Riano 402, 2016 Ed., citing People v. Baetiong, 2 Phil. 126] e. When the plea is indefinite or ambiguous [Riano 403, 2016 Ed., citing People v. Strong, G.R. No. L-38626 (1975)] Plea as Admission of Material Facts General Rule: A plea of guilty is a judicial confession of guilt. It is an admission of material facts alleged in the Information, including the circumstances alleged. [People v. Comendador, G.R. No. L-38000 (1980)] Exceptions: a. When the accused did not fully understand the meaning and consequences of his plea Note: In such case, there is a necessity of a rearraignment and retaking of his plea [People v. Nuelan, G.R. No. 123075 (2001)] b. Where the information is insufficient to sustain conviction of the offense charged. [People v. Lopez, G.R. No. 1063, (1947)] c. Where the information does not charge an offense, any conviction thereunder being void d. Where the court has no jurisdiction [Cadimas v. Director of Prisons, G.R. No. L-9725, (1955)]

REMEDIAL LAW

3. When Accused May Enter a Plea of Guilty to a Lesser Offense DURING ARRAIGNMENT Requisites a. The lesser offense is necessarily included in the offense charged b. The plea must be with the consent of both the offended party and the prosecutor c. [Sec. 2, Rule 116] In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone {Sec. 1(f), Rule 116] AFTER ARRAIGNMENT BUT BEFORE TRIAL After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary [Sec. 2, Rule 116] AFTER TRIAL HAS BEGUN After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evidence to establish the guilt of the accused for the crime charged. The judge cannot on its own grant the change of plea [People v. Villarama, G.R. No. 99287 (1992)]

4. Accused Pleads Guilty to Capital Offense; What the Court Should Do Conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: a. Searching inquiry into the voluntariness and full comprehension of the consequences of the pleas; and

Page 401 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

b. Require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused; c. Accused may present evidence in his behalf [Sec. 3, Rule 116] Note: A plea of guilty to a capital offense does not result to an immediate rendering of judgment [Riano, 407, 2016 Ed.]

b.

c.

5. Searching Inquiry A “searching inquiry” means more than informing cursorily the accused that he faces a jail term but so also, the exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony [People v. Bello, G.R. No. 130411-14 (1999)] The procedure in Sec. 3, Rule 116, when the accused pleads guilty to a capital offense, is mandatory. [Riano 407, 2016 Ed., citing People v. Oden, G.R. No. 155511-22 (2004)]

d.

e.

f.

g.

The plea must be clear, definite and unconditional. It must be based on a free and informed judgment. A plea of guilty to a capital offense can be held null and void where the trial court has inadequately discharged the duty of conducting the prescribed "searching inquiry” [People v. Durango, G.R. Nos. 135438-39 (2000)] Rationale This is to enjoin courts to proceed with more care where the possible punishment is in its severest form and to avoid improvident pleas of guilt [People v. Samontanez, G.R. No. 134530 (2000)] Guidelines for conducting a search inquiry a. Ascertain from the accused himself: 1. How he was brought into the custody of the law 2. Whether he had the assistance of a competent counsel during the custodial and preliminary investigations, and

REMEDIAL LAW

3. Under what conditions he was detained and interrogated during the investigations. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. Elicit information about the personality profile of the accused (age, socioeconomic status, and educational background) which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime which is the basis of his indictment. All questions posed to the accused should be in a language known and understood by the latter. The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details [People v. Pastor, G.R. No. 140208 (2002)]

6. Improvident Plea of Guilty to a Capital Offense An improvident plea is one without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice [Black’s Law Dictionary] Effect of an Improvident Plea General rule: Plea of guilty should not be accepted should not be held to be sufficient to sustain a conviction in the following cases: 1. If the accused does not clearly and fully understand the nature of the offense charged 2. If he is not advised as to the meaning and effect of the technical language often used

Page 402 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

in formal complaints and information in qualifying the acts constituting the offense, or 3. If he does not clearly understand the consequences by way of a heavy and even a capital penalty flowing from his admission of his guilt of the crime [People v. De Ocampo Gonzaga, G.R. No. L-48373 (1984)]

information: WON the facts alleged which are hypothetically admitted would establish the essential elements of the crime defined by law.

Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense

Note: A motion to quash based on double jeopardy or extinction of the criminal action or liability, may, by their nature, be based on matters outside of the allegations of the information or complaint [Riano]

When improvident plea may be withdrawn At any time before 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 [Sec. 5, Rule 116] The withdrawal of a plea of guilty is not a matter of right of the accused but of sound discretion of the trial court [People v. Lambino, G.R. No. L-10875 (1958)] The reason for this is that trial has already begun and the withdrawal of the plea will change the theory of the case and put all past proceedings to waste. Moreover, at this point, there is a presumption that the plea was made voluntarily.

H.

MOTION TO QUASH

Nature of motion to quash (MTQ) 1. Mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law or defects which are apparent in the face of the information [Riano 328, 2011 Ed.] 2. Hypothetical admission of the facts alleged in the information Note: Fundamental test in determining sufficiency of the material averments in an

3. Evidence aliunde or matters extrinsic of the information are not to be considered. EXCEPT when admissions made by the prosecution [People v. Dela Rosa, G.R. No. L-34112 (1980)],

Form and contents 1. In writing 2. Signed by the accused or his counsel, and 3. Distinctly specify the factual and legal grounds [Sec. 2, Rule 117] When filed General rule: At any time before entering his plea, the accused may move to quash the complaint or information [Sec. 1, Rule 117] Exception: When the grounds relied upon the motion are: 1. Failure to charge an offense 2. Lack of jurisdiction over the offense charged 3. Extinction of the offense or penalty 4. Accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged They shall not be deemed waived if the accused failed to file MTQ or to allege them in the motion. [Sec. 9, Rule 117] Need not be resolved before issuing warrant of arrest The judge had no positive duty to first resolve the MTQ before issuing a warrant of arrest. Sec. 5(a), Rule 112 required the judge to evaluate the prosecutor's resolution and its supporting evidence within a limited period of only 10 days [De Lima v. Guerrero, G.R. No. 229781 (2017)]

Page 403 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

1. Grounds In general a. Facts charged do not constitute an offense; b. Court trying the case has no jurisdiction over the offense charged; c. Court trying the case has no jurisdiction over the person of the accused; d. officer who filed the information had no authority to do so; e. The information does not conform substantially to the prescribed form; (e.g. if there is no certification) f. More than one offense is charged, except when a single punishment for various offenses is prescribed by law; g. Criminal action or liability has been extinguished; h. Averments which, if true, would constitute a legal excuse or justification; i. 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. [Sec. 3, Rule 117] The following grounds are exclusive. [Galzote v. People, G.R. No. 164682 (2011)] Waiver of Grounds General rule: Failure of the accused to assert any ground on a MTQ before he pleads, either because he did not file MTQ or failed to allege said ground in the MTQ shall be deemed a waiver of any objections Exceptions [OJ-AL-CJA]: a. Facts charged do not constitute an Offense b. Court trying the case has no Jurisdiction over the offense charged c. Criminal Action or Liability has been Extinguished d. Accused has been previously Convicted, or in Jeopardy of being convicted, or Acquitted of the offense charged [Sec. 9, Rule 117] e. Officer who filed information had no authority to do so [Quisay v. People, G.R. No. 216920 (2016)]

REMEDIAL LAW

Note: In cases covered by the Rules on Summary Procedure, MTQ is allowed only if made on the grounds of lack of jurisdiction over the subject matter or failure to comply with barangay conciliation proceedings [Sec. 19, Rules on Summary Procedure]

a. Facts charged do not constitute an offense Where it is clear that the information does not really charge an offense, the case against the accused must be dropped immediately [Dela Chica v. Sandiganbayan, G.R. No. 144823 (2003)] The prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment [Sec. 4, Rule 117]

b. Court has no jurisdiction over the offense charged In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Sec. 15, Rule 110; Lopez v. City Judge, G.R. No. L-25795 (1966)] In private crimes, the complaint of the offended party is necessary to confer authority to the court [Donio-Teves v. Vamenta Jr., G.R. No. L38308 (1984)]

c. Court has no jurisdiction over the person of the accused When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction of the court [Sanchez v. Demetriou, G.R. No. L11171-77 (1993)]

Page 404 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

d. Officer who filed the information had no authority to do so Authority to file and prosecute criminal cases is vested in: 1. Prosecutor a. Prosecutor must have territorial jurisdiction to conduct PI of the offense [Cudia v. CA, G.R. No. 110315 (1998)] b. Prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy must first be obtained [Sec. 4, Rule 112] 2. Any peace officer, or public officer charged with the enforcement of the law, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available [Sec. 5, Rule 110] 3. Commission on Elections regarding violations of election laws [Sec. 2(6), Art. IX-C, Constitution] 4. By the graft investigating officer for any information filed in the Sandiganbayan, with prior approval of the Ombudsman 5. By duly deputized prosecutors and legal officers of the COMELEC for election offenses [Sec. 265, Art. XXII, Omnibus Election Code] Lack of authority of the officer is not cured by silence, acquiescence, express consent or even by amendment. [Cudia v. CA, G.R. No. 110315 (1998)]

e. Complaint or information does not conform substantially to the prescribed form The formal and substantial requirements are provided for in Secs. 6-12, Rule 110. General rule: Lack of substantial compliance renders the accusatory pleading nugatory. Exception: Mere defects in matter of form may be cured by amendment [Sec. 4, Rule 117]

REMEDIAL LAW

Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Sec. 9, Rule 116; Enrile v. People, G.R. No. 213455 (2015)] The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired [Sec. 9, Rule 116]

f. More than charged

one

offense

is

General rule: A complaint or information must charge only one offense [Sec. 13, Rule 110] Exceptions: 1. When the law prescribes a single punishment for various offenses [Sec. 13, Rule 110] 2. Complex and compound crimes, except where one offense was committed to conceal another 3. An offense incidental to the gravamen of the offense charged 4. A specific crime set forth in various counts, each of which may constitute a distinct offense 5. If the accused fails to object; the court may convict as many as are charged and proved and impose on him the penalty for each (Rule 120, Section 3) [People v. Villamor, G.R. No. 124441 (1998)]

g. Criminal action or liability has been extinguished When criminal liability is extinguished: 1. Death of the accused, but liability for pecuniary penalties is extinguished only if death occurs before final judgment; 2. Service of sentence, which must be by virtue of a final judgment and in the form prescribed by law; 3. Amnesty; 4. Absolute pardon; 5. Prescription of the crime; 6. Prescription of the penalty;

Page 405 of 525

U.P. LAW BOC

7. Pardon in private offenses [Art. 89, Revised Penal Code]

h. Contains averments that if true would constitute a legal excuse or justification Examples: 1. Justifying circumstances [Art. 11, RPC] 2. Exempting circumstances [Art. 12, RPC] 3. Absolutory causes

i. Accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his consent

1. Upon demurrer to evidence; [Riano 439, 2016 Ed., citing People v. Tan, G.R. No. 167526 (2010)] 2. Due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent) [Riano 439-440, 2016 Ed., citing Andres v. Cacdac, G.R. No. L-45650 (1982)] Dismissal

See Double Jeopardy below. without

express

This refers only to dismissal or termination of the case. It does not Refer to Part the conviction or acquittal [People v. Labatete, G.R. No. L-12917 (1960)] If consent is not express, dismissal will be regarded as final (i.e., with prejudice to refilling) [Caes v. IAC, G.R. Nos. 74989-90 (1989)] The dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy, except in the following cases: i. Insufficiency of the prosecution’s evidence ii. Denial of the right to a speedy trial [Almario v. CA, G.R. No. 127772 (2001)] When dismissal constitutes acquittal Dismissal constitutes acquittal when it is granted:

Acquittal

Basis for action

Does not Always decide the based on the case on the merits. merits. Defendant’s Does not guilt was not determine proven innocence or beyond guilt reasonable doubt

Does double jeopardy attach?

Double jeopardy will not always attach

i. Double jeopardy

ii. Dismissal consent

REMEDIAL LAW

CRIMINAL PROCEDURE

Double jeopardy always attaches

See Provisional Dismissal below.

2. Distinguish Motion to Quash from Demurrer to Evidence Motion to quash

Demurrer to evidence

When filed

Filed before entering plea [Sec. 1, Rule 117]

Filed after the prosecution has rested its case [Sec. 23, Rule 119]

Basis for grant or denial

Insufficiency of the complaint or information on its face

Based upon the insufficiency of the evidence adduced by the prosecution

Page 406 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

[Sec. 23, Rule 119]

REMEDIAL LAW

before judgment”

Grounds Grounds are Ground is stated in Sec. “insufficiency of 3, Rule 117 evidence” to convict [Sec. 23, Rule 119] Leave of court

Effect of grant

Effect of denial

Remedy

Does not require a prior leave of court [Sec. 1, Rule 117]

May be filed either with leave or without leave of court [Sec. 23, Rule 119]

Court may order the filing of a new complaint or information [Sec. 4, Rule 117]

Grant is deemed an acquittal and would preclude the filing of another information or appeal by the prosecution

The accused proceeds with trial. If convicted, he can appeal and assign as error the denial of the MTQ.

General Rule: Accused does not lost his right to present evidence

If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies

The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari

Exception: if demurrer was filed without leave of court [Sec. 23, Rule 119]

3. Effects of Sustaining Motion to Quash

the

a. Filing another complaint or information General rule: Court may order that another complaint or information be filed [Sec. 5, Rule 117) Exception: If MTQ was based on the following: 1. Criminal action or liability has been extinguished 2. Double jeopardy.

b. Discharge of the accused General rule: If in custody, the accused shall not be discharged unless admitted to bail [Sec. 5, Rule 117] The order granting the MTQ must state either release of the accused or cancellation of his bond. Exception: The accused, if in custody, shall be discharged if: 1. No order is made; or 2. Having been made, no new information is filed within a. The time specified in the order; or b. Such further time as the court may allow for good cause [Sec. 5, Rule 117] Exception to the exception: The accused shall not be discharged if he is in custody for another charge [Sec. 5, Rule 117]

Page 407 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

c. Amendment of the complaint or information General rule: The court shall order that an amendment be made: 1. If the MTQ is based on an alleged defect of the complaint or information which can be cured by amendment 2. If the MTQ is based on the ground that the facts charged do not constitute an offense [Sec. 4, Rule 117] Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense. The prosecution may appeal from the order of quashal to the appellate court.

extinguishme nt of liability or double jeopardy Remedy to be availed of

Appeal after Appeal the trial order

Consequen ce of order

Arraignment

the

Amend information if possible

Note: The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating the special defenses invoked in their MTQ [Serana v. Sandiganbayan, G.R. No. 162059 (2008)]

If the information was quashed because it did not allege the elements of the offense charged, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ [People v. Purisima, G.R. No. L-42050-66 (1978)]

4. Exception to the Rule that Sustaining the Motion is Not a Bar to Another Prosecution

Order denying MTQ

Exception: It will bar another prosecution when the MTQ is based on a. The criminal action or liability has been extinguished; or b. The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged [Sec. 6, Rule 117]

Order granting MTQ

Nature of Order

Interlocutory

Final Order

Appealable ?

Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari

Immediately appealable but subject to rules on double jeopardy

Does not dispose of the case upon its merits

Disposes of the case upon its merits when the ground is the

Is the main case decided on the merits?

General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense

5. Double Jeopardy Double jeopardy presupposes that a first jeopardy has already attached prior to the second and that the first has been terminated because he has already been: (1) convicted; (2) acquitted; or (3) the case against him terminated or dismissed without his express consent. The right against double jeopardy prohibits the prosecution for a crime of which he has been

Page 408 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

previously convicted or acquitted [Caes v. IAC, G.R. No. 74989-90 (1989)] Purpose of the Rule against Double Jeopardy It guarantees that the state shall not be permitted to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. Primarily, it prevents the State from: 1. Suing criminal processes as instrument to harass the accused and wear him out by the multitude of cases 2. Successively retrying the defendant in the hope of securing a conviction 3. Successively retrying the defendant in the hope of securing a greater penalty

REMEDIAL LAW

Effect The conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution a. for the offense charged, or b. for any attempt to commit the same or frustration thereof, or c. for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information [Sec. 7, Rule 117] Double Jeopardy does not apply to these cases 1. Administrative Cases The dismissal of the criminal case does not result in the dismissal of the administrative case because there exists a difference between the 2 remedies.

RULE OF DOUBLE JEOPARDY Requisites to successfully invoke double jeopardy a. A first jeopardy must have attached; b. The first jeopardy must have been validly terminated; and c. The second jeopardy must be for the same offense or the second offense necessarily includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof [People v. Espinosa, G.R. Nos. 153714-20 (2003)]

2. When the same criminal act gives rise to two or more separate and distinct offenses 3. Preliminary investigation (PI) A PI is merely inquisitorial. It is executive in character and is not part of the trial; hence, a PI is not a trial to which double jeopardy attaches. 4. When the first offense was committed under the RPC and the second was committed under a special penal law 5. When two offenses are punished by two separate penal laws

Requisites for first jeopardy to attach a. Valid indictment b. Before a competent court; c. Arraignment d. A valid plea entered, and e. The accused has been convicted or acquitted, or the case dismissed or otherwise validly terminated without his express consent [People v. Honrales, G.R. No. 182651 (2010)] However, a dictated, coerced, and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan, G.R. No. 72670 (1986)] Page 409 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

KINDS OF DOUBLE JEOPARDY Double jeopardy for the same offense

Double jeopardy when an act punished by a law and an ordinance

General Rule

There is identity between the two offenses not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information. [Teehankee Jr. v. Madayag, G.R. 103102 (1992)].

There can still be double jeopardy although the first offense is punishable under an ordinance, while the second is punishable under a law [Art. III, Sec. 21, CONST.]

Exception

a. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; b. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; c. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except when offended party failed to appear during such arraignment. [Sec 7, Rule 117]

When an offense penalized by ordinance is, by definition, different from an offense penalized under a statute. [People v. Relova, G.R. No. L-45129 (1987)]

Test

Whether or not evidence that proves one likewise proves the other. [People v. Ramos, G.R. No. L-15958 (1961)]

Page 410 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

6. Provisional Dismissal Provisional dismissal Provisional dismissal is dismissal without prejudice to its being refiled or revived [Los Baños v. Pedro, G.R. No. 173588 (2009)] Cases are provisionally dismissed where there has already been arraigned and the accused consented to a provisional dismissal. Requisites for a provisional dismissal 1. There must be express consent of the accused; and 2. There must be notice to the offended party [Sec. 8, Rule 117] Time-bar Rule Dismissal becomes permanent: a. One year after issuance of the order without the case having been revived for offenses punishable 1. by imprisonment not exceeding 6 years, or 2. by fine of any amount, or 3. by both b. Two years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 years [Sec. 8, Rule 117] Note: The periods are reckoned from the date or the order of dismissal

moves for the provisional (sin perjucio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case [Sec. 8, Rule 117] b. The offended party is notified of the motion for the provisional dismissal of the case c. The court issues an order granting the motion and dismissing the case provisionally d. The public prosecutor is served with a copy of the order of provisional dismissal of the case [People v. Lacson, G.R. No. 149453 (2003)] A case may be revived by a. Refiling of the information b. Filing of a new information for the same offense or one necessarily included in the original offense charged Requirement of Preliminary Investigation upon Revival of Case General rule: Upon revival of the case, there is no need for a new PI Exceptions: a. If the original witnesses have recanted their testimonials or have died b. If the accused is charged under a new criminal complaint for the same offense c. If the original charge is upgraded d. If the criminal liability is upgraded from accessory to principal

Exception to the periods: The State may revive beyond the periods provided there is a justifiable necessity for the delay. The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the accused. [People v. Lacson, G.R. No. 149453 (2003)]

I.

PRE-TRIAL

Its main objective is to achieve an expeditious resolution of the case. This proceeding is mandatory in criminal cases and is conducted before trial [Sec. 1, Rule 118]

What to file? Motion for permanent dismissal [Prof. Sanidad] The following are conditions sine qua non for the application of the time-bar rule a. The prosecution, with the express conformity of the accused, or the accused Page 411 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

1. Matters to Be Considered During Pre-Trial Coverage All criminal cases cognizable by the Sandiganbayan, RTC, MeTC, MTCC, MTC and MCTC [Sec. 1, Rule 118] Period General rule: The court shall order a pre-trial conference after arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused. Exception: A shorter period may be provided by special laws or SC circulars [Sec. 1, Rule 118] Things considered a. Plea bargaining b. Stipulation of facts c. Marking for identification of evidence d. Waiver of objections to admissibility of evidence e. Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial) f. Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case [Sec. 1, Rule 118] Plea bargaining Plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval" [Estipona Jr. v. Lobrigo, G.R. No. 226679 (2017)] It usually involves the defendant pleading guilty to a lesser offense or to one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge [People v. Mamarion, G.R. No. 137554 (2003)] The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information, except when the plea of guilty to a

REMEDIAL LAW

lesser offense is without the consent of the offended party and the prosecutor [People v. De Luna, G.R. No. L-77969 (1989); Sec. 7(c), Rule 117, see Sec. 2, Rule 116] With Sec. 23 of R.A. 9165 being declared unconstitutional in Estipona Jr. v. Lobrigo [G.R. No. 226679 (2017)], offenses involving dangerous drugs may now be the subject of plea bargain [see DOJ Circular No. 61 (2017)] Stipulation of facts General Rule: Stipulation of facts is allowed in criminal cases Exception: Circumstances that qualify a crime and increases its penalty to death cannot be the subject of stipulation [People v. Sitao, G.R. No. 146790 (2002)] Marking for identification of evidence No evidence may be presented and offered during trial other than those identified and marked during the pre-trial, except when allowed by the court for good cause shown. Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence. [People v. Santiago, G.R. No. L80778 (1989)] Role of the judge before pre-trial During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between the parties [Item B.7, A.M. No. 03-1-09-SC]

2. What the Court Should Do When Prosecution and Offended Party Agree to the Plea Offered by the Accused The Court shall: a. Issue an order which contains the plea bargaining arrived at b. Proceed to receive evidence on the civil aspect of the case; and

Page 412 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

c. Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence [Item B.5, A.M. No. 03-1-09-SC] General rule: Court approval is required. Exception: Agreements not covering matters referred to in Sec. 1, Rule 118 (supra), need not be so approved [Item B.8, A.M. No. 03-109-SC]

REMEDIAL LAW

Note: The accused is not required to attend (unless ordered by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference, if he agrees to the contents of such. The complainant is also not required to appear during pre-trial. It is the prosecutor who is required to appear at the pretrial [People v. Judge Tac-An, G.R. No. 148000 (2003)]

Effect The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated [Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)])

The court may impose proper sanctions or penalties, if counsel for the accused or the prosecutor to enforce the mandatory character of the pre-trial in criminal cases: a. Does not appear at the pre-trial conference; and b. Does not offer an acceptable excuse for his lack of cooperation [Sec. 3, Rule 118]

3. Pre-Trial Agreement

5. Pre-Trial Order

Requirements a. Reduced in writing; b. Signed by the accused and counsel; c. With approval of court if agreements cover matters in Sec. 1, Rule 118 [Sec. 2, Rule 118]

Pre-trial order shall: a. Be issued by the trial judge; b. Be issued within 10 days after the termination of the pre-trial c. Contain the following: 1. Actions taken 2. Facts stipulated 3. Evidence marked 4. Admissions made 5. Number of witnesses to be presented; and 6. Schedule of trial

Effects: 1. Constitutional right to present evidence is waived [Rivera v. People, G.R. No. 163996 (2005)] 2. If the requisites are not followed – admissions shall be inadmissible as evidence [Item I-B[8], A.M. No. 03-1-09-SC (2004)] All proceedings during pre-trial shall be: 1. Recorded 2. Transcripts prepared 3. Minutes signed by the parties and their counsel

4. Non-Appearance during PreTrial Who must be present during pre-trial 1. Counsel of accused 2. Prosecutor

Effect a. Binds the parties b. Limits the trial to those matters not disposed of; and c. Controls the course of the action during trial, unless modified by the court to prevent manifest injustice [Sec. 4, Rule 118] The procedure is substantially the same in civil cases, except that any modification of the pretrial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases.

Page 413 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

APPLICATION OF JUDICIAL AFFIDAVIT RULE a. The Judicial Affidavit Rule shall apply to all criminal actions: 1. Where the maximum of the imposable penalty does not exceed six years; 2. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or 3. With respect to the civil aspect of the actions, whatever the penalties involved are. b. The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. c. If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. [Sec. 9, AM 12-8-8-SC]

J.

TRIAL

1. Instances When Presence of Accused is Required by Law Right of the Accused to be Present In all criminal prosecutions, the accused shall have the right to be present and defend in person and by counsel at every stage of the

REMEDIAL LAW

proceedings, from arraignment to promulgation of the judgment [Sec. 1(c), Rule 115]. Instances where presence of accused is mandatory [AP]: a. At Arraignment; [Sec. 1(b), Rule 116] b. At the Promulgation of judgment, unless the conviction is for a light offense [Sec. 6, Rule 120] Waiver of right to be present General rule: The accused may waive his presence at the trial pursuant to the stipulations set forth in his bail [Sec. 1(c), Rule 115] Exception: Unless his presence is specifically ordered by the court for purposes of identification [Sec. 1(c), Rule 115] Exception to the exception: The presence of the accused is no longer required when he unqualifiedly admits in open court after arraignment that he is the person named as defendant in the case on trial [Carredo v. People, G.R. No. 77542, March 19, 1990] Other instances of waiver [WE] a. The absence of the accused Without justifiable cause at the trial of which he had notice b. When an accused under custody Escapes until custody over him is regained [Sec. 1(c), Rule 115]

2. Suspension on Account of Absence of Witnesses Effect of Absence of Witness Any period of delay resulting from the absence or unavailability of an essential witness shall be excluded in computing the time within which trial must commence [Sec. 3, Rule 119] Requisites for exclusion of the period of delay: [AUE] a. Witness is Absent or Unavailable ● “Absent”: whereabouts are unknown or cannot be determined by due diligence

Page 414 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE



“Unavailable”: whereabouts are known but presence for trial cannot be obtained by due diligence b. Witness must be Essential [Sec. 3(b), Rule 119] ● “Essential”: indispensable, necessary, or important in the highest degree [Riano 530, 2011 Updated Ed., citing 5 Black’s Law Dictionary 490] Motion for Bail: A remedy to secure appearance of a material witness Either party may file a motion for bail with proof/under oath that a material witness will testify when required. When the court is satisfied of such, it may order the witness to post bail. Effect of refusal to post bail If the material witness refuses to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. [Sec. 14, Rule 119]

3. Trial in absentia Requisites for Trial in Absentia [ANU] a. Accused has been Arraigned b. He was duly Notified of trial c. His failure to appear is Unjustified [Bernardo v. People, G.R. No. 166980 (2007)] Purpose This is to speed up disposition of cases. [People v. Agbulo, G.R. No. 73875 (1993)]

4. Remedy When Accused is not Brought to Trial within the Prescribed Period Right to Speedy Trial: A Constitutional Right No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Sec. 14(2), Art. III, Constitution [Sec. 10, Rule 119]

REMEDIAL LAW

Purpose of Right to Speedy Trial The rights of the accused to a speedy trial and speedy disposition of the case are meant to prevent the oppression of the accused by holding criminal prosecution, suspended over him for an indefinite time, and to prevent delays in the administration of justice. [Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)] Important Periods to Observe 1. Between acquisition of jurisdiction over the person of the accused to arraignment and pre-trial: a. Detained accused: Within 10 days b. Non-detained accused: Within 30 days [A.M No 15-06-10-SC, III No 8] 2. Between receipt of pre-trial order to trial: Within 30 days [Sec. 1, Rule 119] 3. Periods of delay excluded from the computation [Sec. 3, Rule 119] Factors to consider when assessing denial of right to speedy trial [DRAP] a. Duration of the delay b. Reason therefor c. Assertion of the right or failure to assert it, and d. Prejudice caused by such delay [Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)] Remedy Motion to dismiss on the ground of denial of his right to speedy trial. [Sec. 9, Rule 119] Dismissal on the ground of violation of the right to speedy trial has an effect similar to that of acquittal The dismissal shall be subject to the rules on double jeopardy. [Sec. 9, Rule 119] Waiver of Right to Speedy Trial Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss on the ground of denial of his right to speedy trial [Sec. 9, Rule 119] When there is no violation of the right to speedy trial There is no violation of the right where the delay is imputable to the accused. When the

Page 415 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

accused resorts to tactical maneuvers, he waives his right to speedy trial. [People v. Jardin, G.R. Nos. L-33037-42 (1983)] Right to Speedy Trial v. Right to Speedy Disposition of Cases Right to Speedy Right to Speedy Disposition of Trial Cases Reckoning Point First day of trial Date when the case is submitted for decision Application N/A When considering delay for the purpose of dismissal on the ground of violation of right to speedy disposition, delay “pre-trial” may be considered (i.e., delay during preliminary investigation) [Cosculluela v. Sandiganbayan, G.R. No. 191411 (2013)] Burden of proof a. The accused has the burden of proving the ground of denial of right to speedy trial for the motion. b. The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Sec. 3, Rule 119. [Sec. 9, Rule 119]

5. Requisites for Discharge of the Accused to Become a State Witness Requisites for Discharge to be Proper [TRHS] a. Two or more persons are jointly charged with the commission of any offense.

REMEDIAL LAW

b. The prosecution files the motion before Resting its case c. The prosecution is required to present evidence and the sworn statement of each proposed state witness at a Hearing in support of the discharge d. The court is Satisfied that the conditions required by the Rules are present. [Sec. 17, Rule 119] Requisites as to the Testimony to be a State Witness [ANCoMM] a. Absolute necessity for the testimony of the accused whose discharge is requested • He alone has the knowledge of the crime, and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution [Flores v. Sandiganbayan, G.R. No. L-63677 (1983)]; b. There is No other direct evidence available for the proper prosecution of the offense, except the testimony of the said accused c. The testimony can be substantially Corroborated in its material points d. The accused does not appear to be the Most guilty e. The accused has not, at any time, been convicted of any offense involving Moral turpitude [Sec. 17, Rule 119]

6. Effects of Discharge of Accused as State Witness Effects of Discharge as State Witness a. Evidence adduced in support of the discharge shall automatically form part of the trial [Sec. 17, Rule 119] • Note: If the motion to discharge is denied, the sworn statement is inadmissible as evidence. b. Discharge operates as an acquittal and a bar to further prosecution for the same offense [Sec. 18, Rule 119] Exception: When the accused fails or refuses to testify against his co-accused Notes: ● Any error in asking for and in granting the discharge cannot deprive the one

Page 416 of 525

U.P. LAW BOC



CRIMINAL PROCEDURE

discharged of the acquittal and the constitutional guaranty against double jeopardy [People v. Verceles, G.R. No. 130650 (2002)] Subsequent amendment of the information does not affect discharge [People v. Taruc, G.R. No. L-14010 (1962)]

7. Demurrer to Evidence What is a Demurrer A demurrer to evidence is a motion to dismiss due to the insufficiency of the evidence presented by the prosecution to overturn the presumption of innocence in favor of the accused. [Riano 490, 2016 Ed.] Dismissal on the Grounds of Insufficiency of Evidence a. May be initiated by the court motu proprio, after giving the prosecution the opportunity to be heard; or b. Upon demurrer to evidence filed by the accused [Sec. 23, Rule 119] How Demurrer to Evidence is Made 1. With Leave of Court: ● Oral Motion: After the prosecution has rested its case, the court shall inquire from the accused if he desires to move for leave of court to file a demurrer to evidence or proceed with the presentation of his evidence. If the accused orally moves for leave of court to file a demurrer to evidence, the court shall orally resolve the same [A.M No 15-06-10-SC, III No 13 (d)] ● Written Motion: It must specifically state its grounds. Filed within a nonextendible period of 5 days after the prosecution rests its case. Prosecution may then oppose within a nonextendible period of 5 days from receipt. [Sec. 23, Rule 119] ● If leave of court is granted, the demurrer must be filed within a nonextendible period of 10 days from the date leave of court is granted, and the corresponding comment shall be filed within a non-extendible period of 10

REMEDIAL LAW

days from receipt of demurrer to evidence. [A.M No 15-06-10-SC, III No 13 (d)] 2. Without Leave of Court: If despite the denial of the motion for leave, the accused insists on filing the demurrer to evidence, the previously scheduled dates for the accused to present evidence shall be cancelled. [A.M No 15-06-10-SC, III No 13 (d)] Test of Sufficiency of Prosecution’s Evidence: The evidence of the prosecution must prove beyond reasonable doubt the: a. Commission of the crime; and b. Precise degree of participation of the accused [Singian, Jr.v. Sandiganbayan, G.R. Nos. 195011-19 (2013)] Effect of granting demurrer The court dismisses the action on the ground of insufficiency of evidence [Sec. 23, Rule 119] This amounts to acquittal of the accused [People v. Sandiganbayan, G.R. No. 164577 (2010)] Note: The order granting the demurrer is not appealable but may be reviewed via certiorari under Rule 65 [People v. Sandiganbayan, G.R. No. 164577 (2010)] Effect of denial of motion for leave to file demurrer a. Accused may choose between 1. Filing the demurrer even without leave, or 2. Adducing evidence for his defense [Sec. 23, Rule 119] b. Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment [Sec. 23, Rule 119]; Procedure if there are several accused If there are 2 or more accused and only one presents a demurrer without leave of court: ● the court may defer resolution until decision is rendered on the other accused.

Page 417 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his coaccused, then the demurrer is deemed resolved Right of the accused to present evidence after demurrer is denied Filed Filed with without leave leave of court of court Waives the May adduce right to Right to evidence in present Present his defense evidence Evidence [Sec. 23, [Sec. 23, Rule 119] Rule 119] Purpose is to determine Submits the whether or case for not the judgment on Purpose demurrer the basis of was filed the evidence merely to for the stall the prosecution proceedings Demurrer in a Civil Case v. Criminal Case Civil Criminal Case Case Failure of Insufficiency of plaintiff to evidence Premise show that he is entitled to relief Requires no May be filed with Leave of leave of or without leave Court court of court Denial of Accused may demurrer lose his right to does not present Right to make the evidence if he present defendant filed the evidence lose his right demurrer to present without leave of evidence court

Appeal

Motu proprio

Grant of demurrer entitles plaintiff to appeal and if dismissal is reversed, the defendant is deemed to have waived his right to present evidence Cannot be done by court motu proprio

No appeal is allowed because the grant is tantamount to acquittal

Court may on its own initiative dismiss the action after giving prosecution an opportunity to be heard

8. Guidelines on Continuous Trial (A.M. No. 15-06-10-SC) a. Applicability Cases to which the Guidelines Apply 1. Newly filed criminal cases, including those governed by Special Laws and Rules, in the First and Second Level Courts, the Sandiganbayan and the Court of Tax Appeals as of Sept 1, 2017 2. Pending criminal cases with respect to the remainder of the proceedings Note: These guidelines are not applicable to cases covered by the Rule on Summary Procedure

b. Prohibited Motions

and

Meritorious

Prohibited Motions [JPreReQBAS] The following motions are prohibited and shall be denied outright before the scheduled

Page 418 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

arraignment without need of comment and/or opposition: 1. Motion for Judicial determination of probable cause 2. Motion for Preliminary Investigation: a. When it is filed beyond the 5-day reglementary period in inquest proceedings under Sec. 6, Rule 112 b. When required under Sec. 8, Rule 112, or allowed in inquest proceedings and the accused failed to participate in the preliminary investigation despite due notice 3. Motion for Reinvestigation of the prosecutor recommending the filing of information once the information has been filed before the court: a. If the motion is filed without prior leave of court b. When preliminary investigation is not required under Sec. 8, Rule 112, and c. When the regular preliminary investigation is required and has been actually conducted and the grounds relied upon in the motion are not meritorious, such as issues of credibility, admissibility of evidence, innocence of the accused, or lack of due process when the accused was actually notified, among others 4. Motion to Quash Information when the ground is not one of those stated in Sec. 3, Rule 117 5. Motion for Bill of particulars that does not conform to Sec. 9, Rule 116 6. Motion to suspend Arraignment based on grounds not stated under Sec. 11, Rule 116 7. Petition to Suspend criminal action on the ground of Prejudicial question, when no civil case has been filed, pursuant to Sec. 7, Rule 111 Meritorious Motions [WASSlapp] Motions that allege plausible grounds supported by relevant documents and/or competent evidence, except those that are already covered by the Revised Guidelines, are meritorious motions, such as: 1. Motion to Withdraw information, or to downgrade the charge in the original

REMEDIAL LAW

information, or to exclude an accused originally charged therein, filed by the prosecution as a result of a reinvestigation, reconsideration, and review 2. Motion to Quash Warrant of Arrest 3. Motion to Quash Search Warrant under Sec. 14 of Rule 121 or motion to suppress evidence 4. Motion to dismiss on the ground that criminal case is a Strategic Lawsuit against Public Participation (SLAPP) under Rule 6 of the Rules of Procedure for Environmental Cases

c. Arraignment and Pre-Trial Schedule of Arraignment and Pre-Trial ● If accused is detained: within 10 calendar days from receipt of case ● If accused is not detained: within 30 calendar days from acquiring jurisdiction over the person Notice of Arraignment and Pre-Trial Notice shall be sent to the accused, his counsel, private complainant or complaining law enforcement agent, public prosecutor, and witnesses whose names appear in the information for purposes of plea bargaining, arraignment and pre-trial. [A.M No 15-06-10SC, III No 8(b)] Waiver of Reading of the Information The court may allow a waiver of the reading of the information if: a. There are multiple cases, b. There is personal examination of the accused by the court, c. Full understanding and express consent of the accused and his counsel, d. Such consent is expressly stated in both the minutes/certificate of arraignment and order of arraignment, e. The court shall explain the waiver to the accused in a language/dialect known to him and ensure his full understanding of the consequences [A.M No 15-06-10-SC, III No 8(c)]

Page 419 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Plea Bargaining Except in Drug Cases If the accused desires to enter a plea of guilty to a lesser offense, plea bargaining shall immediately proceed, provided the private offended party in private crimes, or the arresting officer in victimless crimes, is present to give his consent with the conformity of the public prosecutor to the plea bargaining. Thereafter, judgement shall be immediately rendered in the same proceedings. [A.M No 15-06-10-SC, III No 8(d (i))]

REMEDIAL LAW

Marking of Evidence The documentary evidence of the prosecution and the accused shall be marked. [A.M No 1506-10-SC, III No 8(f (iii))] Pre-Trial Order The Pre-trial Order shall immediately be served upon the parties and counsel on the same day after the termination of the pre-trial. [A.M No 15-06-10-SC, III No 8(f (iv))]

d. Trial and Memoranda Plea of Guilty to the Crime Charged in the Information If the accused pleads guilty to the crime charged in the information, judgement shall be immediately rendered except in those cases involving capital punishment. [A.M No 15-0610-SC, III No 8(d (ii))] Where No Plea Bargaining or Plea of Guilty Takes Place If the accused does not enter a plea of guilty, the court shall immediately proceed with the arraignment and the pre-trial. [A.M No 15-0610-SC, III No 8(d (iii))] Arraignment and Preliminary Conference of Mediatable Cases Subject to the Rule on Summary Procedure The arraignment and preliminary conference shall be held simultaneously and the court shall take up all the matters required under Sec. 14, Rule on Summary Procedure during the preliminary conference. [A.M No 15-06-10-SC, III No 8(e)] Absence of parties in the pre-trial The court shall proceed with the pre-trial despite the absence of the accused and/or private complainant, provided: a. They were duly notified, and b. The counsel for the accused and public prosecutor are present. [A.M No 15-06-10SC, III No 8(f (i))] Stipulations Proposals for stipulations shall be done with the active participation of the court itself and shall not be left alone to the counsels. [A.M No 15-06-10-SC, III No 8(f (ii))]

TRIAL Examination of witnesses The court shall encourage the accused and the prosecution to avail of: a. For the accused: Application for examination of witness for the accused before trial [Sec. 12 and 13, Rule 119] b. For the prosecution: Conditional Examination of Witness for the prosecution [Sec. 15, Rule 119; A.M No 15-06-10-SC, III No 13 (a)]

Absence of counsel de parte In the absence of the counsel de parte, the hearing shall proceed upon appointment by the court of a counsel de officio. [A.M No 15-06-10SC, III No 13 (b)] Oral Offer of Evidence • How made: the offer of evidence, the comment/objection thereto, and the court ruling shall be made orally. o If exhibits are attached to the record: In making the offer, the counsel shall cite the specific page number of the court record where the exhibits being offered are found. The court shall ensure that all exhibits offered are submitted to it on the same day of the offer. o If the exhibits are not attached to the record: the party making the offer must submit the same during the offer of evidence in open court. • When made: on the same day after the presentation of his last witness, the opposing party is required to immediately

Page 420 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

o

interpose his oral comment/objection thereto. Thereafter, the court shall make a ruling on the offer of evidence in open court [A.M No 15-06-10-SC, III No 13 (c)] Presentation of Rebuttal and Sur-rebuttal Evidence If the court grants the motion to present rebuttal evidence, the prosecution shall immediately proceed with its presentation after the defense has rested its case, and orally rest its case in rebuttal after the presentation of its last rebuttal witness. Thereafter, the accused shall immediately present sur-rebuttal evidence, if there is any, and orally rest the case after the presentation of its last sur-rebuttal witness. Thereafter, the court shall submit the case for decision. [A.M No 15-06-10-SC, III No 13 (e)] One day examination of witness rule The court shall strictly adhere to the rule that a witness has to be fully examined in one day. [A.M No 15-06-10-SC, III No 13 (f)] MEMORANDA Submission of Memoranda • Submission of memoranda is discretionary on the part of the court • Format: o Does not exceed 25 pages o Single spaced o Legal sized paper o Size 14 font • Period to submit shall be non-extendible and shall not suspend the running of the period of promulgation of the decision. With or without memoranda, the promulgation shall push through as scheduled. [A.M No 15-06-10-SC, III No 14]

e. Promulgation Schedule of Promulgation • Date of promulgation shall be announced in open court and included in the order submitting the case for decision • Date shall not be more than 90 calendar days from the date the case is submitted for decision

Exception: Case is covered by Special Rules and other laws which provide for a shorter period [A.M No 15-06-10-SC, III No 16(a)]

Resolution of motion for reconsideration of judgment of conviction or motion for new trial A motion for reconsideration of judgment of conviction or motion for new trial filed within 15 days from promulgation shall be resolved within a non-extendible period of 10 calendar days from the submission of the comment of the prosecution. With or without comment, the court shall resolve the motion within the 10-day period. [A.M No 15-06-10-SC, III No 16(b)]

K.

JUDGMENT

Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any [Sec. 1, Rule 120]

1. Requisites of a Judgment Requisites a. Written in the official language Note: If given verbally, it is incomplete [People v. Catolico, G.R. No. L-31260 (1972)] b. Personally and directly prepared by the judge c. Signed by the judge d. Contains clearly and distinctly a statement of the facts and the law upon which judgment is based [Sec. 1, Rule 120] There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed.

Page 421 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Jurisdictional requirements a. Jurisdiction over the subject matter b. Jurisdiction over the territory c. Jurisdiction over the person of the accused [Riano, 499, 2016 Ed., citing Cruz v. CA, G.R. No. 123340 (2002) and Antiporda v. Garchitorena, G.R. No. 133289 (1999)] Judge who renders decision The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. But the judge who only took over can render a valid decision by relying on the transcript. It does not violate due process [People v. Badon, G.R. No. 126143 (1999)]

2. Contents of Judgment a. Conviction The judgment of conviction shall state [LQ-PPe-CD]: 1. The Legal Qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission 2. The Participation of the accused in the offense, whether as principal, accomplice or accessory after the fact 3. The Penalty imposed upon the accused 4. The Civil liability or Damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived. [Sec. 2, Rule 120]

fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense [Sec. 3, Rule 120] Variance between allegation and proof (Variance Doctrine) General rule: The defendant can be convicted only of the crime with which he is charged [Riano 504, 2016 Ed.] However, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal [People v. Noque, G.R. No. 175319 (2010)] Exception: Accused shall be convicted if: a. Offense proved which is included in the offense charged (offense proved is lesser) – some or all of the ingredients of the offense charged constitutes the offense proved Example: Murder includes homicide; Serious physical injuries includes less serious or slight physical injuries; Robbery includes theft [Riano] b. Offense charged which is included in the offense proved (offense charged is lesser) – essential ingredients of the offense charged constitute or form part of the ingredients of the offense proven Example: Less serious physical injuries are included in serious physical injuries; Acts of lasciviousness are included in rape; Theft is included in robbery [Riano]

The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it. Judgment for two or more offenses Also known as duplicitous complaint or information [Prof. Sanidad] When two or more offenses are charged in a single complaint or information but the accused

REMEDIAL LAW

Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven [People v. Llaguno, G.R. No. 91262 (1998)]

Page 422 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense.

b. Acquittal The judgment of acquittal shall state whether: 1. The evidence of the prosecution absolutely failed to prove the guilt of the accused; or 2. Merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission complained from which the civil liability might arise did not exist. [Sec. 2, Rule 120]

Acquittal Effect

Decision is based on

Dismissal

Terminates the case Decision on Not on the the merits merits but no based on a finding that finding that accused is the accused not guilty is not guilty

Effect of Acquittal on Civil Liability General Rule: Acquittal based on failure to prove guilt beyond reasonable doubt does not extinguish the civil liability arising from his acts. [Lontoc v. MD Transit, G.R. No. L-48949 (1988)] Exception: Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist [Lontoc v. MD Transit, G.R. No. L-48949 (1988)] Thus: 1. The court may nonetheless hold the accused civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter. 2. The losing party may appeal the ruling on the civil liability, as in any other ordinary

REMEDIAL LAW

appeal, in his name and not in the name of the People. The Court is not precluded from expressing disapproval of certain acts General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. Exception: The court is not permitted to censure the accused in a judgment for acquittal – no matter how light, a censure is still a punishment.

3. Promulgation of Judgment; Instances of Promulgation of Judgment in Absentia IN GENERAL Promulgation of judgment is an official proclamation or announcement of the decision of the court [Pascua v. Court of Appeals, G.R. No. 140243 (2000), citing Jacinto, Sr. 521, Commentaries and Jurisprudence on the Revised Rules of Court [Criminal Procedure], 1994 Ed.] Requisites a. There must be a court legally organized or constituted; and there must be a judge, or judges, legally appointed or elected and actually acting, either de jure or de facto [Luna v. Rodriguez, G.R. No. 12647 (1917)] b. Said judgment must be duly signed and promulgated during the incumbency of the judge who penned it [Payumo v. Sandiganbayan, G.R. No. 151911 (2011)] c. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered [Sec. 6, Rule 120] Failure to promulgate Where there is no promulgation of judgment, no right to appeal accrues. Merely reading the dispositive portion of the decision is not sufficient [Pascua v. CA, G.R. No. 140243 (2000)]

Page 423 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Notice for promulgation The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address [Sec. 6, Rule 120] PROMULGATION CIRCUMSTANCES

IN

CERTAIN

a. When the judge is absent or outside the province or city The judgment may be promulgated by the clerk of court [Sec. 6, Rule 120].

b. Where Presence of Accused Is Required; Exceptions

REMEDIAL LAW

copy at the accused’s last known address or through counsel [Sec. 6, Rule 120]

c. If the accused is confined or detained in another province or city The judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court [Sec. 6, Rule 120]

d. Promulgation when a judge is no longer a judge

General rule: Presence of the accused is mandatory in the promulgation of judgment. Exception: If the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative [Sec. 6, Rule 120]

A judgment promulgated after the judge who signed the decision has ceased to hold office is not valid and binding. In like manner, it cannot be promulgated after the retirement of the judge [Nazareno v. CA, G.R. No. 111610 (2002)]

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the Rules against the judgment and the court shall order his arrest.

4. Instances when Becomes Final

However, within 15 days from promulgation of judgment, he may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence. If he proves his absence was for a justifiable cause, he shall be allowed to avail of the remedies within 15 days from notice [Sec. 6, Rule 120; People v. De Grano, G.R. No. 167710 (2009)] Effect of failure of the accused to appear at the scheduled date of promulgation Promulgation is made by recording the judgment in the criminal docket and serving a

Judgment

Modification of judgment A judgment of conviction may, upon motion of the accused, be modified or set aside before the judgment becomes final or before appeal is perfected [Sec. 7, Rule 120, Rules of Court]

When does judgment become final a. After the lapse of the period for perfecting an appeal; b. When the sentence has been partially/totally satisfied or served; c. The accused has waived in writing his right to appeal; d. When the accused has applied for probation; and

Page 424 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

of the accused. [Aguilar v. Court of Appeals, G.R. No. 114282 (1995)]

Note: Appeal and Probation are mutually exclusive remedies. It is implicit in an application for probation that there is an admission of guilt. [Prof. Bautista]

Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. [Sec. 2(a), Rule 121; Tabobo v. People, G.R. No.220977 (2017)]

e. Judgment also becomes final when judgment is an acquittal [People v. Sandiganbayan, G.R. No. 164577 (2010)] Exception: where the death penalty is imposed [Sec. 7, Rule 120] After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors. See Quirino v. PNB [G.R. No. L9159 (1957)] Remedies of the Accused against a Judgment of Conviction 1. Modification of judgment [Sec. 7, Rule 120] 2. Reopening of proceedings [Sec. 24, Rule 119] 3. Motion for new trial [Sec. 1, Rule 121] 4. Motion for reconsideration [Sec. 1, Rule 120] 5. Appeal from judgment [Rule 122]

REMEDIAL LAW

b. New and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment See Part L.3 of this (Criminal Procedure) reviewer [Sec. 2, Rule 121]

2. Grounds for Reconsideration The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings [Sec. 3, Rule 121]

3. Requisites Before a New Trial May be Granted on Ground of Newly Discovered Evidence

L. NEW TRIAL OR RECONSIDERATION 1. Grounds for New Trial a. Errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial General rule: Errors of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity [CenizaManantan v. People, G.R. No. 156248 (2007)] Exception: They become an error of law or irregularity when acquittal would, in all probability, have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel

The evidence a. Was discovered after the trial b. Could not have been discovered and produced at the trial even with the exercise of reasonable diligence c. Is material, not merely cumulative/ corroborative/impeaching; and d. Is of such weight that it would probably change the judgment if admitted [Tadeja v. People, G.R. No. 145336 (2013)] The accused has the burden of proving item (b) above [US v. Torrente, G.R. No. 1001 (1922)] The determinative test is the presence of due or reasonable diligence to locate the thing to be used as evidence in the trial [Briones v. People, G.R. No. 156009 (2009)]

Page 425 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Interest of justice as gauge for introduction of new evidence In People v. Almendras [G.R. No. 145915 (2003)], the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of justice. In that case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel’s gross mistake and negligence. Form of motion for reconsideration & new trial a. Must be in writing b. Must state the grounds on which it is based c. If based on newly-discovered evidence, motion must be supported by: 1. the affidavits of the witnesses by whom such evidence is expected to be given, or 2. duly authenticated copies of documents which are proposed to be introduced in evidence Notice of the motion shall be given to the prosecutor [Sec. 4, Rule 120]

4. Effects of Granting a New Trial or Reconsideration In general a. The original judgment set aside or vacated; and b. A new judgment is rendered accordingly [Sec. 6, Rule 121] Other effects of granting new trial or reconsideration depending on ground Action of Ground Effect the court All Errors of law proceedings The court or and evidence will allow irregularities affected shall introduction committed be set aside of additional during the and taken evidence in trial anew. the interest If error or of justice. irregularity

REMEDIAL LAW

goes into the jurisdiction, the entire proceeding is void and must be set aside. Evidence already adduced shall stand and the newlydiscovered Newlyand such discovered other evidence evidence shall be taken and considered together with the evidence already in the record. [Sec. 6, Rule 121]

The court will allow introduction of other such evidence in the interest of justice.

Applying the Neypes doctrine in criminal cases The Neypes doctrine allows a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order denying a MNT or MR. Neypes v. CA [G.R. No. 141534 (2005)] declared that: “Henceforth, this ‘fresh period rule’ shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.” The “fresh period rule” enunciated in Neypes also applies to criminal actions, particularly to Sec. 6 of Rule 122 [Yu v. Tatad, G.R. No. 170979 (2011)

Page 426 of 525

U.P. LAW BOC

M.

REMEDIAL LAW

CRIMINAL PROCEDURE

APPEAL

1. Effect of an Appeal An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment WON it is made the subject of assignment of errors [People v. Calayca, G.R. No. 121212 (1999)]

2. Where to Appeal For cases decided by

Appeal to Regional Trial Court [Sec. 2(a), Rule 122] Court of Appeals or Supreme Court (in proper cases provided by law) [Sec. 2(a), Rule 122]

MTC/MeTC/MCTC RTC

RTC or MTC/MeTC/ MCTC (if it is government Sandiganbayan duty-related, i.e., filed under E.O. 1, 2, 4 and 14[Sec. 4 (c) PD 1606 as amended by RA 8249] A) Supreme Court Court of Appeals [Sec. 2(a), Rule 122]

3. How Appeal Taken The right to appeal is not a natural right nor a part of due process but merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law [Estarija v. People, G.R. No. 173990 (2009)] Decided by MTC/MeTC/MCTC

Appeal to RTC [Sec. 3(a), Rule 122] Court of Appeals [Sec. 3(a), Rule 122]

RTC (original jurisdiction)

RTC (appellate jurisdiction) RTC (where penalty imposed is (a) reclusion perpetua, (b) life

Court of Appeals [Sec. 3(b), Rule 122] Court of Appeals [Sec. 3(c), Rule 122]

Mode (1) Filing of notice of appeal with the court which rendered the order appealed from, and (2) serving a copy thereof to the adverse party Petition for review (Rule 42) (1) Filing of notice of appeal with the court which

Page 427 of 525

Period to File Appeal Within 15 days from (a) promulgation of the judgment, or (b) from notice of the final order appealed from. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been

U.P. LAW BOC

CRIMINAL PROCEDURE

imprisonment, or (c) where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense RTC (where penalty imposed is death penalty)

REMEDIAL LAW

rendered the order appealed from, and (2) serving a copy thereof to the adverse party

served upon accused or counsel.

the his

Court of Appeals [Sec. 3(d), Rule 122]

Automatic Review as provided in Sec. 10, Rule 122

Automatic Review; hence, no period to file appeal

Supreme Court [Sec. 3(e), Rule 122]

Petition for review on Certiorari [Rule 45]

Within 15 days from notice of judgment/final order/denial of motion for new trial or motion for reconsideration.

[Sec. 6, Rule 122]

Note: R.A. 9346 now prohibits the imposition of the death penalty

Court of Appeals (where penalty is not the Death Penalty, reclusion perpetua, or life imprisonment)

Court of Appeals (where penalty is the Death Penalty, reclusion perpetua, or life imprisonment

Note: Should only raise questions of law and should raise the errors of the CA (not the RTC’s) [Batistis v. People, G.R. No. 181571 (2009)] Supreme Court [Sec. 13(c), Rule 122]

Filing of Notice of Appeal with the Court of Appeals

All other appeals to the SC

Petition for review on certiorari [Rule 45

Page 428 of 525

An extension of 30 days may be granted, subject to the court’s discretion [Sec. 2, Rule 45]. Automatic review

U.P. LAW BOC

CRIMINAL PROCEDURE

Who may appeal General rule: Any party may appeal from a judgment or final order [Sec. 1, Rule 122] Exceptions: a. A party may not appeal if the accused will be placed in double jeopardy by such action [Sec. 1, Rule 122]; b. If the judgment is for conviction and the accused fails to appear during promulgation without justifiable cause, he would lose the remedy to appeal [Sec. 6, Rule 120]

a. Procedure in the lower courts (MeTC/MTC/MCTC and RTC) General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. Exceptions: 1. Where a particular provision applies only to either of said courts; 2. Criminal cases governed by the Revised Rules on Summary Procedure [Sec. 1, Rule 123]

b. Procedure Appeals

in

the

Court

of

(1) PARTIES AND TITLE In all criminal cases appealed to the CA, the party appealing shall be called the “appellant” and the adverse party the “appellee” but the title of the case shall remain as it was in the court of origin (i.e., People v. John Doe) [Sec. 1, Rule 124] (2) BRIEFS Brief for the appellant Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and documentary, is already attached to the record, the appellant

REMEDIAL LAW

shall file seven (7) copies of his brief with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellee [Sec. 3, Rule 124] ↓ Brief for the appellee Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant [Sec. 4, Rule 124] ↓ Reply to appellee’s brief Within twenty (20) days from receipt of the Brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not covered in the brief of the appellant [Sec. 4, Rule 124] With the use of the word “may”, filing a reply is optional. Extension of time for filing briefs General rule: Extension of time for the filing of briefs is not allowed. Exception: Extension may be granted for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended [Sec. 5, Rule 124]. The court may grant as many extensions as may be asked [Gregorio v. CA, G.R. No. L43511 (1976)] (3) DISMISSAL OF APPEAL ABANDONMENT OR FAILURE PROSECUTE; GROUNDS

FOR TO

(a) Appellant fails to file his brief within the prescribed time The CA may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief with the time prescribed,

Page 429 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

REMEDIAL LAW

except where the appellant is represented by a counsel de oficio [Sec. 8, Rule 124]

2. In case of automatic review [People v. Cornelio, G.R. No. L-1289 (1971)]

If failure to file brief on time is the ground, appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed [Baradi v. People, G.R. No. L-2658 (1948)]

(4) PROMPT DISPOSITION OF APPEAL

However, dismissal is proper despite lack of notice: 1. If appellant has filed a MFR or motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason [Baradi v. People, G.R. No. L-2658 (1948)] 2. If the appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment [Salvador v. Reyes, G.R. No. L-2606 (1949)] (b) Appellant escapes, jumps bail, or flees The CA may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal [Sec. 8, Rule 124] Likewise, when accused flees after the case has been submitted for decision, he is deemed to have waived his right to appeal [People v. Ang Gioc, G.R. No. L-48547 (1941)] However, the appeal will not be dismissed despite escape 1. In one exceptional case, the appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured two hours after, the SC ruled that these circumstances were not sufficient to justify dismissal of the appeal which, upon the conclusion arrived at by the Court on the merits, would entail a clear miscarriage of justice [People v. Valencia, G.R. No. L1369 (1949)]

Appeals of accused who are under detention shall be given precedence in their disposition over other appeals. The Court of Appeals shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. The accused need not be present in court during the hearing of the appeal [Sec. 9, Rule 124] (5) REVERSAL OR MODIFICATION OF JUDGMENT ON APPEAL General rule: No judgment shall be reversed or modified. Exception: When the CA, after an examination of the record and of the parties’ evidence, is of the opinion that error was committed and such error injuriously affected the appellant’s substantial rights [Sec. 10, Rule 124] When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings [People v. Cabiling, G.R. No. L38091 (1976)] Ratio: The TC is in a better position to decide the question, having seen and heard the witnesses themselves [People v. Cabiling, G.R. No. L-38091 (1976)] (6) SCOPE OF THE CA’S JUDGMENT The CA may: 1. Reverse/affirm/modify the judgment; 2. Increase/reduce the penalty imposed by the TC; 3. Remand the case to the RTC for new trial or retrial; 4. Dismiss the case [Sec. 11, Rule 124] (7) CA’S POWER TO RECEIVE EVIDENCE

Page 430 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

The CA has power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: 1. Falling within its original jurisdiction; 2. Involving claims for damages arising from provisional remedies; 3. Where the court grants a new trial based only on the ground of newly-discovered evidence [Sec. 12, Rule 124] CA’s trials and hearings must be continuous and completed within three months, unless extended by the Chief Justice. [Sec. 9, BP 129 as amended by RA 7902] (8) POST-CA JUDGMENT Certification or appeal of cases to the SC Whenever the CA finds that the penalty of death, reclusion perpetua, or life imprisonment should be imposed in a case, the court, after discussion of the evidence and the law involved, shall render judgment imposing the penalty of death, reclusion perpetua, or life imprisonment as the circumstances warrant. However, it shall refrain from entering the judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review [Sec. 13, Rule 124] Judgment transmitted and filed in the TC When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken [Sec. 17, Rule 124] Motion for New Trial during the pendency of appeal 1. Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: a. After the appeal from the lower court has been perfected; but b. Before the CA judgment convicting him becomes final;

REMEDIAL LAW

2. The motion shall conform to Sec. 4, Rule 121 [Sec. 14, Rule 124]; 3. If the CA grants a MNT, it may either: a. Conduct the hearing and receive evidence; b. Refer the trial to the court of origin [Sec. 15, Rule 124]

Motion For New Trial RTC [Rule 121] CA [Rule 124] Grounds a. Errors of law or a. Newlyirregularities discovered prejudicial to the evidence substantial rights material to his of the accused defense have been committed during the trial; b. New and material evidence has been discovered When Filed Filed after Filed after appeal judgment, but from lower court is before finality of perfected but before conviction judgment Case remanded? CA can either No. Cannot remand conduct the to lower court in its evidentiary hearing exercise of appellate by itself, or it will jurisdiction remand the case to the court of origin Reconsideration of CA judgment MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party, setting forth the grounds in support thereof. The mittimus shall be stayed during the MFR’s pendency [Sec. 16, Rule 124]

Page 431 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Note: This is not available to the State in case the CA reverses the conviction of the accused since double jeopardy shall have attached. [Villareal v. Aliga, G.R. No. 166995 (2014)] General rule: No party shall be allowed a second MFR of a judgment or final order [Sec. 16, Rule 124; Sec. 11, BP 129] Exception: Where the first MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature Note: Again, this is not available to the State if the first MFR resulted in setting aside of judgment of conviction. [Villareal v. Aliga, G.R. No. 166995 (2014)] Applicable Civil Procedure Rules Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule [Sec. 18, Rule 124]

c. Procedure Court

in

the

Supreme

Uniform procedure General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. Exception: The Constitution or law otherwise provides. [Sec. 1, Rule 125] What the SC may do on review In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found

REMEDIAL LAW

in the judgment appealed from, whether or not they were assigned as errors [People v. Olfindo, G.R. No. L-22679 (1924)] It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed [Macali v. Revilla, G.R. No. L25308 (1926)] It may also assess and award civil indemnity [Quemuel v. CA, G.R. No. L-22794 (1946)] Modes by which a case may reach the SC Automa Ordinary Petition for tic appeal Review on review Certiorari Automati It is available It is available c review when: when is not a a. In cases a. The matter of where the constitution right on CA ality or the part imposes validity of of the reclusion any treaty, accused, perpetua, executive but a life agreement, matter of imprisonme law, law. nt or a ordinance lesser or executive It is penalty, it order or available shall render regulation is when the and enter in question RTC judgment [Sec. decision imposing 5(2)(a), Art. is such VIII, 1987 appeale penalty. Constitution d to CA The ] and the judgment b. When latter is may be validity of of the appealed to law is opinion the SC by questioned that the notice of by an penalty appeal with accused imposed the CA. convicted should [Sec. 13 (c), under it by be Rule 124] the TC, the death. SC cannot

Page 432 of 525

U.P. LAW BOC

CA b. The penalty judgmen of reclusion t is perpetua or imposed death is but no imposed on entry of some of the judgmen defendants t is and a made; lesser instead, penalty on the case the other is cocertified defendants, and the on account entire of their record is varying elevated degree of to the SC participatio for n in the

CRIMINAL PROCEDURE

review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law [Trinidad v. Sweeney, G.R. No.

Effect of erroneous mode of appeal In the case of People v. Resuello [GR No. L30165 (1969)], the contention of the adverse party that the ordinary appeal filed by appellant be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected. The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal. Decision if opinion is equally divided 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 redeliberation, the judgment of conviction of the lower court shall be reversed and the accused acquitted [Sec. 3, Rule 125]

review [Sec. 13(a), Rule 124]

REMEDIAL LAW

commissio 2487 n of the (1904)] offense or c. When the due to the jurisdiction presence of of any modifying inferior circumstan court is in ces, in issue which case d. When only the decision an error or on the nonquestion of life convicts law is is directly involved appealable [Sec. 6(a), to the SC Rule 45] [People v. Carino (2002)]

4. Effect of Appeal by Any of Several Accused General rule: a. An appeal taken by one or more of several accused shall not affect those who did not appeal. b. The appeal of the offended part from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from c. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party [Sec. 11, Rule 122] Effect of appeal by any of several accused 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. [People v. Valdez, G.R. No. 175602 (2013)]

Page 433 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

5. Grounds Appeal

for

Dismissal

of

When appeal by the people will not lie The People/State cannot appeal when it will put the accused in double jeopardy. The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached [Republic v. CA, G.R. No. L- 41115 (1982)] Rationale A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy [Central Bank v. CA, G.R. No. 41859 (1989)] Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy [People v. Sandiganbayan, G.R. No. 174504 (2011), citing People v. Nieto, 103 Phil. 1133] Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable [People v. Duran, G.R. No. L13334 (1960)]

N.

REMEDIAL LAW

A search warrant is not a criminal action nor does it represent a commencement of a criminal prosecution even if it is entitled like a criminal action. It is not a proceeding against a person but is solely for the discovery and to get possession of personal property. [Worldwide Web Corporation v. People, G.R. No. 161106 (2014)] Constitutional safeguard No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized [Sec. 2, Art. III, Constitution] Under the exclusionary rule, any evidence obtained in violation of this is inadmissible for any purpose in any proceeding [Sec. 3, 2nd par., Art. III, Constitution] As a rule, the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause. [Comerciante v. people, G.R. No. 205926 (2015)]

SEARCH AND SEIZURE

1. Nature of Search Warrant Nature It 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 in the warrant and bring it before the court [Sec. 1, Rule 126]

Page 434 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Directed upon acts of the government, not private persons The constitutional protection is directed against the acts of the government and its agents, not private persons [People v. Marti, G.R. No. 81561 (1991)] General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant.

REMEDIAL LAW

Exceptions: a. Search incidental to a lawful arrest; b. Consented search; c. Search of moving vehicle; d. Checkpoints; e. Plain view; f. Stop and frisk; g. Customs search; h. Other exceptions, such as exigent circumstance

2. Distinguish From Warrant of Arrest

Nature and purpose

Determination of Probable cause

Form

When executed

Search warrant Order in writing issued in the name of the People of the Philippines, signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court [Sec. 1, Rule 126]

The judge must personally examine in the form of searching questions and answers, under oath, the complainant and witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted [Sec. 5, Rule 126]

It must particularly describe the place to be searched and the things to be seized [Sec. 2, Art. III, Constitution], which may be anywhere in the Philippines [Sec. 4, Rule 126] The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any Page 435 of 525

Warrant of arrest Order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense Sec. 2, Art. III of the Constitution does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses [People v. Grey,, G.R. No. 180109 (2010), citing Soliven v. Makasiar, G.R. No. L-82585 (1988)] It must particularly describe the person to be arrested [Sec. 2, Art. III, Constitution]

No such limitation under Sec. 2, Art. III, Constitution and Rule 113

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

time of the day or night [Sec. 9, Rule 126] Valid for 10 days from its date [Sec. 10, Rule 126] Validity

The lifetime of the search warrant also ends when a return has already been made [Mustang Lumber v. CA, G.R. No. 104988 (1996)]

3. Application for Search Warrant; Where Filed General rule: It may be filed in any court within whose territorial jurisdiction the crime was committed. Exception: For compelling reasons, which must be stated in the application, it may also be filed: a. If the place of the commission of the crime is known, any court within the judicial region where the crime was committed b. Any court within the judicial region where the warrant shall be enforced However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending [Sec. 2, Rule 126] Under A.M. No. 03-8-02-SC, Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of Manila and Quezon City RTCs shall have authority to act on applications for search warrants involving a. Heinous crimes b. Illegal gambling c. Illegal possession of firearms and ammunitions d. Violations of the Comprehensive Dangerous Drugs Act of 2000 e. Violations of the Intellectual Property Code

Does not expire The 10-day period referred to in Sec. 4, Rule 113 refers to the time within which the head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed.

f.

Violations of the Anti-Money Laundering Act of 2001 g. Violations of the Tariff and Customs Code, and h. Other relevant laws that may hereafter be enacted by Congress and included herein by the Supreme Court. Issuance and form of search warrant If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed the Rules [Sec. 6, Rule 126] Thus, the search warrant must be in writing and contain a. Name of person against whom it is directed b. Offense for which it was issued c. The place to be searched, and d. The description of the specific things to be seized e. A directive to law enforcement officers to search and seize and for them to bring in court the things seized f. Signature of the judge issuing it The absence of such requisites will cause the search warrant’s downright nullification [Santos v. Pryce Gases, Inc., G.R. No. 165122 (2007)]

Page 436 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

4. Probable Cause for Issuance of Search Warrant Probable cause means the existence of such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched [People v. Breis., G.R. No. 205823 (2015)] This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The probable cause must refer only to one specific offense [Roan v. Gonzales, G.R. No. 71410 (1986)] Note: Probable cause to arrest does not necessarily involve a probable cause to search and vice-versa.

5. Personal Examination by Judge of the Applicant and Witnesses The Rules require the judge to comply with a specific procedure in the conduct of the examination of the complainant and the witnesses he may produce a. The examination must be personally conducted by the judge; b. The examination must be in the form of searching questions and answers; c. The complainant and the witnesses shall be examined on those facts personally known to them; d. The statements must be in writing and under oath; and e. The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record. [Sec. 5, Rule 126]

REMEDIAL LAW

Searching questions and answers Searching questions are such questions which have the tendency to show the commission of a crime and the perpetrator thereof [Luna v. Plaza, G.R. No. 27511 (1968)] In search cases, the application must be supported by substantial evidence a. That the items sought are in fact seizable by virtue of being connected with criminal activity; and b. That the items will be found in the place to be searched [People v. Tuan, G.R. No. 176066 (2010)] A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid [Uy v. BIR, G.R. No. 129651 (2000)] Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application [Yao v. People, G.R. No. 168306 (2007)] Examination under oath The judge must examine under oath or affirmation the complainant and the witness he may produce [Sec. 2, Art. III, Constitution] Oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. [Alvarez v. CFI, G.R. No. 45358 (1937)] Mere affidavits of the complainant or his witnesses are not sufficient. The examining judge has to take depositions in writing of the complaint or his witnesses, and attach the same to the record [Prudente v. Judge Dayrit, G.R. No. 82870 (1989)]

Page 437 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

6. Particularity of Place to Be Searched and Things to Be Seized Warrant issued must particularly describe the place to be searched and the things to be seized [Sec. 2, Art. III, Constitution] Particularity of place to be searched Description of the place to be searched is sufficient if the officer with the search warrant can, with reasonable efforts, ascertain and identify the place intended [People v. Veloso, G.R. No. L-23051 (1925)] The search warrant does not require the name of the person who occupies the described premises. The search warrant is issued for the search of specifically described premises only and not for the search of a person [Quelnan v. People, G.R. No. 166061 (2007)]

7. Personal Seized

Property

to

be

What may be seized a. Personal property subject of the offense; b. Personal property stolen/embezzled and other proceeds/fruits of the offense; c. Personal property used or intended to be used as the means of committing an offense [Sec. 3, Rule 126]

REMEDIAL LAW

thing under a warrant describing another" and gives the officer executing the warrant the discretion over which items to take [Worldwide Web Corporation v. People, G.R. No. 161106 (2014)] Where the language used is too all-embracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable [Columbia Pictures v. Flores, G.R. No. 78631 (1993)] Exceptions: Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no search warrant could issue [People v. Rubio, G.R. No. L-35500 (1932)] The general description of the documents listed in the search warrant does not render it void if it is severable, and those items not particularly described may be cut off without destroying the whole [Uy v. BIR, G.R. No. 129651 (2000)] The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control of possession of the property sought to be seized [Burgos v. Chief of Staff, G.R. No. L-64261 (1984)

The scope of the search warrant is limited to personal property. It does not issue for seizure of immovable properties [see Sec. 3, Rule 126] General rule: Things to be seized must be described particularly. General search warrants are not allowed. [Sec. 2, Art. III, Constitution] A general warrant is defined as "a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized." It is one that allows the "seizure of one Page 438 of 525

U.P. LAW BOC

REMEDIAL LAW

CRIMINAL PROCEDURE

8. Exceptions to the Search Warrant Requirement a. b. c. d. e. f. g. h.

Search Incidental to Lawful Arrest Consented Search Search of a Moving Vehicle Checkpoints; Body Checks in Airport Plain View Stop and Frisk Enforcement of Customs Law Other Exceptions 1. Exigent and Emergency Circumstances 2. Buy-Bust Operation 3. Private Searches

Items (1) to (3), (5) to (7) and (8)(a) are enumerated in Veridiano v. People [G.R. No. 200370 (2017)] The other items are sanctioned by the SC in other cases. See the discussion below.

Search Incidental to Lawful Arrest

Requisites Even without a warrant, the person arrested may be searched for: 1. Dangerous weapons 2. Anything which may have been used in the commission of an offense, or 3. Anything which may constitute proof in the commission of the offense [Sec. 13, Rule 126] The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search [Sy v. People, G.R. No. 182178 (2011) citing People v. Racho (erroneously referred to as Rancho), G.R. No. 186529 (2010)] The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are inadmissible as evidence [People v. Aruta, G.R. No. 120195 (1998)] Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal [Lui v. Matillano, G.R. No. 141176 (2004)]

Page 439 of 525

Notes When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction [People v. Calantiao, G.R. No. 203984 (2014), citing Valeroso v. CA, G.R. No. 164815 (2009)]

U.P. LAW BOC

CRIMINAL PROCEDURE

Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that: 1. The right exists; 2. The person involved had knowledge, either actual or constructive, of the existence of such right; and 3. The said person had an actual intention to relinquish the right. [People v. Nuevas, G.R. No. 170233 (2007)] Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given [Valdez v. People, G.R. No. 170180 (2007)]

Search of a Moving Vehicle Consented Search

When a vehicle is stopped and subjected to an extensive search, such a warrantless search should be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either: 1. the motorist is a law-offender; or 2. they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched [Caballes v. CA, G.R. No. 136292 (2002)]

Page 440 of 525

REMEDIAL LAW

Relevant to the determination of consent are the following characteristics of the person giving consent and the environment in which consent is given: 1. The age of the defendant; 2. Whether he was in a public or secluded location; 3. Whether he objected to the search or passively looked on; 4. The education and intelligence of the defendant; 5. The presence of coercive police procedures; 6. The defendant's belief that no incriminating evidence will be found; 7. The nature of the police questioning; 8. The environment in which the questioning took place; and 9. The possibly vulnerable subjective state of the person consenting. [Caballes v. CA, G.R. No. 136292 (2002)] Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought [People v. Tuazon, G.R. No. 175783 (2007)] However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense. to privacy

U.P. LAW BOC

Checkpoints; Body Checks in Airport

CRIMINAL PROCEDURE

Searches conducted in checkpoints are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists. Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense [People v. Vinecario, G.R. No. 141137 (2004)]

Plain View Situation

Stop and Frisk Situation

1. Police must have prior justification to a prior valid intrusion i.e., based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties 2. Evidence was inadvertently discovered by the police who have a right to be where they are 3. Evidence must be immediately and apparently illegal (i.e., drug paraphernalia) 4. Plain view justified mere seizure of evidence without further search [People v. Martinez, G.R. No. 191366 (2010)]

Stop and frisk is a limited protective search of outer clothing for weapons [Malacat v. CA, G.R. No. 123595 (1997)] Where a police officer observes unusual conduct, which leads him reasonably to

Page 441 of 525

REMEDIAL LAW

Routine inspections are not regarded as violative of an individual’s right against unreasonable search 1. Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds 2. Officer simply looks into a vehicle 3. Officer flashes a light therein without opening car’s doors 4. Occupants not subjected to a physical search 5. Inspection is limited to visual search or visual inspection, or 6. Routine check is conducted in a fixed area [Caballes v. CA, G.R. No. 136292 (2002)] Limitations 1. It may not be used to launch unbridled searches and indiscriminate seizures 2. It does not extend to a general exploratory search made solely to find evidence of defendant’s guilt [People v. Musa, G.R. No. 96177 (1993)] Rationale The doctrine is a recognition of the fact that when the police come across immediately recognizable incriminating evidence not named in the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. The doctrine is also a recognition of the fact that it would be needless inconvenience to require the police to obtain another warrant [US v. Gray, 484 F.2d 352 (6th Cir., 1978)] Dual purpose of stop-and-frisk 1. The general interest of effective crime prevention and detection and 2. The more pressing interest of safety and self-preservation

U.P. LAW BOC

CRIMINAL PROCEDURE

conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be armed and presently dangerous, he is entitled to conduct a stop and frisk search.

REMEDIAL LAW

which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat v. CA, G.R. No. 123595 (1997)] Stop and Frisk v. Search Incidental to Lawful Arrest The latter happens when one is caught in flagrante delicto, the former is done in order to prevent a crime from occurring [People v. Cogaed, G.R. No. 200334 (2015)]

Enforcement of Customs Law

For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure [General Travel Services v. David, G.R. No. L19259 (1966)] The Customs Modernization and Tariff Act (CMTA) authorizes customs officers to: 1. Enter, pass through or search any land, enclosure, warehouse [Sec. 219, CMTA] 2. Inspect/search/examine any vessel or aircraft and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law [Sec. 221, CMTA]

Page 442 of 525

General rule: The CMTA does not require a warrant for such searches Exception: In the search of a dwelling house, a search warrant is required [Sec. 220, CMTA] Note: RTCs are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. It is the Collector of Customs, sitting in seizure and forfeiture proceedings, who has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods [Asian Terminals, Inc. v. Bautista-Ricafort, G.R. No. 166901 (2006)]

U.P. LAW BOC

CRIMINAL PROCEDURE

Other exceptions Exigent and emergency circumstances In one case, there was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by an intelligence report that said office was being used as HQ by the RAM. The raiding team had no opportunity to apply for warrant as the court then was closed [People v. de Gracia, G.R. Nos. 102009-10 (1994)]

9. Remedies From Unlawful Search And Seizure Who may avail Only the party whose rights have been impaired thereby; the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties [Stonehill v. Diokno, G.R. No. L-19550 (1967); Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]

a. Employ any means to prevent the search Without a search warrant, the officer cannot insist on entering a citizen’s premises. If he does so, he becomes an ordinary intruder. The person to be searched may resist the search and employ any means necessary to prevent it, without incurring any criminal liability [People v. Chan Fook, G.R. No. L-16968 (1921)]

b. File criminal action against officer A public officer/employee who procures a search warrant without just cause is criminally liable under Art. 129, RPC, on search warrants maliciously obtained and abuse in the service of those legally obtained.

REMEDIAL LAW

c. File a motion to quash the illegal warrant This remedy is employed if search is not yet conducted. Who may file 1. Person who will potentially be injured; 2. Person to be searched; 3. Owner of the property to be searched. Where to file 1. Motions to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. 2. If no criminal action has been instituted, motion may be filed in and resolved by the court that issued the warrant. 3. If such court failed to resolve the motion, and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. [Sec. 14, Rule 126] Grounds A motion to quash a search warrant may be based on grounds extrinsic of the search warrant, such as (1) the place searched or the property seized are not those specified or described in the search warrant; and (2) there is no probable cause for the issuance of the search warrant [Abuan v. People, G.R. No. 168773 (2006)] Failure to file motion to quash Where no MTQ the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. [Malaloan v. CA, G.R. No. 104879 (1994)]

Page 443 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

d. File a motion to return things seized The venue where the motion will be filed follows the same rules as in a motion to quash. An accused may file a motion to suppress evidence if he is not among the persons who can file a motion to quash. General rule: Goods seized by virtue of an illegal warrant must be returned. Exception: The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law [Castro v. Pabalan, G.R. No. L-28642 (1976)]

e. Motion to suppress evidence This refers to a motion to suppress as evidence the objects illegally taken pursuant to the exclusionary rule, which states that any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding CIVIL AND CRIMINAL LIABILITY FROM UNREASONABLE SEARCH AND SEIZURE The following offenses may result from unreasonable search and seizure a. Violation of domicile [Art. 128, RPC] b. Search warrant maliciously obtained [Art. 129, RPC] c. Searching domicile without witnesses [Art. 130, RPC] d. Unjust interlocutory order [Art. 206, RPC] The public officer or employee may be held liable for: a. Entering without authority; against the will; refuses to leave b. A search warrant procured without just cause or if with just cause, exceeds his authority or uses unnecessary severity of force c. Conducting the search without the required witnesses.

REMEDIAL LAW

The judge may be held liable for a. Knowingly rendering an unjust interlocutory order [Art. 206, RPC] b. Inexcusable negligence or ignorance [Art. 205, RPC] It may also result in civil liability for a. Violation of rights and liberties [Art. 32(9), CC] b. Malicious prosecution and acts referred to Art. 32 [Art. 2218, CC] Malice or bad faith is not required. Not only official actions, but all persons who are responsible for the violation are liable for damages [MHP Garments v. CA, G.R. No. 86720 (1994)] Waiver of immunity against unreasonable search and seizure The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly only by the person whose right is being invaded or one who is expressly authorized to do so in his behalf [Pasion v. Locsin, G.R. No. L-45950 (1938)] Requisites a. It must appear that the right exists b. The person involved had knowledge (actual or constructive) of the existence of such right c. The person had an actual intention to relinquish the right [Pasion v. Locsin, G.R. No. L-45950 (1938)]

10.

Cybercrime Warrants

a. Scope and Applicability The rule provides for the procedure in the application and grants of warrants and related orders involving preservation, disclosure, interception, search, seizure, and/or examination of computer data.

Page 444 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

b. General Provisions VENUE FOR FILING A CRIMINAL ACTION

City have the special authority to act on applications and issue warrants which shall be enforceable nationwide and outside the Philippines.

i. Violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other offenses) of RA 10175 (Cybercrime Prevention Act of 2012 hereinafter “RA 10175”) General Rule: The criminal action shall be filed before the designated cybercrime court of the province or city: 1. Where the offense or any of its elements is committed, or 2. Where any part of the computer system used is situated, or 3. Where any of the damage caused to a natural or juridical person took place Note: The court where the criminal action was first filed shall acquire jurisdiction to the exclusion of other courts. ii. All other crimes committed using Information and Communication Technology (ICT) General Rule: The criminal action shall be filed before the regular or specialized courts as the case maybe. VENUE FOR FILING AN APPLICATION FOR CYBERCRIME WARRANT iii. Violation of Section 4 and Section 5 of RA 10175 General Rule: Application shall be filed before the designated cybercrime courts of the province or the city where: 1. Where the offense or any of its elements is committed, or 2. Where any part of the computer system used is situated, or 3. Where any of the damage caused to a natural or juridical person took place Note: Cybercrime courts in Quezon City, City of Manila, Makati City, Pasig City, Cebu City, Iloilo City, Davao City, and Cagayan De Oro

REMEDIAL LAW

iv. Application for a warrant for violation of all crimes defined, and penalized by RPC and other special laws if committed using Information Communication Technology (ICT) shall be filed with the regular courts or other specialized RTC in the places: 1. Where the offense or any of its elements is committed, or 2. Where any part of the computer system used is situated, or 3. Where any of the damage caused to a natural or juridical person took place Effectivity of Warrants General Rule: Not exceeding 10 days from its issuance Exception: The issuing court may, upon motion, extend its effectivity based only on justifiable reasons for a period not exceeding 10 from the expiration of the original period. Contempt The responsible law enforcement authorities shall be subject to action for contempt in case: 1. Failure to timely file the return for any of the issued warrants under this Rule 2. Failure to duly turn-over to the court’s custody any of the items disclosed intercepted, searched, seized, and/or examined

c. Preservation of Computer Data General Rule: Data should be kept, retained, and preserved by a service provider for a minimum period of 6 months from: 1. The date of transaction in the case of traffic data and subscriber’s information; 2. The date of receipt of order from law enforcement requiring its preservation in the case of content data

Page 445 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Exception: 1. A one-time extension for another 6 months may be ordered The data is preserved until the final termination of a case once the data that is preserved, transmitted or stored by the service provider is used as evidence in a case. The receipt by the service provider of transmittal of document to the Office of the Prosecutor shall be deemed a notification to preserve data until the final termination of the case. CYBERCRIME WARRANTS UNDER THIS RULE 1. Warrant to Disclose Computer Data (WDCD) [Sec. 4] 2. Warrant to Intercept Data (WICD) [Sec. 5] 3. Warrant to Search, Seize and Examine Computer Data (WSSECD) [Sec. 6] 4. Warrant to Examine Computer Data (WECD) [Sec 6.9]

REMEDIAL LAW

Contents of Application for WDCD 1. The probable offense involved 2. Relevance and necessity of the computer data or subscriber’s information sought to be disclosed for the purpose of investigation 3. Names of the individuals or entities whose computer data or subscriber’s information are sought to be disclosed, including the names of the individuals of the individuals or entities who have control, possession, or access thereto, if available; 4. Particular description of the computer data or subscriber’s information sought to be disclosed 5. Place where the disclosure of computer data or subscriber’s information is to be enforced, if available; 6. Manner or method by which the disclosure of the computer data or subscriber’s information is to be carried out, if available; and 7. Other relevant information that will persuade the court that there is a probable cause to issue a WDCD.

d. Disclosure of Computer Data Return on the WDCD Warrant to Disclose Computer Data (WDCD) It is an order in writing issued in the name of the People of the Philippines, signed by the judge, upon application of law enforcement authorities, authorizing the latter to issue an order to disclose and accordingly, require any person or service provider to disclose or submit subscriber’s information, traffic data, or relevant data in his/her or its possession or control. Disclosure of Computer Data 1. The person or service provider must disclose or submit the subscriber’s information, traffic data or relevant data in his/her or its possession or control within 72 hours from receipt of an Order; 2. The Order must be in relation to a complaint officially docketed and assigned for investigation; and 3. The disclosure must be necessary and relevant for the purpose of investigation.

Duty of Law Enforcement Officer: Within 48 hours from implementation or after the expiration of the effectivity of the WDCD, whichever comes first, the law enforcement officer shall: 1. Submit a return on the WDCD to the court that issued it; and 2. Simultaneously turn over the custody of the disclosed computer data or subscriber’s information thereto The officer is allowed to retain a copy of the copy of the disclosed data or subscriber’s information subject of the WDCD without the need of court intervention, provided: 1. It will be utilized for case build-up or preliminary investigation purposes 2. The details are kept strictly confidential, and the retained copy shall be labelled as such 3. The retained copy shall be turned over upon filing of a criminal action involving the disclosed computer data or subscriber’s

Page 446 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

information, or upon order of the issuing court if no criminal action is filed. 3. Duty of the Issuing Judge: It is the duty of the issuing judge to: 1. Ascertain if the return has been made, and 2. If no return was made, summon the officer to whom the WDCD was issued, and require him/her to explain why no return was made, without prejudice to any action of contempt

4.

5.

e. Interception of Computer Data Interception refers to [LRMS-DI]: 1. Listening to, 2. Recording, 3. Monitoring, or 4. Surveillance of the content of communications, including procuring of the content data: a. Directly, through access and use of a computer system, or b. Indirectly through the use of electronic eavesdropping or tapping devices, at the same time that the communication if occurring. Warrant Required Interception may be carried out only by virtue of a court issued warrant, duly applied for by law enforcement authorities. Warrant to Intercept Computer Data (WICD) It is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to carry out any or all of the activities of interception (see above). Contents of Application for WICD The application shall state the essential facts similar to WDCD, except that the subject matter is the communication or computer data sought to be intercepted. It should state [O-RNNDPM]: 1. The probable Offense involved 2. Relevance and Necessity of the computer data or subscriber’s information sought to

6.

REMEDIAL LAW

be intercepted for the purpose of investigation Names of the individuals or entities whose computer data or subscriber’s information are intercepted, including the names of the individuals of the individuals or entities who have control, possession, or access thereto, if available; Particular Description of the computer data or subscriber’s information sought to be intercepted; Place where the disclosure of computer data or subscriber’s information is to be enforced, if available; Manner or method by which the disclosure of the computer data or subscriber’s information is to be carried out, if available; and

Return on the WICD Duty of Law Enforcement Officer: Within 48 hours from implementation or after the expiration of the effectivity of the WICD, whichever comes first, the law enforcement officer shall: 1. Submit a return on the WDCD to the court that issued it; and 2. Simultaneously turn over the custody of the disclosed computer data or subscriber’s information thereto Duty of the Issuing Judge: It is the duty of the issuing judge to: 1. Ascertain if the return has been made, and 2. If no return was made, summon the officer to whom the WDCD was issued, and require him/her to explain why no return was made, without prejudice to any action of contempt Notice to Person Intercepted after Filing of Return Required Duty of Law Enforcement The law enforcement officer has the duty to notify the person whose communication or computer data have been intercepted of the activities conducted pursuant to the WICD:

Page 447 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

1. Within 30 days from the filing of the return, attaching a copy of the return to the notice; or 2. From the lapse of 48-hour period to file the return, if no return was filed. The notice shall state the details of the interception activities, including the contents of the intercepted communication or computer data. Remedy of the Person Involved Within 10 days from notice, the person whose communication or computer data have been intercepted may challenge, by motion, the legality of the interception before the issuing court.

f. Search, Seizure, and Examination of Computer Data Warrant to Search, Seize and Examine Computer Data (WSSECD) It is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to search the particular place for items to be seized and/or examined. Content of Application for a WSSECD The content shall state the essential fact similar to WDCD except that the subject matter is the computer data sought to be searched, seized and examined, and all other items related thereto. Further, it shall contain an explanation of the search and seizure strategy to be implemented taking into account the nature of the computer data involved, the computer or computer system’s security features, and/or other relevant circumstances. Off-site and On-site Principle General rule: Law enforcement shall endeavor to first make a forensic image of the computer data on-site as well as limit their search to the place specified in the warrant. Exception: Off-site search may be conducted provided that a forensic image is made, and

REMEDIAL LAW

that the reasons for the off-site search are stated in the initial return Remedy of Person whose devices have been searched and seized off-site The concerned individual may, upon motion, seek the return of the said items from the court issuing the WSSCED provided that a forensic image of the data subject of the WSSECD has already been made. What Activities are Allowed During the Implementation of the WSSECD 1. Interception of communications and computer data may be conducted during the implementation of the WSSECD which shall: a. limited to communications and computer that are reasonably related to the subject matter of WSSECD; and b. the activities are fully disclosed which shall be duly explained in the initial return. 2. Law enforcement may order any person who has knowledge of the functioning of the computer data therein, to provide necessary information to enable the undertaking of the search, seizure and examination Initial Return of WSSECD The authorized law enforcement shall submit within 10 days from issuance of WSSECD an initial return which contains: 1. A list of all items that were seized, with a detailed identification of the devices of the computer system seized; 2. Statement on whether a forensic image of the computer data was made on-site, and if not, the reason for making forensic image off-site; 3. Statement on whether the search was conducted on-site, and not, the reasons for conducting the search and seizure off-site; 4. Statement on whether interception was conducted during the implementation of the WSSECD, together with (a) a detailed identification of all the interception activities that were conducted; (b) the hash value/s of the communications or computer data intercepted; and (c) an explanation of the

Page 448 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

said item’ reasonable relation to the computer data subject of WSSECD; 5. List of all the actions taken to enforce the WSSECD, from the time the law enforcement officers reached the place to be seized until they left the premises with the seized items and reached the place where the items seized were stored and secured for examination; and 6. A reasonable estimation of how long the examination of the items seized will be concluded and the justification therefor. Period to Examine Seized Items After Initial Return The Court shall issue an order fixing the period to conclude the examination of all the items seized. The period may be extended not exceeding 30 days, upon motion, for justifiable reasons.

Final Return on the WSSECD Within 48-hours after the expiration of the period to examine seized items after the initial return, the law enforcement officer shall: 1. Submit a final return in the WSSECD to the issuing court; and 2. Simultaneously turn-over the custody of the seized computer data, as well as all other items seized and/or the communications or computer data intercepted in relation thereto. Warrant to Examine Computer Data (WECD) It refers to a warrant applied for by law enforcement authorities before searching a computer device or computer system (for the purpose of obtaining for forensic examination the computer data) which was obtained via a lawful warrantless arrest or by any other lawful method. It is available when: 1. The law enforcement authority acquires possession of a computer device or computer system; 2. Through a lawful warrantless arrest, or other lawful method; 3. The law enforcement authority shall first apply for WECD before searching for

REMEDIAL LAW

forensic examination the computer data contained therein. Content of WECD It shall state the essential facts similar to WDCD except that the subject matter is the computer sought to be examined. The application shall disclose the circumstances surrounding the lawful acquisition of the computer device or computer system containing the said computer data. Initial and Final Return of WECD The initial and final return of WECD shall be similarly governed by the procedures under WSSECD.

g. Custody of Computer Data Upon filing of the return for WDCD or WICD, or the final return for a WSSECD or WECD with the issuing court, the following are likewise submitted: 1. All computer data shall be simultaneously deposited in a sealed package with the issuing court; 2. A complete and verified inventory of all the other items seized 3. Affidavit of the duly authorized law enforcement. Duty of the Prosecutor When Criminal Action is Instituted Within 10 days from the time of the criminal action is instituted, it is the duty of the prosecutor, or his/her duly authorized representatives, once a criminal action is instituted, to file a motion before the issuing court to: 1. Move for the immediate transmittal of the records, and 2. Move for the transfer of the intercepted, disclosed, searched, seized, and/or examined computer data and items, including the complete and verified inventory thereof to the court Within 5 days, the court shall act upon the motion filed.

Page 449 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

Access and Use of Computer Data General Rule: The package containing the computer data deposited in the issuing court shall not 1. be opened, or 2. the recordings replayed, or 3. its contents revealed, or, 4. in any manner as used as evidence Exception: The court may grant so upon filing a motion for the purpose stating: 1. the relevance of the computer data sought to be opened, replayed, revealed, or used as evidence; and 2. the names of the persons who will be allowed to have access thereto, if the motion is granted. 3. Must include proof of service of copies sent to the person/s whose computer data is subject of the motion. Within 10 days from receipt of notice thereof, the person must file comment thereto. After which, the court shall rule on the motion, unless a clarificatory hearing is needed.

h. Destruction of Computer Data Duty of Service Providers and Law Enforcement Authorities to Destroy The service providers and law enforcement authorities, as the case maybe, shall immediately and completely destroy the computer data subject of preservation and examination upon expiration of the periods provided in Sec. 13 and 15 of RA 10175. 1. Sec 13: Service providers preserve the data for a minimum of 6 months, unless a one-time extension of another 6 months is ordered by the law enforcement authority, or in the event that that the data was used as evidence in which case the data is preserved until the final termination of the case. 2. Sec 15: After lapse of the time period specified in the warrant, unless the court granted extension of time to complete examination for no longer than 30 days (from the time of the court’s approval).

REMEDIAL LAW

How Destruction of Computer Data is Made 1. Made in the presence of the Branch Clerkof-Court, or in his/her absence, in the presence of any other person duly designated by the court to witness the same 2. The accused or the person from whom the items were seized, or his/her representative or counsel, or law enforcement agency may be allowed to witness. Provided, they appear during the scheduled date of destruction upon written notice to them by the Branch Clerk of Court. 3. Within 24 hours from the destruction of data, the Branch Clerk of Court or the witness duly designated by court shall issue a sworn certification as to the fact of destruction 4. The Branch Clerk of Court shall file the said certificate with the same court 5. The storage device or other items turned over to the court’s custody shall be destroyed by: a. Shredding b. Drilling of four holes through the device, c. Prying the platters apart, or d. Other means that will sufficiently make it inoperable.

O. PROVISIONAL REMEDIES IN CRIMINAL CASES 1. Nature Provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action [Sec. 1, Rule 127] If the civil action is suspended on account of filing of the criminal action, the court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not

Page 450 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

go into the merits of the case [Ramcar, Inc v. de Leon, G.R. No. L-1329 (1947)] Provisional remedies are not available when a. Offended party has waived the civil claim b. Offended party has reserved the civil claim c. Offended party has already instituted a separate civil action d. Criminal action carries with it no civil liability. Note: If civil action has been waived, reserved, or instituted separately, the provisional remedy applicable should be applied for in the separate civil action instituted [Riano 571, 2011 Updated Ed.]

2. Kinds of Remedies

Provisional

The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case [Sec. 11(b), Rule 119]

a. Preliminary attachment When proper 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/corporate officer, 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 4. When the accused resides outside the Philippines

REMEDIAL LAW

[Sec. 2, Rule 127] Issuance and implementation The writ may be issued ex parte before acquisition of jurisdiction over the accused [Cuarter v. CA, G.R No. 102448 (1992)) However, it may be implemented only after acquisition of jurisdiction over the person of the accused [Gonzalez v. State Properties, G.R. No. 140765 (2001)] A public prosecutor has the authority to apply for preliminary attachment to protect the interest of the offended party, particularly considering that the corresponding civil liability of the culprits is to be determined therein, no reservation having been made of the right to enforce it in a separate civil action [Santos v. Judge Flores, G.R. No. L-18251 & L-18252 (1962)] No notice to the adverse party or hearing on the application is required before a writ of preliminary attachment may issue as a hearing would defeat the purpose of the provisional remedy. The time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment may issue [Mindanao Savings and Loan Assoc. v. CA, G.R. No. 84481 (1989)]

b. Injunction General rule: Criminal prosecution may not be stayed or restrained by injunction, preliminary or final. Exceptions: 1. To afford adequate protection to the constitutional rights of the accused 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a pre-judicial question which is sub judice 4. When the acts of the officer are without or in excess of authority 5. Where the prosecution is under an invalid law, ordinance or regulation

Page 451 of 525

U.P. LAW BOC

CRIMINAL PROCEDURE

6. When double jeopardy is clearly apparent 7. Where the court has no jurisdiction over the offense 8. Where it is a case of persecution rather than prosecution 9. Where the charges are manifestly false and motivated by the lust for vengeance 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied, and 11. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners [Brocka v. Enrile, G.R. No. 69863 (1990)]

Page 452 of 525

REMEDIAL LAW

U.P. LAW BOC

EVIDENCE

EVIDENCE REMEDIAL LAW

Page 453 of 525

REMEDIAL LAW

U.P. LAW BOC

IV.

REMEDIAL LAW

EVIDENCE

EVIDENCE

A. GENERAL PRINCIPLES 1. Concept of Evidence The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [Sec. 1, Rule 128] “Truth” is not necessarily the actual truth, but one referred to as the judicial or legal truth. [Riano, 2, 2016 Ed.]

2. Scope and Applicability of the Rules of Evidence a. Scope of Application Under the Rules of Court (ROC), the rules of evidence are specifically applicable only to judicial proceedings [Sec. 1, Rule 128] Judicial proceedings are of THREE KINDS ONLY 1. Civil action – which is of two kinds: a. ordinary civil action, and b. special civil action 2. Criminal action 3. Special Proceeding [Sec. 3, Rule 1] Note: All other proceedings are NONJUDICIAL, hence, application of the rules of evidence in the ROC is not mandatory unless provided to be so by law or regulation [see Sec. 4, Rule 1]

If otherwise provided by: 1. Law [e.g. 1987 Constitution, statutes] 2. Rules of Court [Sec. 2, Rule 128]. 3. SC issuances [e.g., Judicial Affidavit Rule, Rules on Procedure for Environmental Cases, Child Witness Rule, Rules on Electronic Evidence, Rules on DNA Evidence] No Vested Right of Property in Rules of Evidence Any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of trial, is receivable [Francisco 8, 1996 Ed., citing Aldeguer v. Hoskyn, G.R. No. 1164 (1903)] Rules of Evidence May be Waived According to Francisco [9, 1996 Ed., citing American cases], there are rules of evidence established merely for the protection of the parties. If, according to the well-established doctrine, the parties may waive such rules during the trial of a case, there is no reason why they cannot make the waiver in a contract (ex. a contract of insurance requiring the testimony of eyewitness as the only evidence admissible concerning the death of the insured person). However, if the rule of evidence waived by the parties has been established on grounds of public policy, the waiver is void (ex. waiver of the privilege against the disclosure of state secrets).

b. Uniformity of Application General rule: The rules of evidence shall be the same in all courts and in all trials and hearings [Sec. 2, Rule 128] Exceptions: Page 454 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

3. Distinguish: Evidence Proof

Proof

vs.

In civil cases: elements of the cause of action

Evidence

Result or effect of evidence [2 Regalado 698, 2008 Ed.]

Mode and manner of proving competent facts in judicial proceedings [Bustos v. Lucero, G.R. No. L-2068, (1948)]

The end result

The means to an end

Note: evidence is a relative term; it signifies a relation between facts: the factum probans and factum probandum [Wigmore, Principles of Judicial Proof, 5, as stated in Riano 11, 2016 Ed.]

4. Distinguish: Factum Probans v. Factum Probandum Factum probans

Factum probandum

Evidentiary fact

Ultimate fact

Fact by which the factum probandum is to be established

Fact sought to be established

Materials evidencing the proposition

Proposition

In criminal cases: elements of the crime [Prof. Avena] [2 Regalado 698-699, 2008 Ed.] One must adduce during trial the factum probans or the evidentiary facts by which the factum probandum or the ultimate fact can be established. [Dela Llana vs. Biong, G.R. No. 182356 (2018)]

5. Admissibility of Evidence Evidence is admissible when it is relevant to the issue and not excluded by the Constitution, the law or these Rules [Sec. 3, Rule 128] Admissibility does not concern weight Admissibility of evidence should not be equated with weight of evidence. The admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade. Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the Rules of Court [Dela Llana v. Biong, G.R. No. 182356 (2013)] Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue [PNOC Shipping and Transport Corporation v. C.A., G.R. No. 107518 (1998)]

Page 455 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Since admissibility of evidence is determined by its relevance and competence, admissibility is, therefore, an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the Court. Thus, while evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception. [People v. Turco, G.R. No. 137757, (2000)] To emphasize, “a preliminary investigation is merely preparatory to a trial; it is not a trial on the merits.” Since “it cannot be expected that upon the filing of the information in court the prosecutor would have already presented all the evidence necessary to secure a conviction of the accused,” the admissibility or inadmissibility of evidence cannot be ruled upon in a preliminary investigation. [Maza v. Judge Turla, G.R. No. 187094 (2017)].

a. Requisites for Exclusions

Admissibility;

Requisites for Admissibility a. Relevant to the issue; and b. Not excluded by the Constitution, the law or the ROC (“competent”) [Sec. 3, Rule 128] Relevant

Competent

When the evidence has such a relation to the fact in issue as to induce belief in its existence or nonexistence [Sec. 4, Rule 128]

Not excluded by the Constitution, the law, or the Rules [Sec. 3, Rule 128]

The Importance of Offer in Relation to Admissibility Parties are required to inform the courts of the purpose of introducing their respective exhibits to assist the latter in ruling on their admissibility in case an objection thereto is made [Star Two v. Ko, G.R. No. 185454 (2011)] The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. [Sec. 34, Rule 132] All evidence must be offered orally. [Sec. 35, Rule 132] # Offer of testimonial evidence—made at the time the witness is called to testify # Offer of documentary and object evidence—made after the presentation of a party’s testimonial evidence Objection Objection to offer of evidence must be made orally immediately after the offer is made # Objection to the testimony of a witness for lack of formal offer must be made as soon as the witness begins to testify # Objection as to a question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor become reasonably apparent # The grounds for objections must be specified [Sec. 36, Rule 132]

Page 456 of 525

U.P. LAW BOC

Exclusionary rules of evidence 1. Constitutional exclusionary rules Consequence Inadmissible for any proceeding

Violation Art III, Sec 2 (unreasonable searches and seizure) Art III, Sec 3 (privacy of communication and correspondence)

Inadmissible against the accused, but may be used by the offended party in a suit for damages against the violator

REMEDIAL LAW

EVIDENCE

Art III, Sec 12 (right to counsel, prohibition on torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition on secret detention places, solitary, incommunicado) Art III, Sec 17 (right against selfincrimination)

It is settled that for an extrajudicial confession to be admissible in evidence against the accused, the same “must be (a) voluntary, (b) made with the assistance of a competent and independent counsel, (c) express, and (d) in writing.” Moreover, Section 2 of Republic Act No. 7438 requires that "any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.”

Statutory exclusionary rules a. Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled [Sec. 201, NIRC]; b. Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any hearing or investigation [Secs. 1 and 4, R.A. 4200 (Wire-Tapping Act)] Note: there must be a law that renders the evidence inadmissible [Ejercito v. Sandiganbayan G.R. Nos. 157294-95 (2006)]. In this case, the SC held that nowhere in R.A. 1405 (Bank Secrecy Law) does it provide that an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence. 3. Exclusions under the Rules on Evidence • Original document rule (previously best evidence rule) • Hearsay evidence rule • Offer of compromise in civil cases 4. Exclusions under Court issuances # Rule on Electronic Evidence, e.g. compliance with authentication requirements for electronic evidence # Rule on Examination of a Child Witness, e.g. sexual abuse shield rule # Judicial Affidavit Rule

Page 457 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

b. Relevance of Evidence and Collateral Matters Relevancy Evidence is relevant when it has “such a relation to the fact in issue as to induce belief in its existence or non-existence” [Sec. 4, Rule 128] (e.g., evidence as to the age of a person who has been raped is relevant in a situation where the age would qualify the offence to statutory rape) Determinable by the rules of logic and human experience [2 Regalado 704, 2008 Ed.] Collateral matters Matters other than the fact in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue [2 Regalado 708, 2008 Ed.]

its failure to satisfy some other rule which would be applicable to it if offered for another purpose does not exclude it. [Francisco 11, 1996 Ed.]

d. Conditional Admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on condition that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out [2 Regalado 705, 2008 Ed.] Example: a copy of a writing may not be considered competent evidence until the original is proven to be lost or destroyed Conditional admissibility requires no bad faith on the part of the proponent.

e. Curative Admissibility

General rule: Evidence on collateral matters is NOT allowed Exceptions: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue [Sec. 4, Rule 128] Note: What the Rules prohibit is evidence of irrelevant collateral facts [2 Regalado 708, 2008 Ed.]

c. Multiple Admissibility Where the evidence is relevant and competent for two or more purposes, such evidence should be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor [2 Regalado 706, 2008 Ed.]

The right of a party to introduce incompetent evidence in his behalf where the court has admitted incompetent evdience adduced by the adverse party Three theories (Wigmore) 1. American Rule – admission of incompetent evidence, without objection by the opponent, does not justify such opponent in rebutting it by similar incompetent evidence 2. English Rule – adverse party may resort to similar inadmissible evidence 3. Massachussetts Rule – adverse party may be permitted to introduce similar incompetent evidence in order to avoid a plain and unfair prejudice caused by the admission of the other party’s evidence

When a fact is offered for one purpose, and is admissible insofar as it satisfies all rules applicable to it when offered for that purpose, Page 458 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Note: none of these rules apply in the Philippines because there is no law or Rule that allows it [Prof. Avena]

f. Direct and Evidence

g. Positive and Negative Evidence Positive evidence

Circumstantial

Direct evidence

Circumstantial evidence

Proves the fact in dispute without the aid of any inference or presumption

Proof of facts from which, taken collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence

Witness affirms that a certain state of facts did exist or that a certain event happened.

Witness states he/she did not see or does not know of the occurrence of a fact

[2 Regalado 703, 2008 Ed.]

h. Competent Evidence Competent Evidence

[Francisco 2, 1996 Ed.] Requisites to warrant a conviction based on circumstantial evidence a. there is more than one circumstance; b. the facts from which the inferences are derived are proven; and c. the combination of all the circumstances is such as to produce conviction beyond reasonable doubt [Sec. 4, Rule 133]

Negative evidence

Not excluded by the Constitution, the law, or the Rules [Sec. 3, Rule 128]

The totality of the evidence must constitute an unbroken chain showing the guilt of the accused beyond reasonable doubt [People v. Matito, G.R. No. 144405 (2004)] Note: Circumstantial evidence is not a weaker form of evidence vis-a-vis direct evidence [People v. Matito, G.R. No. 144405 (2004)]

Page 459 of 525

and

Credible

Credible Evidence

Refers to probative value or convincing weight Weight involves the effect of evidence admitted, its tendency to convince and persuade. It is not determined mathematically by the numerical superiority of the witnesses testifying to a given fact, but depends upon its practical effect in inducing belief on the part of the judge trying the case [Francisco 11, 1996 Ed.]

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

proceedings, depending on the exigencies of the case. [Sec. 1, Rule 131]

Determined by the prevailing exclusionary rules of evidence [2 Regalado 704, 2008 Ed.]

A party will have the burden of evidence only if there is any factum probandum (whether evidentiary or otherwise) that the adverse party has already established (whether by law, rule, or by virtue of evidence that he has presented) that he (the potential proponent) has to overcome. A party will not have any burden of evidence at all if the adverse party has not established any factum probandum in the first place [Prof. Avena]

Note: Exclusionary rules may affect due process. To the extent that they might prejudice substantive rights, therefore, they cannot be made to apply retroactively.

6. Burden of Proof and Burden of Evidence Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts. [Sec. 1, Rule 131] • In civil cases, the burden of proof is on the party who would be defeated if no evidence were given on either side, the plaintiff with respect to his complaint, the defendant with respect to his counterclaim, and the cross-claimant, with respect to his cross-claim. [2 Regalado 816, 2008 Ed.] • In criminal cases, the burden of proof rests on the prosecution [Boac v. People, G.R. No. 180597 (2008)] Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the

The burden of proof is generally determined by the pleadings filed by the party; the burden of evidence is generally determined by the developments at the trial, or by the provisions of the substantive law or procedural rules which may relieve the party from presenting evidence on the fact alleged, i.e., presumptions, judicial notice and admissions [2 Regalado 816-817, 2008 Ed.] In both civil and criminal cases, the burden of evidence lies with the party who asserts an affirmative allegation [2 Regalado 817, 2008 Ed.] Example: In a case for collection of a sum of money, if the defendant asserts that she has paid, then she has the burden of proving that she had, not on the creditor that she had not. While the creditor had needed to prove the existence of a debt, the burden shifts to the debtor because she alleged an affirmative defense, which admits the creditor’s allegation [Vitarich v. Losin, G.R. No. 181560 (2010)] Equipoise Rule or Equipoise Doctrine The doctrine refers to the situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In this case, the decision should be against the party with the burden of

Page 460 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

proof [Rivera v. C.A., G.R. No. 115625 (1998); Marubeni v. Lirag, G.R. No. 130998, (2001)]

essentially an inference

common logic or probability

In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused [Malana v. People, G.R. No. 173612, (2008)]

e.g. Inference of guilt upon discovery of bloodied garment in possession of accused

In the absence of a legal provision or ruling, there is no presumption of law. e.g. Presumption of innocence in favor of the accused, presumption of negligence of a common carrier

7. Presumptions Presumptions are inferences as to the existence of a fact not actually known, arising from its usual connection with another which is known, or a conjecture based on past experience as to what course human affairs ordinarily take. [University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 19496465 (2016)] A presumption can rest only upon ascertained facts. It cannot be based on other presumptions, assumptions, probabilities or inferences [Francisco, 52] Presumptions are not allegations, nor do they supply their absence. Presumptions are conclusions. They do not apply when there are no facts or allegations to support them [University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 194964-65 (2016)] Presumption of fact Praesumptiones hominis [2 Regalado 819, 2008 Ed.] Those which the experience of mankind has shown to be valid, founded on general knowledge and information;

Presumption of law Praesumptiones juris [2 Regalado 819, 2008 Ed.] Those which the law requires to be drawn from the existence of established facts in the absence of contrary evidence; derived from the law itself rather from

Conclusive

Disputable

Inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong [Datalift Movers v. Belgravia Realty, G.R. No. 144268 (2006)]

Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence [Sec. 3, Rule 131]

a. Conclusive Presumptions The technical definition of “conclusive presumption” is implied by way of contradistinction with that for the term “disputable presumption” in Sec. 3 of Rule 131 of the Rules of Court. Thus, a conclusive presumption is a class of evidence which the law does not allow to be contradicted. [2 Regalado 703, 2008 Ed.] Conclusive presumptions in the ROC [Sec. 2, Rule 131]: a. A party is not permitted falsify a thing whenever:

Page 461 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

i.

By his or her own declaration, act or omission; ii. He or she intentionally and deliberately led another to believe a particular thing is true; iii. To act upon such belief; and iv. The litigation arises out of such declaration act or omission b. A tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the relation of landlord and tenant between them These conclusive presumptions are based upon the doctrine of estoppel in pais, see Arts. 1431-1439, Civil Code [2 Regalado 820, 2008 Ed.] Once a contract of lease is shown to exist between the parties, the lessee cannot by any proof, however strong, overturn the conclusive presumption that the lessor has a valid title to or a better right of possession to the subject premises than the lessee [Santos v. National Statistics Office., G.R. No. 171129, (2011)] What a tenant is estopped from denying is the title of his landlord at the time of the commencement of the landlord-tenant relation. If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply. Hence, the tenant may show that the landlord's title has expired or been conveyed to another or himself; and he is not estopped to deny a claim for rent, if he has been ousted or evicted by title paramount [Ermitaño v Paglas, G.R. No. 174436 (2013)] Sources of conclusive presumptions other than the Rules of Court: a. Law i. The decree of registration and the certificate of title issued shall become incontrovertible, upon the expiration of the one-year period within which any

person deprived of land or of any estate or interest therein by such adjudication or confirmation of title obtained by actual fraud, to file in the proper court a petition for reopening and review of the decree of registration [Sec. 32, P.D. 1529] ii. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. [Art. 167, FC]. Factum probans that the child was conceived or born during the marriage of its parents conclusively establishes the factum probandum of the legitimate status of that child, Art. 167 is saying that any factum probans presented and offered to prove the truth of the latter declaration (of the mother) will be inadmissible in evidence. b. SC issuances

b. Disputable Presumptions a. Person is innocent of crime or wrong; b. Unlawful act is done with an unlawful intent; c. Person intends the ordinary consequences of his or her voluntary act; d. Person takes ordinary care of his or her concerns; e. Evidence willfully suppressed would be adverse if produced; f. Money paid by one to another was due to the latter; g. Thing delivered by one to another belonged to the latter; h. Obligation delivered up to the debtor has been paid; i. Prior rents or installments had been paid when a receipt for the later ones is produced;

Page 462 of 525

U.P. LAW BOC

j.

k.

l. m. n.

o.

p. q. r. s. t.

u. v. w.

REMEDIAL LAW

EVIDENCE

A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over are owned by him or her; Person in possession of an order on himself or herself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; Person acting in a public office was regularly appointed or elected to it; Official duty has been regularly performed; A court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; All the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; Private transactions have been fair and regular; Ordinary course of business has been followed; There was a sufficient consideration for a contract; Negotiable instrument was given or indorsed for a sufficient consideration; An indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; A writing is truly dated; Letter duly directed and mailed was received in the regular course of the mail; Presumptions concerning absence: 1. Ordinary but continued absence of: ■ 7 years, it being unknown WON the absentee still lives, he or she is considered dead for all purposes, except for those of succession



10 years – the absentee shall be considered dead for the purpose of opening his succession; but if he disappeared after the age of 75 years, an absence of 5 years shall be sufficient to open his or her succession ■ 4 consecutive years – the spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead; but where there is danger of death, an absence of only 2 years shall be sufficient for remarriage ➢ Note: before marrying again, the present spouse must institute summary proceedings for declaration of presumptive death of spouse 2. Qualified absence – The following shall be considered dead for all purposes including the division of the estate among the heirs ■ A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft ■ A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years ■ A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years a. Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact 1. “Acquiescence” – reluctant acceptance without protest b. Things have happened according to the ordinary course of nature and the ordinary habits of life

Page 463 of 525

U.P. LAW BOC

c. Persons acting as co-partners have entered into a contract of co-partnership; d. A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; e. Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry; f. In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal; g. Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary): When Child was Born

Before 180 days after the solemnization of the subsequent marriage

After 180 days following the celebration of the subsequent marriage

REMEDIAL LAW

EVIDENCE

Presumption

Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

h. A thing once proved to exist continues as long as is usual with things of the nature; i. The law has been obeyed; j. A printed/published book, purporting to be printed/published by public authority, was so printed/published; k. A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; l. A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; m. Presumptions regarding survivorship: (Applicable for all purposes except succession) 1. When 2 persons perish in the same calamity 2. It is not shown who died first; and 3. There are no particular circumstances from which the order of death can be inferred The survivorship is determined from the probabilities resulting from the strength and the age of the sexes: Situation

Person presumed to have survived

Both < 15 y/o

The older

Both > 60 y/o

The younger

One < 15 y/o, the other > 60 y/o

The one < 15

Both > 15 and < 60 y/o, of different sexes

The male

Page 464 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Both > 15 and <60 y/o, of the same sex

The older

One < 15 or > 60 y/o, and the other between those ages

The one between those ages

n. As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. 1. In the absence of proof, they shall be considered to have died at the same time. [Sec. 3, Rule 131] No presumption of legitimacy or illegitimacy There is no presumption of legitimacy or illegitimacy of a child born after 300 days following the dissolution of marriage or the separation of spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his or her allegation [Sec. 4, Rule 131]

When there is gross disregard of the procedural safeguards set forth in Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), serious uncertainty is generated as to the identity of the seized items that the prosecution presented in evidence. Such doubt cannot be remedied by merely invoking the presumption of regularity in the performance of official duties [People v. Lagahit, G.R. No. 200877 (2014)]

c. Presumptions in civil actions and proceedings; against an accused in criminal cases Civil actions and proceedings In all civil actions and proceedings not otherwise provided for by the law or these Rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy shall apply.

The adverse presumption of suppression of evidence is not applicable when: a. The suppression is not willful; b. The evidence suppressed or withheld is merely corroborative or cumulative; c. The evidence is at the disposal of both parties; and d. The suppression is an exercise of a privilege [Tarapen v. People, G.R. No. 173824 (2008)]

If considerations of policy are of equal weight, neither presumption applies. [Sec. 5, Rule 131]

The presumption of regularity in the performance of official duty obtains only when there is no deviation from the regular performance of duty. Where the official act in question is irregular on its face, no presumption of regularity can arise [People v. Casabuena, G.R. No. 186455 (2014)]

8. Construction of the Rules of Evidence

Criminal cases If a presumed fact that established guilt, is an element of the offense charged, or negates a defense, the existence of the basic fact must be proved beyond reasonable doubt and the presumed fact follows from the basic fact beyond reasonable doubt. [Sec. 6, Rule 131]

The Rules of Court, including the Revised Rules on Evidence, shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding [Sec. 6, Rule 1]

Page 465 of 525

U.P. LAW BOC

Rules on Electronic Evidence shall likewise be liberally construed [Sec. 2, Rule 2, Rules on Electronic Evidence]

9. Quantum of Evidence a. Proof Doubt

REMEDIAL LAW

EVIDENCE

Beyond

Reasonable

In a criminal case, the accused is entitled to an acquittal, unless his or her 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 [Sec. 2, Rule 133] The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the accused to prove his/her innocence [Boac v People, G.R. No. 180597, (2008)] The prosecution must not rely on the weakness of the evidence of the defense [Ubales v People, G.R. No. 175692, (2008); People v. Hu, G.R. No. 182232, (2008)]

b. Preponderance of Evidence Applicable quantum of evidence in civil cases [Sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other [Habagat Grill v. DMCUrban Property Developer, Inc., G.R. No. 155110, (2005); Bank of the Philippine Islands v. Reyes, G.R. No. 157177, (2008)] In determining preponderance of evidence, the court may consider: 1. All the facts and circumstances of the case;

2. The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; 3. Number of witnesses (although preponderance is not necessarily with the greater number) [Sec. 1, Rule 133]

c. Substantial Evidence Degree of evidence required in cases filed before administrative or quasi-judicial bodies It is the amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. [Sec. 6, Rule 133] Also applies to petitions under the Rule on the Writ of Amparo [Sec. 17, Rule on the Writ of Amparo] and the Rule on the Writ of Habeas data [Sec. 16, Rule on the Writ of Habeas data] Substantial Evidence Rule Factual findings, especially when affirmed by the Court of Appeals, are accorded not only great respect but also finality, and are deemed binding upon this Court so long as they are supported by substantial evidence [Tan Brothers Corp. v. Escudero, G.R. No. 188711 (2013)]

d. Clear and Convincing Evidence Clear and convincing evidence is more than mere preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases [Manalo v. Roldan-Confesor, G.R. No. 102358 (1992)]

Page 466 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

The standard of proof required in granting or denying bail in extradition cases is “clear and convincing evidence” that the potential extraditee is not a flight risk and will abide with all the orders and process of the extradition court [Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, (2007)] It must be added that the defenses of denial and improper motive can only prosper when substantiated by clear and convincing evidence [People v. Colentava, G.R. No. 190348 (2015)] It is used for overturning disputable presumptions, such as the presumption of regularity in the performance of official duties [Portuguez v. People, G.R. No. 194499, (2015)] or the existence of a valuable consideration [Tolentino v. Sps. Jerera, G.R. No. 179874 (2015)] Note however: The addressee's “direct denial” of receipt of mail alleged to have been mailed to it defeats the presumption in Sec. 3(v), Rule 131 and shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee [Commissioner of Internal Revenue v. Metro Star, G.R. No. 185371 (2010)] It is also the standard of proof for invoking the justifying circumstance of self-defense for the defense and proving the aggravating circumstance of treachery for the prosecution [People v. C.A.sas, G.R. No. 212565 (2015)] The former is because having admitted the killing requires the accused to rely on the strength of his own evidence, not on the weakness of the Prosecution’s, which, even if it were weak, could not be disbelieved in view of his admission [People v. Mediado, G.R. No. 169871 (2011)]

B.

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

1. What Need Not Be Proved a. Facts of Judicial Notice b. Judicial Admissions c. Conclusive Presumptions Note: Evidence is also not required when the issue is purely a question of law. The definition of “evidence” in Sec. 1, Rule 128 refers to “a matter of fact”.

2. Matters of Judicial Notice Judicial Notice Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them. Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. [Republic v. Sandiganbayan, G.R. No. 166859, (2011)] Courts must take judicial notice with caution. Any reasonable doubt on the subject must be resolved in the negative (court will not take judicial notice).

a. When Mandatory 1. Existence and territorial extent of states; 2. Their political history, forms of government, and symbols of nationality; 3. Law of nations; 4. Admiralty and maritime courts of the world and their seals; 5. Political constitution and history of the Philippines; 6. Official acts of the legislative, executive and judicial departments of the National Government of the Philippines; a. Note: the 2019 Amendment added the words “of the National Government of the Philippines” 7. Laws of nature; 8. Measure of time; and

Page 467 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

9. Geographical divisions [Sec. 1, Rule 129] Note: It is grave abuse of discretion if the court does not allow the taking of judicial notice. [Prof. Avena] Since we consider the act of cancellation by President Macapagal-Arroyo of the proposed ZTE- NBN Project during the meeting of October 2, 2007 with the Chinese President in China as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence. [Suplico v. NEDA, G.R. No. 178830 (2008)] The Management Contract entered into by petitioner and the Philippine Ports Authority is clearly not among the matters which the courts can take judicial notice of. It cannot be considered an official act of the executive department. The PPA was only performing a proprietary function when it entered into a Management Contract with the petitioner. [Asian Terminals v. Malayan Insurance, G.R. No. 171406 (2011)] The RTC declared that the discrepancy arose from the fact that Barrio Catmon was previously part of Barrio Tinajeros. The RTC has authority to declare so because this is a matter subject to mandatory judicial notice. Geographical divisions are among matters that courts should take judicial notice of [B.E. San Diego, Inc. v. C.A., G.R. No. 159230 (2010)]

3. It must be known to be within the limits of the jurisdiction of the court The principal guide in determining what facts may be assumed to be judicially-known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially-noticed fact must be one not subject to a reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. [Expertravel & Tours, Inc. v. CA and Korean Airlines, GR No. 152392 (2005)] Things of “common knowledge,” of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. [State Prosecutors v, Muro, A.M. No. RTJ-92876 (1994)] Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. [Ibid] Note: When Hearing Necessary

b. When Discretionary 1. Matters of public knowledge; 2. Matters capable of unquestionable demonstration; and 3. Matters ought to be known to judges because of their judicial functions [Sec. 2, Rule 129] Requisites 1. The matter must be one of common and general knowledge; 2. It must be well and authoritatively settled and not doubtful or uncertain;

During the Pre-Trial and the Trial The court, motu proprio, or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter. [Sec. 3, Rule 129] After the Trial and Before Judgment or on Appeal The court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in the case [Sec. 3, Rule 129]

Page 468 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Note: With Respect to the Court’s Own Acts and Records A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court [Republic v. C.A., G.R. No. 119288 (1997)] With Respect to Records of Other Cases General rule: As a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge. [People v. Hernandez, G.R. No. 108028 (1996)] Exceptions: In the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when: 1. With the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or 2. The original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending [US v Claveria, G.R. No. G.R. No. 9282 (1915)]. Courts may also take judicial notice of proceedings in other causes because of their: 1. Close connection with the matter in controversy. Ex: In a separate civil action against the administrator of an estate arising from an appeal against the report of the committee on claims appointed in the administration proceedings of the said estate, the court took judicial notice of the record of the administration proceedings to

determine whether or not the appeal was taken on time, 2. To determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable in the case under consideration. 3. The other case had been decided by the same court, involving the same subject matter, with the same cause of action, and was between the same parties (which was not denied), and constituted res judicata on the current cause before the court [Tiburcio v. PHHC, G.R. No. L-13479, (1959)] In this case, the requisite of notoriety is belied by the necessity of attaching documentary evidence, i.e., the Joint Affidavit of the stallholders, to prove the alleged practice of paying goodwill money in a particular area [Latip v. Chua, G.R. No. 177809 (2009)] The classification of the land is obviously essential to the valuation of the property. The parties should thus have been given the opportunity to present evidence on the nature of the property before the lower court took judicial notice of the commercial nature of a portion of the subject landholdings [LBP v. Honeycomb Farms, G.R. No. 166259 (2012)] It can be considered of public knowledge and judicially noticed that the scene of the rape is not always nor necessarily isolated or secluded for lust is no respecter of time or place. [People v. Tundag, G.R. Nos. 135695-96. (2000)] Laws of nature involving the physical sciences, specifically biology, include the structural make-up and composition of living things. The Court may take judicial notice that a person’s organs were in their proper anatomical locations [Atienza v. Board of Medicine, G.R. No. 177407 (2011)] The distance between places may be taken as a matter of judicial notice [Maceda v. Vda. De Macatangay, G.R. No. 164947 (2006)] The Court may take judicial notice of the assessed value of property. [Bangko Sentral

Page 469 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

ng Pilipinas v. Legaspi, G.R. No. 205966 (2016)]

3. Judicial Admissions In General To be a judicial admission, the same: a. May be oral or written; b. Must be made by a party to the case; and c. Must be made in the course of the proceedings in the same case. [Sec. 4, Rule 129] Note: The admission, to be judicial, must be made in the course of the proceedings in the same case. Thus, an admission made in another judicial proceeding will not be deemed a judicial admission in the case where the admission is not made. Instead, it will be considered an extrajudicial admission for purposes of the other proceeding where such admission is offered [Riano 87, 2016 Ed.] Judicial admissions may be made in a. the pleadings filed by the parties, b. in the course of the trial, either by verbal or written manifestations or stipulations, or c. in other stages of the judicial proceeding; ex. stipulation of facts in a pre-trial conference [People v. Hernandez, G.R. No. 108028 (1996)], allegations in motions not specifically denied [Republic v. de Guzman, G.R. No. 175021 (2011)], pretrial, depositions, written interrogatories or requests for admission [2 Regalado 836837, 2008 Ed.] Note: a. Admissions made by a party pursuant to a request for admission is for the purpose of the pending action only [Sec. 3, Rule 26] b. In criminal cases, all agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused [Sec. 2, Rule 118] However, in the civil case instituted with the criminal case, such admission will be admissible against any other party.

There are averments made in pleadings which are not deemed admissions even if the adverse party fails to make a specific denial of the same like immaterial allegations [Sec. 11, Rule 8], conclusions, as well as the amount of liquidated damages [Sec. 11, Rule 8] [Riano 89, 2016 Ed.] Note: The theory of adoptive admission has been adopted by the court in this jurisdiction. 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. The basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made. In the Angara Diary, Estrada’s options started to dwindle when the armed forces withdrew its support. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise the petitioner to consider the option of dignified exit or resignation. Estrada did not object to the suggested option but simply said he could never leave the country. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)] Judicial Proceeding [Sec. 3, Rule 1] a. Civil – includes special civil actions b. Criminal c. Special Proceeding Examples of statements made that are not judicial admissions a. Statements made during preliminary investigation b. Statements during Court-Annexed Mediation Note: Execution of judgment is part of a judicial proceeding. The Court retains control over the case until the full satisfaction of the final judgment [People v. Gallo, G.R. No. 124736 (1999)]

Page 470 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

a. Effect of Judicial Admissions The judicial admission does not require proof. [Sec. 4, Rule 129] Sec. 8, Rule 10 (as amended) provides that “[a]n amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be offered in evidence against the pleader.” Thus, admissions in superseded pleadings have to be “[offered] in evidence” precisely because they become extra-judicial in nature the moment the pleading containing them are superseded by virtue of amendment. See Bastida v. Menzi & Co, Inc [G.R. No. L-35840 (1933)], cited in 2 Regalado 837, 2008 Ed. A party who judicially admits a fact cannot later challenge that fact, as judicial admissions are a waiver of proof; production of evidence is dispensed with [Alfelor v. Halasan, G.R. No. 165987 (2006)] Consequently: 1. An admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. 2. The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. 3. A party cannot subsequently take a position contrary of or inconsistent with what was pleaded. [Florete, Sr. v. Florete, Jr., G.R. No. 223321, (2018)]

b. How Judicial Admissions May be Contradicted As an exception to the general rule, judicial admissions may be contradicted only by showing that: 1. It was made through palpable mistake; or 2. The imputed admission was not, in fact, made. [Sec. 4, Rule 129]

This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party [Phil. Health Care Providers v. Estrada, G.R. No. 171052, (2008), citing Atillo, III v. C.A. (1997)] An admission against interest binds the person who makes the same, and absent any showing that this was made through palpable mistake, no amount of rationalization can offset it, especially so in this case where respondents failed to present even one piece of evidence in their defense. [Heirs of Donton v. Stier, G.R. No. 216491 (2017)] Note: Allegations (and admissions) in a pleading, even if not shown to be made through “palpable mistake”, can still be corrected or amended provided that the amendment is sanctioned under Sec. 8, Rule 10 of the Rules of Court. [(Yujuico v. United Resources, G.R. No. 211113 (2015)]

a. Pre-trial Admissions Facts subject of a stipulation or agreement entered into by the parties at the pre-trial of a case constitute judicial admissions by them [Lim v. Jabalde, L-36786 (1989), cited in 2 Regalado 837, 2008 Ed.] When the parties in a case agree on what the foreign law provides, these are admissions of fact which the other parties and the court are made to rely and act upon, hence they are in estoppel to subsequently take a contrary position [PCIB v Escolin G.R. L-27860 and L27896 (1974], cited in 2 Regalado 838, 2008 Ed.] When contradicted: 1. In civil cases: if to prevent manifest injustice [Sec. 7, Rule 18]; 2. In criminal cases: if the pre-trial admission was reduced to writing and signed by the accused and his counsel [Secs. 2 and 4, Rule 118]

Page 471 of 525

U.P. LAW BOC

C.

REMEDIAL LAW

EVIDENCE

OBJECT (REAL) EVIDENCE

1. Nature of object evidence Object Evidence Those addressed to the senses of the court [Sec. 1, Rule 130] A person’s appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court [People v. Rullepa, G.R. No. 131516 (2003)] An ocular inspection of the body of the accused is permissible. [Villaflor v. Summers, G.R., No. 16444 (1920)] The right against self-incrimination cannot be invoked against object evidence. [People v. Malimit, G.R. No. 109775 (1996)] View of an object or scene 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 or view is a part of the trial, inasmuch as evidence is thereby being received, which is expressly authorized by law. [5 Moran 81, 1970 Ed., cited in In re Climaco, A.C. No. 134-J (1974)

2. Requisites for Admissibility Basic requisites for admissibility a. Evidence must be relevant; b. Evidence must be authenticated by a competent witness; c. Object must be formally offered [Sec. 34, Rule 132] [Riano 101, 2016 Ed.] RELEVANT General rule: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court [Sec. 1, Rule 130]

Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if— a. Exhibition is contrary to public policy, morals or decency; b. It would result in delays, inconvenience, unnecessary expenses out of proportion to the evidentiary value of such object; [People v. Tavera, G.R. No. L-23172 (1925)] c. Evidence would be confusing or misleading; d. The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary. COMPETENT AND AUTHENTICATED Evidence must be authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Authentication must be made by a competent witness The witness must have the capacity to identify the object as the very thing involved in the litigation. A witness can testify only to those facts which he/she knows of his/her personal knowledge; that is, which are derived from his/her own perception [Sec. 22, Rule 130] Note: Requisites for the admissibility of tape recording a. A showing that the recording was capable of taking testimony b. A showing that the operator of the recording device is competent c. Establishment of the authenticity and correctness of recording d. A showing that no changes, deletions, or additions have been made on the recordings e. A showing of the manner of preservation of the recording f. Identification of speakers

Page 472 of 525

U.P. LAW BOC

g. A showing that the testimony elicited was voluntarily made without any kind of inducement [Torralba v. People, G.R. No. 153699 (2005)]

3. Categories Evidence

of

Object

Two classifications: a. Actual physical or “autopic” evidence – those which have a direct relation or part in the fact or incident sought to be proven and those brought to the court for personal examination by the presiding magistrate; Objects that have readily identifiable marks; or Unique objects

REMEDIAL LAW

EVIDENCE

E.g., gun with a serial number

Exhibit Car with a identifiable dent on its left visual or bumper physical peculiarities Objects with no unique E.g.,sachet of characteristic shabu with Objects but are made initials of the made readily police officer unique identifiable by who retrieved law enforcers it upon retrieval or confiscation Objects with no Nonidentifying E.g., narcotic unique marks and substances, objects cannot be bodily fluids marked [People v. Olarte, G.R. No. 233209 (2019)] b. Demonstrative Evidence Those which represent the actual or physical object (or event in case of pictures or videos) being offered to support or draw an inference or to aid in comprehending the verbal testimony of a witness. [People v. Olarte, G.R. No. 233209 (2019)]

Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: 1. shown, presented or displayed to the court, and 2. identified, explained or authenticated i. by the person who made the recording, or ii. by some other person competent to testify on the accuracy thereof. [Sec. 1, Rule 11, Rules on Electronic Evidence] Note: reenactments are object evidence because they are exhibited, examined and viewed by the court. E.g. a person who hears a man cat-call a woman, and mimics the cat-call in court is reenacting the event. He is not testifying because he was not declaring anything nor making a statement. [Prof. Avena]

4. Chain Of Custody In Relation To Sec 21 Of The Comprehensive Dangerous Drugs Act Of 2002 “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. [Sec. 1(b), Dangerous Drugs Board Resolution No. 1 (2002)] As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the

Page 473 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. [Mallillin v. People, 576 Phil. 576 (2008)] As a general rule, four links in the chain of custody of the confiscated item must be established: a. first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; b. second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; c. third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and d. fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. [People v. Gayoso, G.R. No. 206590 (2017)] Note: If the proffered evidence is unique, readily identifiable, and relatively resistant to change, that foundation need only consist of testimony by a witness with knowledge that the evidence is what the proponent claims; otherwise, the chain of custody rule has to be resorted to and complied with by the proponent to satisfy the evidentiary requirement of relevancy. And at all times, the source of amorphous as well as firmly structured objects being offered as evidence must be tethered to and supported by a testimony. In the case at hand, the chain of custody rule does not apply to an undetonated grenade (an object made unique), for it is not amorphous and its form is relatively resistant to change. A witness of the prosecution need only identify the hand grenade, a structured object, based on personal knowledge that the same contraband or article is what it purports to be — that it came from the person of accused-

appellant. [People v. Olarte, G.R. No. 233209 (2019)]

5. DNA Evidence When a crime is committed, material is collected from the scene of the crime or from the victim’s body for the suspect’s DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim. The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample. The samples collected are subjected to various chemical processes to establish their profile. The test may yield three possible results: a. Exclusion – The samples are different and therefore must have originated from different sources. This conclusion is absolute and requires no further analysis or discussion; b. Inconclusive – It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types. This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or c. Inclusion – The samples are similar, and could have originated from the same source. In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the similarity [People v. Vallejo, G.R. No. 144656 (2002)]. Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. [Herrera v. Alba, G.R. No. 148220 (2005)]

Page 474 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

a. Meaning of DNA “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins. “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. “DNA testing” means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis). [Sec. 3, AM No. 06-11-5-SC or Rule on DNA Evidence]

b. Application for DNA testing order The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: 1. A biological sample exists that is relevant to the case; 2. The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; 3. The DNA testing uses a scientifically valid technique;

4. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and 5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. Exception: DNA testing may be done without a prior court order, at the behest of any party (including law enforcement agencies), before a suit or proceeding is commenced [Sec. 4, Rule on DNA Evidence] Note: The death of the petitioner (putative father) does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. The term “biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones. [Ong v. Diaz, G.R. No. 1717113 (2007)]

c. Post-conviction DNA testing; remedy Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that: 1. a biological sample exists; 2. such sample is relevant to the case; and 3. the testing would probably result in the reversal or modification of the judgment of conviction. [Sec. 6, Rule on DNA Evidence] The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela's rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. xxx If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. [Lejano v. People, G.R. No. 176864 (2010)].

Page 475 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Remedy if the results are favorable to the convict The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the postconviction DNA testing are favorable to the convict. In case the court, after due hearing finds the petition to be meritorious, if shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. [Sec. 10, Rule on DNA Evidence]

d. Assessment of probative value of DNA evidence and admissibility In assessing the probative value of the DNA evidence presented, the court shall consider the following: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; 3. The forensic DNA laboratory, including accreditation by any reputable standardssetting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and 4. The reliability of the testing result, as provided in Sec. 8 [Sec. 7, Rule on DNA Evidence]

Note: The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. [Sec. 7, Rule on DNA Evidence]

e. Rules on evaluation of reliability of the DNA testing methodology In evaluating the results of DNA testing, the court shall consider the following: 1. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; 2. The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that 3. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity. [Sec. 9, Rule on DNA Evidence] It is not enough to state that the child’s DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction, trial courts should require at least 99.9% as a minimum value of the Probability of Paternity (“W”) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. [Herrera v. Alba, G.R. No. 148220 (2005)]

Page 476 of 525

U.P. LAW BOC

D.

b. When Not Applicable

DOCUMENTARY EVIDENCE

1. Meaning Evidence

REMEDIAL LAW

EVIDENCE

of

Documentary

Consist of writings, recordings, photographs, or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expressions offered as proof of their contents. [Sec. 2, Rule 130] If offered for some other purpose, they constitute object evidence. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos. [Sec. 2, Rule 130] Note: 2019 Amendments expanded definition of documentary evidence.

the

2. Requisites for Admissibility a. The document must be relevant; b. The evidence must be authenticated; c. The document must be authenticated by a competent witness; d. The document must be formally offered in evidence [Riano 132, 2016 Ed.]

Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule (now original document rule) does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need for accounting for the original. [Republic v. Gimenez, G.R. No. 174673 (2016)] Affidavits and depositions are considered as not being the best evidence, hence not admissible if the affiants or deponents are available as witnesses [2 Regalado 721, 2008 Ed., citing 4 Martin 82] The best evidence rule (now original document rule) does not apply to all types of evidence. It does not comprehend object and testimonial evidence. [Riano, 133, 2016 Ed.]

c. Meaning of Original Document and Duplicate Original—the document itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom.

3. Original Document Rule a. Meaning of the Rule When the subject of inquiry is the contents of a document, writing, recording, photograph, or other record, no evidence is admissible other than the original document itself [Sec. 3, Rule 130] Note: Original document rule is a rule on admissibility (competence). This rule replaced the Best Evidence Rule.

If data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an “original”. [Sec. 4, Rule 130] Duplicate—counterpart produced by: a. the same impression as the original, or from the same matrix; b. means of photography, including enlargements and miniatures; c. mechanical or electronic recording;

Page 477 of 525

U.P. LAW BOC

d. chemical reproduction; or e. other equivalent techniques accurately reproduce the original. [Sec. 2, Rule 130]

REMEDIAL LAW

EVIDENCE

which

General Rule: A duplicate is admissible to the same extent as an original. Exceptions: 1. a general question is raised as to the authenticity of the original; or 2. in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. [Sec. 4, Rule 130] Note: 2019 Amendments made substantial changes to Sec. 4, Rule 130 Carbon copies are deemed duplicate (originals). [People v Tan, G.R. No. L-14257 (1959); Skunac v. Sylianteng, G.R. No. 205879 (2014)]

d. Secondary Evidence; Summaries The following are the exceptions to the original document rule: 1. When the original is unavailable a. When the original has been lost or destroyed, or cannot be produced in court; b. Upon proof of its execution or existence and the cause of its unavailability; and c. Without bad faith on the offeror’s part What to present to prove contents (in this order) a. A copy; b. A recital of its contents in some authentic document; or c. The testimony of witnesses [Rule 130, Sec. 5]

In order that secondary evidence may be admissible, there must be proof by satisfactory evidence of: 1. due execution of the original; 2. loss, destruction, or unavailability of all such originals; and 3. reasonable diligence and good faith in the search for or attempt to produce the original. [Republic v. Marcos-Manotoc, G.R. 171701 (2012)] The correct order of proof is existence, execution, loss, and contents. [Republic v. Cuenca, G.R. No. 198393 (2018)] Due execution of the document should be proved through the testimony of either: a. the person or persons who executed it; b. the person before whom its execution was acknowledged; or c. any person who was present and saw it executed and delivered, or who, after its execution and delivery, saw it and recognized the signatures, or by a person to whom the parties to the instruments had previously confessed the execution thereof [Director of Lands v. C.A., G.R. No. L-29575 (1971)) When more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals. [Citibank v. Teodoro, G.R. No. 150905 (2003)]. The general rule concerning proof of a lost instrument is, that reasonable search shall be made for it in the place where it was last known to have been, and, if such search does not discover it, then inquiry should be made of persons most likely to have its custody, or who have some reasons to know of its whereabouts. [Tan v. CA, G.R. No. L-56866 (1985)]

Page 478 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

2. When the original is in the custody or control of the adverse party OR original cannot be obtained by local judicial processes or procedures What to present to prove contents Same as when lost, destroyed, or cannot be produced in court [Sec. 6, Rule 130] 3. When the contents of documents, records, photographs, or numerous accounts are voluminous and 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 (“Summaries”) What to present to prove contents Chart, summary, or calculation of the contents of such evidence The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time and place. The court may order that they be produced in court. [Sec. 7, Rule 130] 4. When the original is a public record in the custody of a public officer or is recorded in a public office What to present to prove contents Certified copy issued by the public officer in custody thereof [Sec. 8, Rule 130] 5. When original is outside the jurisdiction of the court When the original is outside the jurisdiction of the court, secondary evidence is admissible. [Regalado 784, 2008 Ed., citing PNB v. Olila, G.R. No. L-8189 (1956), unreported]

4. Electronic Evidence Scope General Rule: The Rules on Electronic Evidence (A.M. No. 01-7-01-SC) shall apply whenever an electronic document or electronic data message is offered or used in evidence Exception: when otherwise provided [Sec. 1, Rule 1, Rules on Electronic Evidence] Cases covered The Rules apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. [Sec. 2, Rule 1, Rules on Electronic Evidence] However, according to People v. Enojas [G.R. No. 182835 (2010)], the Rules may also apply to criminal cases.

a. Meaning of electronic evidence; electronic data message Electronic evidence—evidence, the use of which is sanctioned by existing rules of evidence, in ascertaining in a judicial proceeding, the truth respecting a matter of fact, which evidence is received, recorded, transmitted, stored, processed, retrieved or produced electronically [Sec. 3(u), Rule 1, IRR of Cybercrime Prevention Act of 2012] Electronic data message—information generated, sent, received or stored by electronic, optical or similar means [Sec. 1(g), Rule 2, Rules on Electronic Evidence] 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. It includes digitally signed documents and any print- out or output,

Page 479 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

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". [Sec. 1(h), Rule 2, Rules on Electronic Evidence]

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. [Sec. 1(k), Rule 2, Rules on Electronic Evidence]

Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. [Sec. 1, Rule 3, Rules on Electronic Evidence]

b. Probative value of electronic documents or evidentiary weight; method of proof

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. [Sec. 1(j), Rule 2, Rules on Electronic Evidence] 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: a. whether the transformation was created using the private key that corresponds to the signer's public key; and b. whether the initial electronic document had been altered after the transformation was made. [Sec. 1(h), Rule 2, Rules on Electronic Evidence]

Factors that may be considered in assessing evidentiary weight: 1. The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; 2. The reliability of the manner in which its originator was identified; 3. The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; 4. The familiarity of the witness or the person who made the entry with the communication and information system; 5. The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or 6. Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message [Rule 1, Sec 7, Rules on Electronic Evidence]

Page 480 of 525

U.P. LAW BOC

Method of proof All matters relating to the admissibility and evidentiary weight may be established by an affidavit: 1. stating facts of direct personal knowledge of the affiant or facts based on authentic records; and 2. affirmatively showing the competence of the affiant to testify on the matters contained therein [Sec. 1, Rule 9, REE] The affiant shall be made to affirm the contents of the affidavit in open court and may be crossexamined as a matter of right [Sec. 2, Rule 9, REE].

c. Authentication of documents and signatures

REMEDIAL LAW

EVIDENCE

electronic electronic

Burden of proof 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. [Sec. 1, Rule 5, REE] Manner of authentication of private electronic document offered as authentic a. by evidence that it had been digitally signed by the person purported to have signed the same; b. by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or c. by other evidence showing its integrity and reliability to the satisfaction of the judge. [Sec. 2, Rule 5, REE] 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. [Sec. 3, Rule 5, REE] Manner of authentication of electronic signature a. By evidence that a method or process was utilized to establish a digital signature and verify the same; b. By any other means provided by law; or c. By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. [Sec. 2, Rule 6, REE]

d. Electronic documents hearsay rule

and

General Rule: Hearsay rule does not apply to: 1. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses 2. made by electronic, optical or other similar means 3. at or near the time of or from transmission or supply of information 4. by a person with knowledge thereof 5. kept in the regular course or conduct of a business activity and 6. such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means and 7. shown by the testimony of the custodian or other qualified witnesses [Sec. 1, Rule 8, REE] Exception: The presumption 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. [Sec. 2, Rule 8, REE]

e. Audio, photographic, video and ephemeral evidence Audio, photographic and video evidence of events, acts or transactions

Page 481 of 525

U.P. LAW BOC

1. Must be shown, presented or displayed to the court; and 2. Shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, REE] Ephemeral electronic communications 1. Proven by the testimony of: a. a person who was a party to the same; or b. has personal knowledge thereof 2. In the absence or unavailability of such witnesses, other competent evidence may be admitted Recording of the telephone conversation or ephemeral electronic communication Same as audio, photo and video evidence If recorded or embodied in an electronic document, provisions of Rule 5 (Authentication of electronic documents) shall apply. [Sec. 2, Rule 11, REE]

5. Parol Evidence Rule Parol evidence Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document [2 Regalado 730, 2008 Ed.].

a. Application of Evidence Rule

REMEDIAL LAW

EVIDENCE

the

Parol

General Rule When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement [Sec. 10, Rule 130]

The parol evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties' written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. [Felix Plazo Urban Poor Settlers v. Lipat, G.R. No. 182409 (2017)] Where not applicable It does not apply when third parties are involved or those not privy to the written instrument in question and does not base a claim or assent a right originating in the instrument [Lechugas v. C.A., G.R. No. L39972 & L-40300 (1986)]

b. When Parol Evidence Can Be Introduced How Parol Evidence Can Be Introduced General rule: Ground/s for presenting parol evidence is put in issue in a verified pleading [Sec. 10, Rule 130] Exception: If the facts in the pleadings all lead to the fact that it is being put in issue then the Parol Evidence exception may apply [Sps. Paras v. Kimwa Corporation, G. R. No. 171601 (2015)] In sum, two (2) things must be established for parol evidence to be admitted: 1. That the existence of any of the four (4) exceptions has been put in issue in a party's pleading or has not been objected to by the adverse party; and 2. That the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party. [Sps. Paras v. Kimwa Corporation, G. R. No. 171601 (2015)]

Page 482 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

When Can Parole Evidence Can Be Introduced 1. 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 thereto 3. Validity of the written agreement 4. Existence of other terms agreed to by the parties or their successors-in-interest after the execution of the written agreement. 1. INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT Intrinsic ambiguity (latent)– writing admits of two constructions, both of which are in harmony with the language used [Ignacio v. Rementeria, 99 Phil. 1054 (Unrep.)] The document is clear on its face, but matters outside the agreement create the ambiguity (Ex. “I bequeath this land to my cousin George.” However, the testator has two cousins named George) [Riano, 161, 2016 Ed.] Note: American jurisprudence also refers to a situation where an ambiguity partakes of the nature of both patent and latent ambiguity, that is, an intermediate ambiguity, because the words of the writing, though seemingly clear and with a settled meaning, is actually equivocal and admits of two interpretations. Parol evidence, in such a case is admissible to clarify the ambiguity [2 Regalado 734, 2008 Ed., citing 20 Am. Jur 1011] (Ex. “dollar” may mean USD, CAD, HKD, etc.) Mistake refers to mistake of fact which is mutual to the parties [BPI v. Fidelity and Surety, Co., G.R. No. L-26743 (1927)] Imperfection includes an inaccurate statement in the agreement or incompleteness in the writing, or the presence of inconsistent provisions [2 Regalado 732, 2008 Ed.]

2. FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE TRUE INTENT AND AGREEMENT OF THE PARTIES THERETO Purpose To enable court to ascertain the true intention of the parties [Tolentino v. Gonzales Sy Chiam, G.R. No. 26085 (1927)] 3. VALIDITY OF THE WRITTEN AGREEMENT Parol evidence may be admitted to show: 1. True consideration of a contract 2. Want/Illegality of consideration 3. Incapacity of parties 4. Fictitious/absolutely simulated contract 5. Fraud in inducement [2 Regalado 733, 2008 Ed.]

c. Distinction Between the Original Document Rule and Parol Evidence Rule Original Document Rule

Parol Evidence Rule

Contemplates the Presupposes that the situation wherein the original document is original writing is not available in court available and/or there is a dispute as to whether said writing is the original Prohibits the Prohibits the varying introduction of of the terms of a substitutionary written agreement evidence in lieu of the original document regardless of WON it varies the contents of the original

Page 483 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Applies to all kinds of writings, recordings, photographs, or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents

Applies only to documents contractual in nature and to wills

Can be invoked by any party to an action regardless of WON such party participated in the writing involved

Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby

[2 Regalado 731, 2008 Ed.]

6. Authentication and Proof of Documents a. Meaning of Authentication Proving that the objects and documents presented in evidence are genuine and what it purports to be.

in force between the Philippines and the country of source Note: This is a new addition to the original provision. 4. Public records, kept in the Philippines, of private documents required by law to be entered therein [Sec. 19, Rule 132] A public document enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution. To overcome this presumption, there must be clear and convincing evidence [Chua v. Westmont Bank, G.R. No. 182650 (2012)]. A public document is self-authenticating and requires no further authentication in order to be presented as evidence in court [Patula v. People, G.R. No. 164457 (2012)] Private Documents All other writings are private. [Sec. 20, Rule 130] A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth [Patula v. People, G.R. No. 164457 (2012)]

c. When a Private Writing Requires Authentication; Proof of Private Writing

b. Classes of Documents Public Documents 1. 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 2. Notarial documents (except last wills and testaments) 3. Documents considered public documents under treaties and conventions which are

General rule: Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved [Sec. 20, Rule 132] How to Prove Due Execution and Authenticity 1. By anyone who saw the document executed or written;

Page 484 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

2. By evidence of the genuineness of the signature or handwriting of the maker; or 3. By other evidence showing its due execution and authenticity. [Sec. 20, Rule 132] Before a private document is admitted in evidence, it must be authenticated either by: 1. the person who executed it, 2. the person before whom its execution was acknowledged, 3. any person who was present and saw it executed, or 4. who after its execution, saw it and recognized the signatures, or 5. the person to whom the parties to the instruments had previously confessed execution thereof [Malayan Insurance v. Phil. Nails and Wires Corp., G.R. No. 138084 (2002)] If a private writing itself is inserted officially into a public record, its record, its recordation, or its incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible without authentication [Republic v Sandiganbayan, G.R. No. 188881 (2014)]

d. When Evidence of Authenticity of a Private Writing is Not Required The requirement of authentication of a private document is excused only in four instances, specifically: 1. when the document is an ancient one which is: a. More than 30 years old; b. Produced from a custody in which it would naturally be found if genuine; and c. Unblemished by any alterations or circumstances of suspicion [Sec. 21, Rule 132]

2. when the genuineness and authenticity of the actionable document have not been specifically denied under oath by the adverse party; 3. when the genuineness and authenticity of the document have been admitted; or 4. when the document is not being offered as genuine.

e. Genuineness of a Handwriting 1. By any witness who believes it to be the handwriting of such person because: a. He/she has seen the person write; or b. He/she has seen writing purporting to be his/hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Sec. 22, Rule 132] 2. A comparison by the witness or the court of the questioned handwriting, and admitted genuine specimens thereof or proved to be genuine to the satisfaction of the judge [Sec. 22, Rule 132] 3. Expert evidence [Sec. 52, Rule 130]

f. Public Documents as Evidence; Proof of Official Records Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter [Sec. 23, Rule 132] Proof of official record referred to in Sec. 19(a), Rule 132 1. By an official publication thereof; or 2. By a copy of the document attested by the officer having legal custody of the record, or his/her deputy a. If record is not kept in the Philippines: accompany with a certificate that such officer has the custody

Page 485 of 525

U.P. LAW BOC

i.

ii.

If the foreign country is a contracting party to a treaty or convention to which the Philippines is also a party, or it is considered a public document under the treaty or convention: certificate or its equivalent shall be in the form prescribed therein, subject to reciprocity If not a contracting party: certificate made by a 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 country where the record is kept 1. Must be authenticated by the seal of his/her office

The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement or has exempted the document itself [Sec 24, Rule. 132] Note: Substantial amendment to Sec 24, Rule 132

g. Attestation of a Copy of a Document or Record 1. Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be 2. Must be under the official seal of the attesting officer, if there be any, or if he/she be the clerk of a court having a seal, under the seal of such court [Sec. 25, Rule 132]

h. Public Record Documents 1. By the original record; or

REMEDIAL LAW

EVIDENCE

of

Private

2. By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody [Sec. 27, Rule 132] See Sec. 25, Rule 132

i. Proof of Lack of Record 1. Written statement a. Signed by an officer having the custody of an official record or by his/her deputy b. Must state that after diligent search, no record or entry of a specified tenor is found to exist in the records of his/her office 2. Certificate a. Accompanying the written statement b. Must state that that such officer has the custody [Sec. 28, Rule 132]

j. How a Judicial Impeached

Record

is

Establish: 1. Want of jurisdiction in the court or judicial officer; 2. Collusion between the parties; or 3. Fraud in the party offering the record, with respect to the proceedings [Sec. 29, Rule 132]

k. Proof of Notarial Documents Notarial Documents Every instrument duly acknowledged or proved and certified as provided by law which may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved [Sec. 30, Rule 132] Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution [Sec. 23, Rule 132]

Page 486 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

E.

Note: Last wills and testaments are not public documents [Sec. 19, Rule 132]

l. Alterations in a Document

TESTIMONIAL EVIDENCE

1. Qualifications of a Witness

When Applicable and Whose Burden of Proof The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. If he or she fails to do that, the document shall not be admissible in evidence [Sec. 31, Rule 132] How to Account for Alteration Party producing a document as genuine may show that the alteration 1. Was made by another, without his/her concurrence; 2. Was made with the consent of the parties affected by it; 3. Was otherwise properly or innocently made; or 4. Did not change the meaning or language of the instrument. [Sec. 31, Rule 132]

m. Documentary Evidence in an Unofficial Language Not admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial [Sec. 33, Rule 132] Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence. [Heirs of Doronio v. Heirs of Doronio, G.R. No. 169454 (2007)]

Witness A witness is one who, being present, personally sees or perceives a thing, a beholder, spectator or eyewitness. One who testifies to what he has seen or heard, or otherwise observed [Herrera citing Black’s Law Dictionary] Qualifications of a Witness All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification [Sec. 21, Rule 130] Basic Qualifications of a Witness a. He/she can perceive i. Corollary to perception is that the witness must have personal knowledge of the facts surrounding the subject matter of his testimony [Sec. 22, Rule 130] b. He/she can make known his perception i. This means that he/she must have the ability to remember and communicate the remembered perception c. He/she must take an oath or affirmation [Sec. 1, Rule 132] d. He/she must not possess any of the disqualifications A deaf-mute is competent to be a witness so long as he/she has the faculty to make observations and he/she can make those observations known to others [People v. Aleman y Longhas, G.R. No. 181539 (2013)] Parties declared in default are not disqualified from taking the witness stand for nondisqualified parties. The law does not provide

Page 487 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

default as an exception [Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)] There is no substantive or procedural rule which requires a witness for a party to present some form of authorization to testify as a witness for the party presenting him or her [AFP Retirement and Separation Benefits System v. Republic, G.R. No. 188956 (2013)] When determined Qualification of a witness is determined at the time the said witness is produced for examination or at the taking of their depositions. With respect to children of tender years, competence at the time of the occurrence is also taken into account. In case person is convicted of a crime General rule: Not disqualified The fact that a witness has been convicted of felony is a circumstance to be taken into consideration as affecting his character and credibility [Enrile, et al. v. Roberto, et al. G.R. No. L-42309 (1935)] Exception: Otherwise provided by law, e.g. under Art. 821 of the Civil Code, a person convicted of any of the following crimes cannot be a witness to a will: a. Falsification of documents, b. Perjury; or c. False testimony Competency of a Witness One is qualified to take the witness stand if: a. He is capable of perceiving at the time of the occurrence of the fact; and b. He came make his perception known [Sec. 20, Rule 130] Competency has reference to the basic qualifications and the absence of disqualifications of a witness to testify. [Riano, 185, 2016 Ed.] Competency Presumed A person who takes the witness stand is presumed to possess the qualifications of a

witness. His competence may be questioned by the other party by interposing an objection. [Herrera] Remedy for Errors or Questions on Competence Appeal, not certiorari, is the proper remedy for the correction of any error as to the competency of a witness committed by an inferior court in the course of the trial [Icutanim v. Hernandez, G.R. No. L-1709, June 8, 1948] Credibility of a Witness Credibility has nothing to do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. [Riano, 185, 2016 Ed.] Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court as it is in the best position to observe his demeanor and bodily movements. [Llanto v. Alzona, 450 SCRA 288 (2005)]

2. Disqualifications of Witnesses EFFECT OF INTEREST IN THE SUBJECT MATTER A person is not disqualified by reason of his interest in the subject matter. Interest only competency.

affects

credibility,

not

EFFECT OF RELATIONSHIP General rule: Mere relationship does not impair credibility [People v. De Guzman, G.R. 130809 (2000)] Exception: To warrant rejection, it must be clearly shown that: a. Testimony was inherently improbable or defective b. Improper/evil motives had moved the witness to incriminate falsely [People v. Daen Jr., G.R. No. 112015 (1995)]

Page 488 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Note: Disqualification by reason of mental incapacity or immaturity (previously Sec. 21, Rule 130) and disqualification by reason of death or insanity of adverse party aka Dead Man’s Statute (previously Sec. 23, Rule 130) have been deleted in the 2019 Revisions.

a. Disqualification by Reason of Marriage Also known as Marital Disqualification Rule [Alvarez v. Ramirez, G.R. No. 143439 (2005)] or Spousal Immunity

Duration General rule: During their marriage [Sec. 23 Rule 130] Exception: Where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears, and the consequent danger of perjury based on that identity is non-existent [Alvarez v. Ramirez, G.R. No. 143439 (2005)]

Elements 1. During their marriage i. The marriage must be valid and existing at the time of the offer of the testimony 2. The husband or the wife cannot testify against the other i. The “other” spouse must be a party to the action, either as a plaintiff or defendant ii. Note: 2019 Revision removed the words “for or” 3. Without the consent of the affected spouse [Sec. 23, Rule 130]

Scope of Rule The rule also includes utterance as to facts or mere production of documents. It does not only prevent disclosure of matters communicated in nuptial confidence but is an absolute prohibition against the spouse’s testifying to any facts affecting the other however these facts may have been acquired. [Herrera]

Except: Spouse may testify against the other even without the consent of the latter 1. In a civil case by one against the other; or 2. In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants [Sec. 23, Rule 130]

Spouses as Co-Accused The other cannot be called as an adverse party witness under this Rule

Rationale 1. There is identity of interests between husband and wife; 2. If one were to testify against the other, there is a consequent danger of perjury; 3. Policy of the law is to guard the security and confidence of private life, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other [Alvarez v. Ramirez, G.R. No. 143439 (2005)]

Privilege A privilege is a rule of law that, to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise could be compelled to give, or permits someone usually one of the parties, to prevent the witness from revealing certain information. [Herrera]

Waiver of Disqualification If one spouse imputes the commission of a crime against the other, the latter may testify against the former. [People v. Francisco, G.R. No. L-568 (1947)]

b. Disqualifications by Reason of Privileged Communications; Rule on Third Parties

Privilege may only be invoked by the persons protected thereunder. It may also be waived by the same persons, either impliedly or expressly.

Page 489 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Note: this Section was substantially amended in the 2019 Revised Rules

3. Any conduct consent. [Herrera]

constructed

as

implied

i. Husband and Wife Also known as marital privilege Rationale Confidential nature of the privilege; to preserve marital and domestic relations Elements 1. The husband or the wife 2. During or after the marriage 3. Cannot be examined 4. Without the consent of the other 5. As to any communication received in confidence by one from the other during the marriage [Sec. 24(a), Rule 130] Except: Spouse may testify for or against the other even without the consent of the latter 1. In a civil case by one against the other, or 2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. [Sec. 24(a), Rule 130] A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died since the same was not intended to be confidential [US v. Antipolo, G.R. No. L-13109 (1918)] Scope: “Any communication” Includes utterances, either oral or written, or acts [Herrera] When not applicable 1. When the communication was not intended to be kept in confidence 2. When the communication was made prior to the marriage 3. Waiver of the privilege [Herrera] Waiver 1. Failure of the spouse to object; or 2. Calling spouse as witness on cross examination

The objection to the competency of the spouse must be made when he or she is first offered as a witness. The incompetency is waived by failure to make a timely objection to the admission of spouse’s testimony [People v. Pasensoy, G. R. No. 140634 (2002)] Marital Disqualification [Sec. 22] One spouse should be a party to the case; Applies only if the marriage is existing at the time the testimony is offered; and Constitutes a total prohibition on any testimony against the spouse of the witness

Marital Privilege [Sec. 24(a)] Neither of the spouses need to be a party; Does not cease even after the marriage is dissolved; and Prohibition is limited to testimony on confidential communications between spouses

ii. Attorney and Client Elements As regards an attorney or any person reasonably believed by the client to be licensed to engage in the practice of law 1. Without the consent of his client 2. Cannot be examined as to a. Any communication made by the client to him/her, or b. His/her advice given thereon in the course of, or with a view to, professional employment [Sec 24(b), Rule 130] As regards an attorney’s secretary, stenographer, clerk, or other persons assisting the attorney 1. Without the consent of the client and his/her employer 2. Cannot be examined

Page 490 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

3. Concerning any fact the knowledge of which has been acquired in such capacity [Sec. 24(b), Rule 130] Subject-matter of the privilege 1. Communications 2. Observations by the lawyer (regardless of medium of transmission which may include oral or written words and actions) 3. Tangible evidence delivered to a lawyer 4. Documents entrusted to a lawyer [Herrera] Exceptions 1. Furtherance of crime or fraud a. If the services or advice of the lawyer were sought or obtained b. To enable or aid anyone c. To commit or plan to commit d. What the client knew or reasonably should have known to be a crime or fraud [Sec. 24(b)(i), Rule 130] 2. Claimants through same deceased client a. As to communication relevant to an issue between parties who b. Claim through the same deceased client c. Regardless of whether the claims are by testate, intestate, or inter vivos transaction [Sec. 24(b)(ii), Rule 130] 3. Breach of duty by lawyer or client a. As to communications relevant to an issue of breach of duty i. By the lawyer to his/her client; or ii. By the client to his/her lawyer [Sec. 24(b)(iii), Rule 130] 4. Document attested by the lawyer a. As to communication relevant to an issue concerning an attested document b. The lawyer is an attesting witness [Sec. 24(b)(iv), Rule 130] 5. Joint clients a. As to a communication relevant to a matter of common interest between two or more clients b. The communication was made by any of them to c. The lawyer retained or consulted in common

d. Communication is offered in an action between any of the clients e. Neither expressly agreed otherwise [Sec. 24(b)(v), Rule 130] Identity of Client General rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. Exceptions: 1. When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; 2. When disclosure would open the client to liability; 3. When the name would furnish the only link that would form the chain of testimony necessary to convict [Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113 (1996)] Duration of the privilege In the absence of a statute, the privilege is permanent. It may even be claimed by a client’s executor or administrator after the client’s death [Herrera] iii. Physician and Patient Elements 1. A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy a. Psychotherapist: i. Person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition; or ii. A person licensed as a psychologist by the government while similarly engaged 2. In a civil case a. Note: the privilege cannot be claimed in a criminal case because the interest of the public in a criminal prosecution should be deemed more important than the secrecy of the communication [Riano, 211, 2016 Ed.]

Page 491 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

3. Without the consent of the patient 4. Cannot be examined as to a. Any confidential communication made between the patient and his/her physician or psychotherapist b. For the purpose of diagnosis or treatment i. Of the patient’s physical, mental, or emotional condition ii. Including drug or alcohol addiction

Note: this privilege also applies to persons, including members of the patient’s family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist. [Sec. 24(c), Rule 130] Physician-patient relationship need not be entered into voluntarily. When not applicable 1. Communication was not given in confidence 2. Communication was irrelevant to the professional employment 3. Communication was made for an unlawful purpose 4. Communication was intended for the commission/concealment of a crime 5. Communication was intended to be made public/divulged in court 6. When there was a waiver 7. When the doctor was presented as an expert witness and only hypothetical problems were presented to him [Lim v. C.A., G.R. No. 91114 (1992)] Waiver 1. Express waiver – may only be done by the patient 2. Implied waiver a. By failing to object b. When the patient testifies c. A testator procures an attending doctor to subscribe his will as an attesting witness d. Disclosure of the privileged information either made or acquiesced by the privilege holder before trial

e. Where the patient examines the physician as to matters disclosed in a consultation f. Also check Rule 28 on Physical and Mental Examination [Rules on Civil Procedure] [Herrera] Physician allowed to testify as an expert A doctor is allowed to be an expert witness when he does not disclose anything obtained in the course of his examination, interview and treatment of a patient. [Lim v. C.A., G.R. No. 91114 (1992)] Autopsical information If the information was not acquired by the physician in confidence, he may be allowed to testify thereto. But if the physician performing the autopsy was also the deceased’s physician, he cannot be permitted either directly or indirectly to disclose facts that came to his knowledge while treating the living patient [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron] Duration of privilege The privilege survives the death of the patient. [Riano, 212, 16th Ed.] Hospital Records during discovery procedure To allow the disclosure during discovery procedure of the hospital records would be to allow access to evidence that is inadmissible without the patient’s consent. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. [Chan v. Chan, G.R. No. 179786 (2013)] iv. Priest and Penitent Elements 1. A minister or priest or person reasonably believed to be so 2. Without the consent of the affected person 3. Cannot be examined as to any a. communication; or b. confession made to; or

Page 492 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

c. advice given by him/her 4. in his/her professional character 5. in the course of discipline enjoined by the church to which the minister or priest belongs [Sec. 24(d), Rule 130] v. Public Officers Elements 1. A public officer 2. During or after his/her tenure 3. Cannot be examined as to communications made to him/her in official confidence 4. When the court finds that the public interest would suffer by the disclosure [Sec. 24(e), Rule 130] Elements of “presidential communications privilege” 1. Must relate to a “quintessential and nondelegable presidential power;” 2. Must be authored or “solicited and received” by a close advisor of the President or the President himself; and 3. Privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere [Neri v. Senate, G.R. No. 180643 (2008)] Purpose The privilege is not intended for the protection of public officers but for the protection of the public interest. When no public interest would be prejudiced, this privilege cannot be invoked [Banco Filipino v. Monetary Board, G.R. No. 70054 (1986)). Rule on Third Parties The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. [Sec. 24, Rule 130 (last par.)] Note: This amendment is a stark contrast from the previous rule which removes the privilege

from communication that landed in the hands of third parties.

c. Parental and Filial Privilege Rule Sec. 25, Rule 130

Art. 215, FC

Art. 315, CC (repealed by FC)

No person shall be compelled to testify against his/her 1. Parents 2. other direct ascenda nts 3. children or 4. other direct descend ants

No descendant shall be compelled, in a criminal case, to testify against his parents and grandparent s

No descendant can be compelled, in a criminal case, to testify against his parents and ascendants

Except when such testimony is indispensabl e in a crime 1. against that person or 2. by one parent against the other.

Except when such testimony is indispensabl e in a crime 1. against the descend ant or 2. by one parent against the other

NONE

Applicability The rule is applied to both civil and criminal cases [Herrera] The privilege cannot apply between stepmothers and stepchildren because the rule applies only to direct ascendants and descendants, a family tie connected by a

Page 493 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

common ancestry. [Lee v. C.A., G.R. No. 177861 (2010)] A child can waive the filial privilege and choose to testify against his father. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. [People v. Invencion y Soriano, G.R. No. 131636 (2003)]

d. Trade Secrets General Rule: A person cannot be compelled to testify about any trade secret Except: the non-disclosure will conceal fraud or otherwise work injustice When disclosure is directed, the court shall take protective measures, as required by 1. the interests of the owner of the trade secret; 2. the interests of the parties; and 3. the furtherance of justice [Sec. 26, Rule 130] Note: This is a new rule. OTHER PRIVILEGED COMMUNICATION NOT IN THE RULES OF COURT

2. Information in Conciliation Proceedings All information and statements made at conciliation proceedings shall be treated as privileged communications [Art. 233, Labor Code] 3. Data Privacy Act Personal information controllers may invoke the principle of privileged communication over privileged information that they lawfully control or process. Subject to existing laws and regulations, any evidence gathered on privileged information is inadmissible [Sec. 15, RA 10173] 4. Food and Drug Administration Act Prohibits the use of a person to his own advantage, or revealing, other than to the Secretary of Health or officers or employees of the Department of Health or to the courts when relevant in any judicial proceeding under this Act, any information acquired under authority Board of Food Inspection and Board of Food and Drug, or concerning any method or process which as a trade secret is entitled to protection [Secs. 9, 11 (f) and 12, RA 3720]

3. Examination of a Witness

1. Newsman’s Privilege General rule: Publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter Exception: Court or a House/Committee of Congress finds that such revelation is demanded by security of the State Note: This is without prejudice to his liability under the civil and criminal laws [R.A. 53, as amended by R.A. 1477]

Shall be done a. in open court, and b. under oath or affirmation. Answers shall be given orally, unless the a. witness is incapacitated to speak, or b. question calls for a different mode of answer [Sec. 1, Rule 132] Proceedings to be recorded, including a. the questions propounded to a witness and his answers thereto b. the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case by means of shorthand or stenotype or by other means of recording found suitable by the court [Sec. 2, Rule 132]

Page 494 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Transcript deemed prima facie correct A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings [Sec. 2, Rule 132] Exclusion and separation of witnesses The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear the testimony of other witnesses However, this rule does NOT AUTHORIZE exclusion of: a. a party who is a natural person; b. a duly designated representative of a juridical entity which is a party to the case; c. a person whose presence is essential to the presentation of the party’s cause; or d. a person authorized by a statute to be present. The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. [Sec. 15]

a. Rights and Obligations of a Witness RIGHTS 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. To only be examined as to matters pertinent to the issue; 4. Not to give an answer which will tend to subject him/her to a penalty for an offense a. Unless: otherwise provided by law Example of this right: Sec. 8, R.A. 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted 5. Not to give an answer which will tend to degrade his/her reputation a. Exceptions:

i. ii.

the answer is the very fact in issue; the answer is a fact from which the fact in issue would be presumed b. Exception to the exception: he/she must answer to the fact of his/her previous final conviction for an offense [Sec. 3, Rule 132] OBLIGATION A witness must answer questions, although his/her answer may tend to establish a claim against him/her. [Sec. 3, Rule 132] One-Day Examination of Witness Rule A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or crossexamination for justifiable reasons. [A.M. No. 03-1-09-SC]

b. Order in the Examination of an Individual Witness 1. Direct examination by the proponent; 2. Cross-examination by the opponent; 3. Re-direct examination by the proponent; 4. Re-cross examination by the opponent. [Sec. 4, Rule 132] Direct examination — examination-in-chief of a witness by the party presenting him/her on the facts relevant to the issue [Sec. 5, Rule 132] Cross-examination — the witness may be cross examined by the adverse party on any relevant matter with sufficient fullness and freedom • Purpose: to test the witness’ accuracy, truthfulness and freedom from interest or bias, or the reverse; and to elicit all important facts bearing upon the issue [Sec. 6, Rule 132] Right to cross-examination Cross-examination is the most reliable and effective way known of testing the credibility and accuracy of testimony. This is an essential element of due process. [Herrera, citing Alford v. US (1931)]

Page 495 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

The right to cross-examine under the constitution is superior to technical rules on evidence. [Herrera, citing People v. Valero, G.R. No. L-45283-84 (1982)] Effect of denial of right to cross-examine Most courts require that the testimony given on direct examination be stricken off – provided the unavailability of the witness is through no fault of the party seeking to cross-examine. [Herrera] Cross-examination must be completed or finished. When cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. [Herrera, citing Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. L-28773 (1975)] Re-direct examination—re-examination of the witness by the party calling him/her • Purpose: to explain or supplement his/her answers given during the crossexamination • Questions on matters not dealt with during the cross-examination may be allowed by the court in its discretion. [Sec. 7, Rule 132] Re-cross-examination — re-crossexamination of the witness by the adverse party on matters stated in his/her re-direct and on other matters allowed by the court in its discretion [Sec. 8, Rule 132] Recalling the witness After examination by both sides has been concluded, the witness cannot be recalled without leave of court. [Sec. 9, Rule 132] Why conducted 1. Particularly identified material points were not covered in cross-examination 2. Particularly described vital documents were not presented to the witness 3. Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People v. Rivera, G.R. No. 98376 (1991)]

c. Leading Questions

and

Misleading

Leading question: A question which suggests to the witness the answer which the examining party desires General rule: Not allowed Except: a. On cross examination; b. On preliminary matters; c. When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; d. Of an unwilling or hostile witness; or e. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party [Sec. 10, Rule 132] Misleading question: One which assumes as true a fact not yet testified to by the witness, or contrary to that which he/she has previously stated. It is not allowed. [Sec. 10, Rule 132]

d. Impeachment of Witness i. Adverse party’s witness a. By contradictory evidence; b. By evidence that his/her general reputation for truth, honesty or integrity is bad; c. By evidence that he/she 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/she has been convicted of an offense. [Sec. 11, Rule 132]

Page 496 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

ii. By evidence of conviction of crime a. By evidence that he/she has been convicted by final judgment of a crime: i. Punishable by a penalty in excess of one year; or ii. Involving moral turpitude, regardless of penalty HOWEVER, evidence of conviction is not admissible if the conviction has been subject of an amnesty or annulment of the conviction. [Sec. 12, Rule 132]

iv. How the witness is impeached by evidence of inconsistent statements a. The statements must be related to him/her, with the circumstances of the times and places and the persons present, and b. He/she must be asked whether he/she made such statements, and if so, allowed to explain them. c. If the statements be in writing, they must be shown to the witness before any question is put to him/her concerning them [Sec. 14, Rule 132]

Note: This is a new rule.

e. Referral of Memorandum

iii. Own witness Party may not impeach his own witness EXCEPT with respect to a. An unwilling or hostile witness; or b. 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 When witness considered unwilling or hostile Only if so declared by the court upon adequate showing of his/her a. adverse interest b. unjustified reluctance to testify, or c. having misled the party into calling him/her to the witness stand How impeached: The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him/her in all respects as if he/she had been called by the adverse party, except by evidence of his bad character. He/she may also be impeached and cross-examined by the adverse party, but such crossexamination must only be on the subject matter of his examination-in-chief. [Sec. 13, Rule 132]

Witness

to

When witness may refer to memorandum a. A witness may be allowed to refresh his/her memory respecting a fact 1. by anything written or recorded 2. by himself/herself or under his/her direction 3. at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his/her memory and 4. he/she knew that the same was correctly written or recorded 5. the writing or record must be produced and may be inspected by the adverse party, who may, if he/she chooses, cross-examine the witness upon it, and may read it in evidence. b. A witness may also testify from such a writing or record, though he/she retain no recollection of the particular facts, if he/she is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. [Sec. 16, Rule 132] When part of transaction, writing or record given in evidence, the remainder admissible. a. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the

Page 497 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

same subject may be inquired into by the other b. 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 [Sec. 17, Rule 132] Right to inspect writing shown to witness Whenever a writing is shown to a witness, it may be inspected by the adverse party [Sec. 18, Rule 132]

f. Examination of a child witness (A.M. No. 004-07-SC)

Exception: the court shall conduct a competency examination of a child, motu proprio or on motion of a party when it finds that substantial doubt exists regarding the child’s ability to: 1. Perceive 2. Remember 3. Communicate 4. Distinguish from falsehood, or 5. Appreciate the duty to tell the truth in court [Sec. 6] Proof of necessity The party seeking a competency examination must present proof of its necessity. The age of the child, by itself, is not a sufficient basis. [Sec. 6(a)] Burden of proof lies with the party challenging the child’s competence. [Sec. 6(b)]

i. Applicability of the rule Unless otherwise provided, this rule shall govern the examination of a child witness who are: 1. victims of a crime; 2. accused of a crime; and 3. witnesses to a crime Where applicable: all criminal and non-criminal proceedings involving child witnesses [Sec. 1, Rule on Examination of a Child Witness] ii. Meaning of “child witness" Child witness—any person who at the time of giving testimony is: 1. below the age of 18 years; or 2. in child abuse cases, may be over 18 but is found by the court 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 [Sec. 4 (a), Rule on Examination of a Child Witness]

Conduct of examination 1. Conducted only by the judge 2. Counsel for the parties may submit questions to the judge a. It is discretionary upon the judge if he will ask the child the submitted questions [Sec. 6(d)] Developmentally appropriate questions The questions asked shall: 1. be appropriate to the age and developmental level of the child; 2. not be related to the issues at trial; and 3. focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. [Sec. 69(d)] Continuing duty to assess competence The court has the duty of continuously assessing the competence of the child throughout his testimony [Sec. 6(f)] iv. Examination of a child witness

iii. Competency of a child witness General Rule: Every child is presumed qualified to be a witness.

Done in open court General Rule: Given orally

Page 498 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Exception: If the witness is incapacitated to speak or the question calls for a different mode of answer [Sec. 8] v. Live-link TV testimony of a child witness The prosecutor, counsel or guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Prerequisite for applying: the guardian ad litem shall consult the prosecutor or counsel and defer to their judgment regarding the necessity of applying for an order. If the guardian is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. [Sec. 25(a)] When applied for: at least 5 days before the trial date UNLESS the court finds on the record that the need for such an order was not reasonably foreseeable [Sec. 25(a)] The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. [Sec. 25(e)] When granted: if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor a. the trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child [Sec. 25(f)] The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Sec. 31(b). [Sec. 25(h)]

vi. Videotaped deposition of a child witness The prosecutor, counsel or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Prerequisite for applying: Same as application for live-link TV testimony in Sec. 25(a) When granted: If the court finds that the child will not be able to testify in open court at trial The judge shall preside at the videotaped deposition of the child. Objection to deposition testimony or evidence, or parts thereof, and the grounds of objection shall be stated and ruled upon at the time of the taking of the deposition. Who else is allowed in the proceeding: a. prosecutor b. defense counsel c. guardian ad litem d. accused, subject to subsection (e) 1. if there is evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room where the deposition is conducted 2. in case of exclusion of the accused, the court shall order the testimony of the child to be taken by live-link TV in accordance with Sec. 25 3. it is not necessary for the child to be able to view an image of the accused e. other persons whose presence is determined by the court to be necessary for the welfare and well-being of the child f. one or both of his support persons, the facilitator and interpreter, if any g. court stenographer; and h. persons necessary to operate the videotape equipment [Sec. 27(c)]

Page 499 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Rights of the accused during trial, especially the right to counsel and confront and crossexamine the child, shall NOT BE VIOLATED during the deposition.

v.

vi.

If, at the time of the trial, the court finds that the child is unable to testify for a reason stated in Sec. 25(f) of this Rule or is unavailable for any reason described in Rule 23, Sec 4(c) of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. [Sec. 27] vii. Hearsay exception in child abuse cases Applicability: Any criminal and non-criminal proceeding 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 subject to the following rules: 1. Before the hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars a. Reason: to provide him a fair opportunity to object b. 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 c. if the child is unavailable: the fact of unavailability must be proved by the opponent [Sec. 28(a)] 2. The court shall consider the time, content and circumstances of the hearsay statement which provide sufficient indicia of reliability a. factors to consider: i. motive to lie ii. general character of declarant child iii. whether more than one person heard the statement iv. whether the statement was spontaneous

vii. viii.

timing of the statement and the relationship between the declarant child and witness cross-examination could not show the lack of knowledge of the declarant child possibility of faulty recollection of the declarant child is remote the circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused [Sec. 28(b)]

When a child is considered unavailable: a. He/she is deceased, suffers from mental infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or b. He/she is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means [Sec. 28(c)] Condition for admissibility if child is unavailable: His/her hearsay testimony must be corroborated by other admissible evidence [Sec. 28(d)] viii. Sexual abuse shield rule General Rule: The following evidence is inadmissible 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 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

Page 500 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Requirements for party intending to offer such evidence: 1. Written motion filed at least 15 days before trial, specifically describing the evidence and stating the purpose for which it is offered a. Exception: if the court, for good cause, requires a different time for filing or permits filing during trial 2. Motion served on all parties and the guardian ad litem at least 3 days before the hearing of the motion

4.

Hearing necessary Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his/her guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order. The child shall not be required to testify at the hearing in chambers EXCEPT if he consents. [Sec. 30] ix. Protective orders

5.

Coverage: Any videotape or audiotape of a child that is part of the court record Provisions of the order: 1. Tapes may be viewed only by the parties, their counsel, their expert witnesses, and the guardian ad litem 2. No tape, or any portion thereof, shall be divulged by any person mentioned in Sec. 31(a) to any other person, except as necessary for the trial a. Persons in Sec. 31(a): members of the court staff for administrative use, the prosecuting attorney, defense counsel, guardian ad litem, agents of investigating law enforcement agencies, and other persons as determined by the court 3. No person shall be granted access to the tape, its transcript, or any part thereof, UNLESS:

6.

7.

a. he signs a written affirmation that he has received and read a copy of the protective order; b. he submits to the jurisdiction of the court with respect to the protective order; and c. in case of violation, he will be subject to the contempt power of the court Each of the cassette tapes and transcripts thereof made available to the parties, their counsel, and their respective agents shall bear the following cautionary notice: a. “This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law.” No tape shall be given, loaned, sold, or shown to any person EXCEPT as ordered by the court Within 30 days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping UNLESS the period is extended by the court on motion of a party This protective order shall remain in full force and effect until further order of the court. [Sec. 31(b)]

Additional protective order The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. [Sec. 31(c)]

Page 501 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

4. Admissions and Confessions a. Admission by a Party Elements 1. The act, declaration or omission 2. Of a party 3. As to a relevant fact 4. Against his or her interest [Sec. 27, Rule 130] 5. Made out of court (Those made in court are governed by Sec. 4, Rule 129.) [2 Regalado 754, 2008 Ed.] 6. Offered and presented in court in an admissible manner (e.g. non-hearsay) EXTRAJUDICIAL ADMISSIONS Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. [2 Regalado 754, 2008 Ed., citing 31 C.J.S. 1022] A statement by the accused, direct or implied, of facts pertinent to the issue, and tending in connection with proof of other facts, to prove his guilt. [People v. Lorenzo, G.R. No. 110107 (1995)] Requisites for Admissibility 1. They must involve matters of fact; 2. They must be categorical and definite; 3. They must be knowingly and voluntarily made; and 4. Is adverse to admitter’s interests [2 Regalado 754, 2008 Ed.] Effect of an Admission It may be given in evidence against the admitter. [Sec. 27, Rule 130]

Judicial and Extrajudicial Admissions Judicial Extrajudicial Made in connection with a judicial Any other admission proceeding in which [Secs. 27 and 33, it is offered [Sec. 4, Rule 130] Rule 129] Must still be formally offered in evidence Does not require (Note the language proof [Sec. 4, Rule of Sec. 27, Rule 130: 129] “may be given in evidence”) May be conclusive unless contradicted Rebuttable [Sec. 4, Rule 129] May be written, oral express or implied [Sec. 4, Rule 129; Sec. 27, Rule 130]

b. Res Inter Alios Acta Rule “Res inter alios acta alteri nocere non debet”— Things done between strangers ought not to injure those who are not parties to them [Black’s Law Dictionary] Two Branches 1. First branch: Admission by a third party [Sec. 29, Rule 130] 2. Second branch: Similar acts as evidence [Sec. 35, Rule 130] [2 Regalado 758, 774, 2008 Ed.]

c. Admission by a Third Party General rule: The rights of a party cannot be prejudiced by an act, declaration, or omission of another [Sec. 29, Rule 130]

Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala, G.R. No. L-12988 (1918)]

Admission by a third party is inadmissible as against another. The act, declaration or omission of another is generally irrelevant, and that in justice, a person should not be bound by the acts of mere unauthorized strangers.

Rationale No man would make any declaration against himself unless it is true. [Republic v. Bautista, G.R. No. 169801 (2007)]

The rule is well-settled that a party is not bound by any agreement of which he has no knowledge and to which he has not given his consent and that his rights cannot be

Page 502 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

prejudiced by the declaration, act or omission of another, except by virtue of a particular relation between them. Exceptions: 1. Partner’s or Agent’s Admission [Sec. 30, Rule 130] 2. Admission by conspirator [Sec. 31, Rule 130] 3. Admission by privies [Sec. 32, Rule 130]

Statements made after partnership is dissolved As a rule, statements made after the partnership has been dissolved do not fall within the exception, but where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partners in said winding up [2 Regalado 759, 2008 Ed.]

Basis of exception A third party may be so united in interest with the party-opponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

Joint interests 1. The joint interest must be first made to appear by evidence other than the admission itself 2. The admission must relate to the subjectmatter of joint interest [Herrera]

Note: the res inter alios acta rule only applies to extrajudicial declarations (admissions and confessions). However, when the declarant repeats his extrajudicial declaration in open court and his co-accused are given the opportunity to cross-examine him, the declaration becomes admissible against the co-accused.

The word “joint” must be construed according to its meaning in the common law system, that is, in solidum for the whole. [Jaucian v. Querol, G.R. No. L-11307 (1918)] A mere community of interests between several persons is not sufficient to make the admissions of one admissible against all. [Herrera]

d. Admission by a Co-Partner or Agent Requisites for Admissibility 1. The act or declaration 2. Of a partner or agent a. authorized by the party to make a statement concerning the subject; or b. within the scope of his/her authority 3. During the existence of the partnership or agency, 4. May be given in evidence against such party 5. After the partnership or agency is shown by evidence other than such act or declaration (evidence aliunde) [Sec. 30, Rule 130] This rule also applies to the act or declaration of a joint owner, joint debtor, or other persons jointly interested with the party [Sec. 30, Rule 130]

Just like in partnership and agency, the interest must be a subsisting one unless for the admission to be admissible. [Herrera]

e. Admission by a Conspirator Requisites for Admissibility 1. The act or declaration 2. Of a conspirator 3. In furtherance of the conspiracy and during its existence, 4. May be given in evidence against the coconspirator 5. After the conspiracy is shown by evidence other than such act or declaration (evidence aliunde) [Sec. 31, Rule 130] An exception to the res inter alios acta rule is an admission made by a conspirator under Sec. 30, Rule 130. [People v. Cachuela, G.R. No. 191752 (2013)]

Page 503 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Existence of the conspiracy may be inferred from acts of the accused [People v. Belen, G.R. No. L-13895 (1963)). Applies only to extra-judicial statements, not to testimony given on the stand [People v. Serrano, G.R. No. L-7973 (1959)] or at trial where the party adversely affected has the opportunity to cross-examine. [People v. Palijon, G.R. No. 123545 (2000]

Applicable to extrajudicial statements The evidence adduced in court by the conspirators as witnesses are not declarations of conspirators, but direct testimony to the acts to which they testify. This is applicable only when it is sought to introduce extrajudicial declarations and statements of the coconspirators [Herrera, citing People v. Vizcarra, G.R. No. L-38859 (1982)]

f. Admission by Privies As regards extrajudicial admissions AFTER termination of conspiracy, BEFORE trial General rule: Not admissible [People v. Badilla, G.R. No. 23792 (1926); People v. Yatco, G.R. No. L-9181 (1955)] Exceptions: 1. Made in the presence of the co-conspirator who expressly/impliedly agreed (tacit admission) 2. Facts in admission are confirmed in the independent extrajudicial confessions made by the co-conspirators after apprehension [People v. Badilla, G.R. No. 23792 (1926)] 3. As a circumstance to determine credibility of a witness [People v. Narciso, G.R. No. L-24484 (1968)] 4. Circumstantial evidence to show the probability of the latter’s participation [2 Regalado 761, 2008 Ed.] Doctrine of interlocking confessions Extrajudicial statements of co-accused may be taken as circumstantial evidence against the person implicated to show the probability of the latter’s actual participation, provided that the statements are made by several accused are: 1. Made without collusion 2. Identical with each other in their essential details; 3. Corroborated by other evidence on record [People v. Molleda, G.R. No. L-34248 (1978), People v. Tuniaco, G.R. No. 185710 (2010)] Note: Interlocking confessions may also be used as evidence aliunde to prove conspiracy

Privies Persons who are partakers or have an interest in any action or thing, or any relation to another [Riano 262, 2016 Ed., citing Black’s Law Dictionary] It denotes the idea of succession, not only by right of heirship and testamentary legacy, but also that of succession by singular title, derived from acts inter vivos, and for special purposes. (example: assignee of a credit and one subrogated to it are privies.) [Alpuerto v. Perez Pastor and Roa, G.R. No. L-12794 (1918)] Requisites for Admissibility 1. One derives title to property from another 2. The act, declaration, or omission a. of the latter (the person from whom title is derived) b. while holding the title c. in relation to the property 3. is evidence against the former (one who derives title from another) [Sec. 32, Rule 130]

g. Admission by Silence An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him/her to do so, may be given in evidence against him/her. [Sec. 33, Rule 130] Requisites: When silence is deemed an admission 1. Person heard or understood the statement; 2. That he was at a liberty to make a denial;

Page 504 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

3. That the statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response; 4. That the facts were within his knowledge; and 5. That the fact admitted from his silence is material to the issue [People v. Paragsa, G.R. No. L-44060 (1978)] This rule applies even when a person was surprised in the act [US v. Bay, G.R. No. 9341 (1914)] or even if he was already in the custody of the police [People v. Ancheta, G.R. No. 143935 (2004)] When not applicable 1. Statements adverse to the party were made in the course of an official investigation [U.S. v. De la Cruz, G.R. No. 4740 (1908)], as where he was pointed out in the course of a custodial investigation and was neither asked to reply nor comment on such imputations [People v. Alegre, G.R. No. L-30423 (1979)] 2. Party had justifiable reason to remain silent, e.g. acting on advice of counsel [2 Regalado 763, 2008 Ed.] Failure to file a comment Respondent’s failure to file a comment despite all the opportunities afforded him constituted a waiver of his right to defend himself. In the natural order of things, a man would resist an unfounded claim or imputation against him. It is generally contrary to human nature to remain silent and say nothing in the face of false accusations. As such, respondents' silence may be construed as an implied admission and acknowledgement of the veracity of the allegations against him [OCA v. Amor, A.M. No. RTJ-08-2140 (2014)]

h. Confessions The declaration of an accused acknowledging his/her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him/her. [Sec. 34, Rule 130]

An acknowledgment in express words or terms, by a party in a criminal case, of his guilt of the crime charged. [People v. Lorenzo, G.R. No. 110107 (1995)] Requisites 1. Express and categorical acknowledgement of guilt [U.S. v. Corrales, G.R. No. 9230 (1914)] 2. Facts admitted constitutes a criminal offense [U.S. v. Flores, G.R. No. 9014 (1913)] 3. Given voluntarily [People v Nishishima, G.R. No. 35122 (1932)] 4. Intelligently made [Bilaan v Cusi, G.R. No. L-18179 (1962)], realizing the importance or legal significance of the act [U.S. v. Agatea, G.R. No. 15177 (1919)] 5. No violation of Secs. 12 and 17, Art. III of the Constitution [2 Regalado 765, 2008 Ed.] If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [Ladiana v. People, G.R. No. 144293 (2002)] Any confession, including a re-enactment, without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming, G.R. No. 120959 (1996)] [T]he basic test for the validity of a confession is – was it voluntarily and freely made. The term "voluntary" means that the accused speaks of his free will and accord, without inducement of any kind, and with a full and complete knowledge of the nature and consequences of the confession, and when the speaking is so free from influences affecting the will of the accused, at the time the confession was made, that it renders it admissible in evidence against him. Plainly, the admissibility of a confession in evidence hinges on its voluntariness [People v. Satorre, G.R. No. 133858 (2003)] An extrajudicial confession may be given in evidence against the confessant but not against his co-accused (since) they are deprived of the opportunity to cross-examine

Page 505 of 525

U.P. LAW BOC

him. A judicial confession is admissible against the declarant’s co-accused since the latter are afforded the opportunity to crossexamine the former. [People v. Palijon, G.R. No. 123545 (2000), cited in People v. Janjalani, G.R. No. 188314 (2011)] Effect of Extrajudicial Confession of Guilt General rule: An extrajudicial confession made by an accused, shall not be a sufficient ground for conviction Exception: When corroborated by evidence of corpus delicti [Sec. 3, Rule 133] Corpus Delicti Substance of the crime; the fact that a crime has actually been committed [People v. De Leon, G.R. No. 180762 (2009)] As Distinguished from Admissions of a Party Admission of a Confession Party Acknowledgment of A statement of fact [2 guilt or liability [2 Regalado 754, 2008 Regalado 754, 2008 Ed.] Ed.] Maybe express or Must be express [2 tacit [2 Regalado 754, Regalado 754, 2008 2008 Ed.] Ed.] Can be made only by Maybe made by 3rd the party himself, and parties, and in certain admissible against cases, admissible his co-accused in against a party [2 some instances [2 Regalado 754, 2008 Regalado 754, 2008 Ed.] Ed.] Acts, declarations or Declarations [Sec. omissions [Sec. 26, 34, Rule 130] Rule 130] May be in any proceeding (Sec. 27, Rule 130 refers to a party without distinction as to nature of proceeding)

REMEDIAL LAW

EVIDENCE

Criminal case (Sec. 34, Rule 130 refers to “accused”)

i. Similar Acts 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/she did or did not do the same or similar thing at another time Exceptions: Said evidence may be received to prove a: 1. specific intent or knowledge 2. identity 3. plan, system, or scheme 4. habit 5. custom or usage and the like [Sec. 35, Rule 130] 2nd Branch of res inter alios acta rule [2 Regalado 774, 2008 Ed.] Reason for General Rule The lone fact that a person committed the same or similar act at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. A man’s mind and even his modes of life may change; and objectively, the conditions which he may find himself at a given time make likewise change and induce him to act a different way [Herrera, citing Moran]

j. Admissibility compromise

of

Offers

of

In civil cases An offer of compromise is not an admission of any liability and is not admissible in evidence against the offeror General rule: Evidence of conduct or statements made in compromise negotiations are also not admissible Exceptions: Evidence otherwise discoverable or offered for another purpose such as a. proving bias or prejudice of a witness; b. negativing a contention of undue delay; or c. proving an effort to obstruct a criminal investigation or prosecution In criminal cases

Page 506 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

General rule: An offer of compromise by the accused may be received as an implied admission of guilt Exception: In cases involving quasi-offenses (criminal negligence) or those allowed by the law to be compromised Pleas of guilty Not admissible against the accused who made the plea or offer: a. Plea of guilty later withdrawn; b. Unaccepted offer of a plea of guilty to a lesser offense; or c. Statement made in the course of plea bargaining with the prosecution which does not result in a plea of guilty or which results in a plea of guilty later withdrawn Offer to pay medical, hospital or other expenses Offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury [Sec. 28, Rule 130]

5. Hearsay Rule Note: Provisions on hearsay were substantially changed in the 2019 Amended Rules.

a. Meaning of Hearsay Hearsay is a statement other than the one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein Statement—oral or written assertion OR nonverbal conduct of a person if it is intended by him/her as an assertion [Sec. 39, Rule 130] Elements 1. Declarant is out of court 2. Out of court declaration is offered as proof of its contents 3. Absence of opportunity for crossexamination

General Rule on Hearsay A witness can testify only as to those facts which he/she knows of his personal knowledge, that is, which are derived from his/her own perception [Sec. 22, Rule 130] If a party does not object to hearsay evidence, the same is admissible, as a party can waive his right to cross-examine [People v. Ola, G.R. No. L-47147 (1987)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng Manggagawang Pilipino, G.R. No. L-38964 (1975)] When a statement is NOT hearsay: 1. If the declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement; and 2. The statement is: a. Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition b. Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive c. Identification of a person made after perceiving him/her [Sec. 37, Rule 130]

b. Reason for Exclusion Hearsay Evidence

of

The underlying rule against hearsay are serious concerns about the worth (trustworthiness, reliability) of hearsay evidence. Because such evidence: 1. was not given under oath or solemn affirmation; and 2. was not subject to cross-examination by opposing counsel to test the perception, memory, veracity and articulateness of outof-court declarant or actor upon whose reliability on which the worth of the out-ofcourt testimony depends [Herrera]

Page 507 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or writings are attributed [Philippines Free Press v. C.A., G.R. No. 132864 (2005)]

c. Exceptions to the Hearsay Rule 1. Dying declaration 2. Statement of decedent or person of unsound mind 3. Declaration against interest 4. Act or declaration about pedigree 5. Family reputation or tradition regarding pedigree 6. Common reputation 7. Part of the res gestae 8. Records of regularly conducted business activity 9. Entries in official records 10. Commercial lists and the like 11. Learned treatises 12. Testimony or deposition at a former trial 13. Residual exception i. Dying Declaration Also known as “antemortem statement” or “statement in articulo mortis” [People v. Mendoza, G.R. No. 142654 (2001)] Requisites for Admissibility a. Declaration of a dying person b. Declaration was made under the consciousness of an impending death c. Declaration may be received in any case wherein his/her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death [Sec. 38, Rule 130] d. Declarant would have been competent as a witness had he survived [Geraldo v People, G.R. No. 173608 (2008)); and e. Declarant should have died [People v. Macandog, G.R. No. 129534 and 1411691 (2001)]

A dying declaration must be single hearsay to be admissible [People v. Bautista, G.R. No. 117685 (1999)] Rationale for Admissibility As a general rule, when a person is at the point of death, every motive to falsehood is silenced [People v Bacunawa, G.R. No. 136859 (2001)] The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered by the court. [People v. Cerilla, G.R. No. 177147 (2007)] The admissibility of an ante mortem declaration is not affected by the fact that the declarant died hours or several days after making his declaration. It is sufficient that he believes himself in imminent danger of death at the time of such declaration [Herrera, citing People v. Ericta 77 SCRA 199] The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. Objections to the dying declaration May be premised on any of the requisites for its admissibility embodied in Sec. 38, Rule 130. [Riano 302, 2016 Ed.] Dying declarations are admissible in favor of the defendant as well as against him [US v. Antipolo, 37 Phil. 726 (1918)]

Page 508 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

ii. Statement of Decedent or Person of Unsound Mind Requisites for Admissibility General rule: Any statement of the deceased or the person of unsound mind may be received in evidence a. In an action against: 1. an executor, administrator or other representative of a deceased person; OR 2. a person of unsound mind b. Upon a claim or demand against the estate of such deceased person or against such person of unsound mind c. Where party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased or before the person became of unsound mind d. Statement was made by the deceased or person of unsound mind at a time where the matter had been recently perceived by him/her while his/her recollection was clear Exception: The statement is inadmissible if made under circumstances indicating its lack of trustworthiness [Sec. 39, Rule 130] iii. Declaration Against Interest Requisites for Admissibility a. Declarant is dead or unable to testify; b. Declaration relates to a fact against the interest of the declarant; c. At the time he made said declaration, declarant was aware that the same was contrary to the declarant’s own interest; and d. Declarant had no motive to falsify and believed such declaration to be true [Sec. 40, Rule 130] When NOT admissible General rule: If the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused

Exception: Admissible if corroborating circumstances clearly indicate the trustworthiness of the statement [Sec. 40, Rule 130] Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. C.A., G.R. No. 111692 (1996)] Admissible against third persons Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons [Sec. 40, Rule 130] Actual or real interest It is essential that at the time of the statement, the declarant’s interest affected thereby should be actual, real or apparent, not merely contingent, future or, conditional; otherwise the declaration would not in reality be against interest. (Example: declarations regarding a declarant’s inheritance are not admissible because these are future interests) [Herrera] As Distinguished from Admissions Admission by a Declaration party [Sec. 27, against Interest Rule 130] [Sec. 40, Rule 130] Admitter is a party Declarant is neither himself, or in privity a party nor in privity with such party with a party Admissible whether Admissible only or not admitter is when declarant is available as a unavailable as a witness witness Can be made any Must have been time, even during made ante litem trial motam Admissible only Admissible even against the admitter against 3rd persons Admissible as an Admissible not as an exception to the exception to any rule hearsay rule

Page 509 of 525

U.P. LAW BOC

Made against one’s claim or defense, although not moral or pecuniary interest Primary evidence [Estrada v. Desierto, (2001)]

REMEDIAL LAW

EVIDENCE

Made against one’s pecuniary or moral interest Secondary evidence G.R. Nos. 146710-15

iv. Act or Declaration About Pedigree Requisites for Admissibility a. The act or declaration b. Of a person deceased or unable to testify c. In respect to the pedigree of another person related to him/her by 1. birth; 2. adoption; 3. marriage; or 4. in the absence thereof, with those family he/she was so intimately associated as to be likely to have accurate information concerning his/her pedigree d. May be received in evidence where the act/declaration occurred before the controversy; and e. Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration (evidence aliunde) [Sec. 41, Rule 130] Pedigree includes a. Relationship; b. Family genealogy; c. Birth; d. Marriage; e. Death; f. Dates when these facts occurred; g. Places where these facts occurred; h. Names of relatives; and i. Facts of family history intimately connected with pedigree [Sec. 40, Rule 130] Pedigree declaration by conduct This rule may also consist of proof of acts or conduct of relatives and the mode of treatment in the family of one whose parentage is in question [Herrera 649]

v. Family Reputation or Tradition Regarding Pedigree Requisites for Admissibility a. Witness must be a member, by consanguinity, affinity, or adoption, of the same family as the subject; and b. Such reputation or tradition must have existed in that family ante litem motam (before the controversy) [Sec. 42, Rule 130] 1. Note: ante litem motam means before the controversy arose, not before the suit was brought (Prof. Avena) Other Admissible Evidence a. Entries in family bibles or other family books; b. Charts; c. Engravings on rings; d. Family portraits and the like [Sec. 42, Rule 130] This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person [Jison v. C.A., G.R. No. 124853. (1998)] A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition [Gravador v. Mamigo, G.R. No. L-24989, (1967)] Distinguished from Pedigree Sec. 41 – Declaration about Pedigree There must be a declarant and a witness The witness need not be a relative of the person whose pedigree is in question, it must be the declarant.

Page 510 of 525

Declaration

about

Sec. 42 – Family Reputation or Tradition The witness testifying to the family reputation and tradition must be a member of the family member of the person whose pedigree is in controversy.

U.P. LAW BOC

Independent evidence is needed to establish relationship between declarant and person whose pedigree is in issue

REMEDIAL LAW

EVIDENCE

The witness may testify about the relationship himself. The author of the reputation need not be established by independent evidence.

[Herrera] vi. Common Reputation Definition: The definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous [2 Regalado, 787, 2008 Ed.] Requisites for Admissibility a. Common reputation existed ante litem motam b. Reputation pertains to: 1. boundaries of or customs affecting lands in the community 2. events of general history important to the community 3. marriage, or 4. moral character [Sec. 43, Rule 130] Note: The 30-year rule was removed in the Amended Rules Other Admissible Evidence a. Monuments b. Inscriptions in public places [Sec. 43, Rule 130] Pedigree may be established by reputation in the family, but not in the community [Secs. 4243, Rule 130]

Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive [In re: Florencio Mallare, A.M. No. 533 (1974)] Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest. [In re: Florencio Mallare, AM No. 533 (1974)] vii. Part of the Res Gestate Res gestae — “things done” Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement [DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network, Inc., G.R. No. 147039 (2006)] A dying declaration can be made only by the victim, while a statement as part of the res gestae may be that of the killer himself after or during the killing [2 Regalado 788, 2008 Ed., citing People v. Reyes, G.R. Nos. L-1846–48 (1949)] A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately after the incident [People v. Gueron, G.R. No. L-29365 (1983)]

Common reputation is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness [Riano 327, 2016 Ed., citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542]

Page 511 of 525

U.P. LAW BOC

Requisites for res gestae Spontaneous Verbal Acts Statements a. The principal a. The res gestae act, the res or principal act gestae, be or to be made due to a characterized startling must be occurrence equivocal; b. The statements b. Such act must were made be material to before the the issue declarant had c. The statements the opportunity must to contrive accompany the c. The statements equivocal act. must refer to the d. The statements occurrence in give a legal question and its significance to attending the equivocal act circumstances [Talidano v. [Talidano v. Falcon Maritime, Falcon G.R. No. 172031 Maritime, G.R. (2008)] No. 172031 [2 Regalado 790, (2008)]] 2008 Ed.] [2 Regalado 788, 2008 Ed., citing People v. Siscar, G.R. No. 55649 (1985)] Spontaneous exclamations may have been made before, during or immediately after the startling occurrence equivocal act [2 Regalado 790, 2008 Ed.] AND must be under the stress or excitement caused by the occurrence [Sec. 44, Rule 130]

REMEDIAL LAW

EVIDENCE

Verbal act must have been made at the time, and not after, the equivocal act was being performed [2 Regalado 790, 2008 Ed.]

Sec. 44. Res gestae Statement may be made by the killer himself after or during the killing [People v. Reyes, G.R. Nos. L1846–48 (1949)] OR that of a 3rd person. May precede, accompany or be made after the homicidal attack was committed Justification in the spontaneity of the statement.

Sec. 38. Dying Declaration Can be made only by the victim

Made only after the homicidal attack has been committed

Trustworthiness based upon in its being given in awareness of impending death [2 Regalado 788-789, 2008 Ed.] viii. Records of Regularly Conducted Business Activity Requisites for Admissibility a. Memorandum, report, record or data compilation 1. Of acts, events, conditions, opinions, or diagnoses 2. Made by writing, typing, electronic, optical, or other similar means 3. At or near the time of or from transmission or supply of information b. Entrant had knowledge thereof c. Records are kept in the regular course or conduct of a business activity d. The making of the memorandum, report, record, or data compilation by electronic, optical or similar means is regular practice e. All of the above are shown by the testimony of a custodian or other qualified witness [Sec. 45, Rule 130] Note: Sec. 45 has no counterpart in the previous Rules but it is the exact reproduction of Sec. 2, Rule 8, Rules on Electronic Evidence

Page 512 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

(“Business records as exception to the hearsay rule under the Rules on Electronic Evidence”) If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein [Cang Yui v. Gardner, G.R. No. L-9974 (1916)] Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity [Sapio v. Undaloc Construction, G.R. No. 155034 (2008)] Reason for rule The duty of the employees to communicate facts is of itself a badge of trustworthiness of the entries [Security Bank and Trust Company v. Gan, G.R. No. 150464 (2006)] These entries are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision [LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971 (2010)] ix. Entries in Official Records Requisites for Admissibility a. Entries in official records were made by a public officer in the performance of his/her duties or by a person in the performance of a duty specially enjoined by law [Sec. 46, Rule 130]; b. Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Barcelon, Roxas Securities v. CIR, G.R. 157064 (2006)]; and c. Entries were duly entered in a regular manner in the official records [People v. Mayingque, G.R. No. 179709 (2010)] The trustworthiness of public documents and the value given to the entries made therein could be grounded on: a. the sense of official duty in the preparation of the statement made;

b. the penalty which is usually affixed to a breach of that duty; c. the routine and disinterested origin of most such statements; and d. the publicity of record which makes more likely the prior exposure of such errors as might have occurred [Herce, Jr. v Municipality of Cabuyao, Laguna, GR. No. 166645 (2005)] A sheriff’s return is an official statement by a public official in the performance of a duty specially enjoined by law and is prima facie evidence of the facts therein stated. Being an exception to the hearsay rule, the sheriff need not testify in court as to the facts stated in said return [Manalo v Robles Trans.Co., GR. No. L8171, (1956)] Entries in official records are merely prima facie evidence of the facts therein stated [Sec. 46, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries [People v. Cabuang, G.R. No. 103292 (1993)] Baptismal certificates or parochial records of baptism are not official records [Fortus v. Novero, G.R. No. L-22378 (1968)] x. Commercial Lists and the Like Requisites for Admissibility a. Evidence of statements of matters of interest to persons engaged in an occupation b. Such statements are contained in a list, register, periodical, or other published compilations c. Compilation is published for use by persons engaged in that occupation; and 1. Example: mortality tables, MIMS drug database d. It is generally used and relied upon by them [Sec. 47, Rule 130]

Page 513 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

xi. Learned Treatises

xiii. Residual Exception

Requisites for Admissibility a. Published treatise, periodical or pamphlet is on a subject of history, law, science, or art; and b. Court takes either: 1. judicial notice of it, or 2. a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his/her profession or calling as expert in the subject [Sec. 48, Rule 130] Scientific studies or articles and websites which were culled from the internet, attached to the Petition, and were not testified to by an expert witness are basically hearsay in nature and cannot be given probative weight. [Paje v. Casiño, G.R. No. 207257 (2015)] xii. Testimony or Deposition at a Former Trial Requisites for Admissibility a. Witness is dead, out of the Philippines or with due diligence cannot be found therein, unavailable, or unable to testify; b. The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; c. Former case involved the same subject as that in the present case although on different causes of action; d. Issue testified to by the witness in the former trial is the same issue involved in the present case; and e. Adverse party had the opportunity to crossexamine the witness in the former case [Sec. 49, Rule 130] Inability to testify (meaning and standard) The inability of the witness to testify must proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. Mere refusal shall not suffice [Tan v. C.A., G.R. No. L-22793 (1967)]

Requisites for admissibility a. Statement not specifically covered by any of the foregoing exceptions; b. Has the equivalent circumstantial guarantees of trustworthiness c. The court determines that: 1. the statement is offered as evidence of a material fact; 2. it is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and 3. the general purposes of these rules and the interests of justice will be best served by its admission d. Proponent makes known to the adverse party, sufficiently in advance of the hearing or by the pre-trial stage in case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and its particulars, including the name and address of the declarant [Sec. 50, Rule 130] Note: This is a new provision under the Amended Rules. OTHER EXCEPTIONS OUTSIDE THE RULES OF COURT a. Affidavit in the Rules of Summary Procedure - shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose [Sec. 14, Rules on Summary Procedure] b. Under the Rule on Examination of a Child Witness, hearsay exception in child abuse cases [see Sec. 28]

d. Independently Statements (IRS)

Relevant

Statements or writings attributed to a person not on the witness stand, which are being offered not to prove the truth of the facts stated

Page 514 of 525

U.P. LAW BOC

therein, but only to prove that such were actually made. These are not covered by the hearsay rule [People v. Cusi, G.R. No. L-20986 (1965)] These are statements which are relevant independently of whether they are true or not [Estrada v. Desierto, G.R. No. 146710 (2001)] Two classes of independently relevant statements: 1. Statements which are the very facts in issue, and 2. Statements which are circumstantial evidence of the facts in issue. They include the following: a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness [Estrada v. Desierto, G.R. No. 146710 (2001)]

6. Opinion Rule Opinion is an inference or conclusion drawn from facts observed [Black’s Law Dictionary] General rule: The opinion of witness is not admissible [Sec. 51, Rule 130] Exceptions: a. Expert witness [Sec. 52, Rule 130] b. Ordinary witness [Sec. 53, Rule 130]

a. Opinion of Expert Weight given

REMEDIAL LAW

EVIDENCE

Witness;

The opinion of a witness on a matter requiring special knowledge, skill, experience, training, or education, which he/she shown to possess, may be received in evidence [Sec. 52, Rule 130] Expert witness is one who has made the subject upon which he gives his opinion a matter of particular study, practice or observation and he must have particular and special knowledge on the subject [People v. Dekingco, G.R. No. 87685 (1990)] ADMITTING EXPERT TESTIMONY Question in admitting expert testimony Whether the opinion called for will aid the fact finder in resolving an issue, or whether the judge is as well qualified as the witness to draw its own or his own deductions from the hypothetical facts [Herrera] Court discretion to exclude or include expert evidence If men of common understanding are capable of comprehending the primary facts and drawing correct conclusions from them, expert testimony may be excluded by the Court [Herrera] Competency of witness is a preliminary question before testimony is admitted It must be shown that the witness is really an expert; determination of competency is a preliminary question [Herrera] The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its discretion. The test of qualification is necessarily a relative one, depending upon the subject matter of the investigation, and the fitness of the expert witness. In our jurisdiction, the criterion remains to be the expert witness' special knowledge, experience and practical training that qualify him/her to explain highly technical medical matters to the Court. It is the specialist's knowledge of the requisite subject matter, rather than his/her

Page 515 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

specialty that determines his/her qualification to testify. [Casumpang v. Cortejo, G.R. No. 171127 (2015)] EXAMINING AN EXPERT WITNESS Mode of examination of expert witness He may base his opinion on the basis of hypothetical questions where the facts are presented to him hypothetically, and on the assumption that they are true, formulates his opinion on this hypothesis [Herrera] The lack of personal examination and interview of the respondent, or any other person diagnosed with personality disorder, does not per se invalidate the testimonies of the doctors. Neither do their findings automatically constitute hearsay that would result in their exclusion as evidence. Within their acknowledged field of expertise, doctors can diagnose the psychological make up of a person based on a number of factors culled from various sources. [Camacho-Reyes v Reyes, G.R. No. 185286 (2010)] How to present an expert witness 1. Introduce and qualify the witness; 2. Let him give his factual testimony, if he has knowledge of the facts; 3. Begin the hypothetical question by asking him to assume certain facts as true; 4. Conclude the question, by first asking the expert if he has an opinion on a certain point 5. assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point; 6. After he has stated his opinion, ask him to give his reasons. Weight given to expert testimony Courts are not bound by the findings or opinions of the expert. Their evidence is not conclusive, but merely advisory.

b. Opinion of Ordinary Witness The opinion of an ordinary witness is admissible:

1. If proper basis is given, and 2. Regarding: a. Identity of a person about whom he/she has adequate knowledge; b. Handwriting with which he/she has sufficient familiarity; c. Mental sanity of a person with whom he/she is sufficiently acquainted; and d. Impressions of the i. emotion, ii. behavior, iii. condition, or iv. appearance of a person [Sec. 53, Rule 130] IDENTITY OF A PERSON ABOUT WHOM HE HAS ADEQUATE KNOWLEDGE Statements of a witness as to identity are not to be rejected because he is unable to describe features of the person in question [Herrera] Identification by voice is recognized by the courts, especially in a case where it was impossible to see the accused but the witness has known the accused since their childhood [Herrera, citing US v. Manabat] HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY The ordinary witness must be acquainted with the characteristics of the handwriting of a person. He may only draw on the knowledge which he already has, and which enables him to recognize the handwriting. Only experts are allowed to give conclusions from the comparison of samples of handwriting of a person whose handwriting he is not familiar with [Herrera] MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY ACQUAINTED These are allowed where the witness can adequately describe the actions, looks or symptoms of a person’s sanity or insanity which is impossible for the court to determine [Herrera]

Page 516 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

IMPRESSIONS OF THE EMOTION, BEHAVIOR, CONDITION OR APPEARANCE OF A PERSON The rule recognizes instances when a witness may be permitted to state his inferences that are drawn from minute facts and details which the witness cannot fully and properly describe in court. Such expressions are expressed to the countenance, the eye and the general manner and bearing of the individual; appearance which are plainly enough recognized by a person of good judgment, but which he cannot otherwise communicate by an expression of results in the shape of an opinion [Herrera, citing US case Hardy v. Merill]

7. Character Evidence Note: There are substantial changes in this part in the 2019 Revised Rules Character distinguished from reputation 'Character' is what a man is, and 'reputation' is what he is supposed to be in what people say he is. 'Character' depends on attributes possessed, and 'reputation' on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present [Lim v. C.A., G.R. No. 91114 (1992)]. General rule: Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion [Sec. 54, Rule 130] Exceptions: a. Criminal cases [Sec. 54(a), Rule 130] b. Civil case [Sec. 54(b), Rule 130] c. In both civil and criminal cases [Sec. 54(c), Rule 130] 1. Evidence of good character of witness is not admissible until such character has been impeached 2. When the character or trait of character is an essential element of a charge, claim or defense

a. Criminal Cases 1. Accused – May prove his/her good moral character, which is pertinent to the moral trait involved in the offense charged. 2. Prosecution – May not prove the bad moral character of the accused, except in rebuttal. 3. Offended Party –May be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. [Sec. 54, Rule 130] Good moral character of accused The purpose of presenting evidence of good moral character is to prove the improbability of his doing the act charged. The accused may prove his good moral character only if it is pertinent to the moral trait involved in the offense charged [Herrera] Bad moral character of accused in rebuttal Unless and until the accused gives evidence of his good moral character the prosecution may not introduce evidence of his bad character [Herrera, citing People v. Rabanes, G.R. No. 93709 (1992)] Character evidence must be limited to the traits and characteristics involved in the type of offense charged. Thus: ● on a charge of rape: character for chastity ● on a charge of assault: character for peaceableness or violence ● on a charge of embezzlement: character for honesty [CSC v. Belagan, G.R. No. 132164 (2004)] Proof of the bad character of the victim is not admissible: ● In a murder case: If the crime was committed through treachery and evident premeditation [People v. Soliman, G.R. No. L-9723 (1957)] ● In a rape case: If through violence and intimidation [People v. Blance, G.R. No. 20063, (1923)]

Page 517 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Rape Shield Rule In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds that such evidence is material and relevant to the case [Sec 6, R.A. 8505] Sexual Abuse Shield Rule The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim [Sec 30, Rule on Examination of a Child Witness]

b. Civil cases

8. Judicial Affidavit Rule [A.M. 12-8-8-SC] a. Scope Where Applicable Applies to all actions and proceedings, and incidents requiring the reception of evidence before: 1. Courts (but not to small claims cases) 2. Investigating officers and bodies authorized by the SC to receive evidence, including the IBP 3. Quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule [Sec. 1]

Moral character is admissible only when pertinent to the issue of character involved in the case [Sec. 54(b), Rule 130]

c. Criminal and civil cases Evidence of the witness’ good character is not admissible until such character has been impeached In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by: 1. Testimony as to reputation; or 2. Testimony in the form of an opinion On cross-examination, inquiry is allowable into relevant specific instances of conduct. In cases where the character or trait of character is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. [Sec. 54(c), Rule 130]

b. Submission in lieu of direct testimony 1. The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following a. The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and b. The parties' documentary or object evidence, if any, shall be marked and attached to the judicial affidavits 2. Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. This is without

Page 518 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. [Sec. 2]

c. Contents Shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino [Sec. 3] 1. The name, age, residence or business address, and occupation of the witness 2. The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held 3. A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury 4. Questions asked of the witness and his corresponding answers, consecutively numbered, that a. Show the circumstances under which the witness acquired the facts upon which he testifies b. Elicit from him those facts which are relevant to the issues that the case presents; and c. Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court 5. The signature of the witness over his printed name 6. A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same [Sec. 3] 7. A sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: a. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and

b. Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. [Sec. 4]

d. Offer and objection Offer of and objections to testimony in judicial affidavit 1. The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. 2. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. 3. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court. [Sec. 6] Examination of the witness on his judicial affidavit 1. The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. 2. The party who presents the witness may also examine him as on re-direct. 3. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. [Sec. 7] Oral offer of and objections to exhibits 1. Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating

Page 519 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

the purpose or purposes for which he offers the particular exhibit. 2. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. 3. Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. [Sec. 8]

documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. [Sec. 9]

f. Effect of non-compliance Non-compliant behavior

Deemed to have waived their submission

e. Application in criminal cases This Judicial Affidavit Rule shall apply to all criminal actions: 1. Where the maximum of the imposable penalty does not exceed six years; 2. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or 3. With respect to the civil aspect of the actions, whatever the penalties involved are [Sec. 9] Procedure 1. The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies ·of the same upon the accused. 2. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. 3. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. 4. If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his

Consequence

Party’s failure to submit

Witness’ failure to appear at the scheduled hearing Counsel’s failure to appear

Noncompliance with content and attestation requirements

[Sec. 10]

Page 520 of 525

Note: Court may allow, only once late submission, provided 1. the delay (a) is for a valid reason, (b) would not prejudice the opposing party and 2. the defaulting party pays a fine. Affidavit shall not be considered by the court Deemed to have waived his client’s right to crossexamine the witnesses there present Judicial affidavit cannot be admitted as evidence The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided 1. the delay (a) is for a valid reason, (b) would not prejudice the opposing party and 2. the defaulting party pays a fine.

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Issuance of Subpoena If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte [Sec. 5]

Evidence not formally offered may be admissible when two essential conditions concur: a. the same must have been duly identified by testimony duly recorded and, b. the same must have been incorporated in the records of the case [Star Two v. Ko, G.R. No. 185454 (2011)]

Adverse party witnesses and hostile witnesses are excluded since they are not covered by Sec. 5 [Tam v. China Banking Corporation, G.R. No. 214054 (2015)]

As Distinguished from Identification of Documentary Evidence Identification of Formal Offer of Documentary Evidence Evidence Done in the course Done only when the of the trial and party rests his/her accompanied by the case marking of the evidence [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

There is nothing in the provisions of the Judicial Affidavit Rule, which prohibits a defendant from filing a demurrer to evidence, if he truly believes that the evidence adduced by the plaintiff is insufficient. [Lagon v. Velasco, G.R. No. 208424 (2018)]

Why Formal Offer is Necessary Parties are required to inform the courts of the purpose of introducing their respective exhibits to assist the latter in ruling on their admissibility in case an objection thereto is made. [Star Two v. Ko, G.R. No. 185454 (2011)]

The provisions of the Rules of Court and other rules of procedure in the investigative or quasijudicial bodies covered by this rule are repealed or modified insofar as these are inconsistent with the provisions of this Rule [Sec. 11]

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party. [Parel v. Prudencio, G.R. 146556 (2006).

F.

OFFER AND OBJECTION

No evidentiary value can be given to pieces of evidence not formally offered [Dizon v. CTA, G.R. No. 140944 (2008)]

1. Offer of Evidence General rule: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified [Sec. 34, Rule 132] Exception:

However, where the absence of an offer of testimonial evidence was not objected to as when the witness was cross-examined by the adverse party despite failure to make an offer of the testimony, the court must consider the testimony.

Page 521 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

The provisions of the ROC on the inclusion n appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such pleadings or documents not offered at the hearing of the case [Candido v. C.A., G.R.No. 107493 (1996)] When Formal Offer is NOT Required a. In a summary proceeding because it is a proceeding where there is no full-blown trial; b. Documents judicially admitted or taken judicial notice of; @ c. Documents, affidavits, and depositions used in rendering a summary judgment; d. Documents or affidavits used in deciding quasi-judicial or administrative cases [Bantolino v. Coca Cola Bottlers, G.R. No. 153660 (2003)] e. Lost objects previously marked, identified, described in the record, and testified to by witness who had been subjects of crossexamination in respect to said objects [Tabuena v. C.A., G.R. No. 85423 (1991), citing People v. Napat-a, G.R. No. 84951 (1989)] [Riano 343, 2016 Ed.] f. When duly identified in a testimony duly recorded and it was incorporated in the records of the case [Vda. de Oate v. C.A., G.R. No. 116149 (1995)]

2. When to Make an Offer Kind of evidence

When to offer

At the time the witness is called to testify After the presentation of a Documentary party’s testimonial and Object evidence [Sec. 35, Rule 132] Testimonial

The party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the party’s documentary or object evidence waived [Heirs of Pasag v. Sps. Parocha, G.R. No. 155483 (2007)] Manner of Offer ALL evidence must be offered orally [Sec. 35, Rule 132] Note: This is a revision under the 2019 Revised Rules. The Court shall consider the evidence solely for the purpose for which it is offered, not for any other purpose [Spouses Ragudo v Fabella Estate Tenants Association, Inc., G.R. No. 146823, (2005)].

Evidence can be considered only for the purposes it was specifically offered [Republic v Reyes-Bakunawa, G.R. No. 180418 (2013)]

3. Objection

Waiver of Right to Make Formal Offer It is deemed waived by a party if it fails to submit within a considerable period of time its formal offer [Heirs of Pasag v. Parocha, G.R. No. 155483 (2007)]

Concept When a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal [People v. Diaz, G.R. No. 197818 (2015)]

A party is not deemed to have waived objection to admissibility of documents by his failure to object to the same when they were marked, identified and then introduced during the trial. This is because objection to documentary evidence must be made at the time it is formally offered and not earlier [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

Purposes of Objection 1. Made to keep out inadmissible evidence that would cause harm to client’s cause (rules of evidence are not self-operating); 2. To protect the record (for future appeal); 3. To protect witness from being embarrassed or harassed; 4. To expose adversary’s unfair tactics;

Page 522 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

5. To give trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and 6. To avoid a waiver of inadmissibility [Riano]

questions being propounded are of the same class as those to which objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his/her continuing objection to such class of questions [Sec. 37, Rule 132]

Objections must be specific enough to adequately inform the court the rule of evidence or of substantive law that authorizes the exclusion of evidence [Riano]

A court may, motu proprio, treat the objection as a continuing one [Keller v. Ellerman & Bucknall Steamship, G.R. No. L-12308 (1918)]

MANNER Objection to offer of evidence must be made ORALLY immediately after the offer is made [Sec. 35, Rule 132] When to Object What to object to When to object Testimony of a Immediately as soon witness for lack of as the witness formal offer begins to testify A question Must be made as propounded in the soon as the grounds course of oral become reasonably examination apparent The grounds for objection must be specified in any case. [Sec. 36, Rule 132] Waiver of Objection When there is failure to point out some defect, irregularity or wrong in the admission or exclusion of evidence. Such failure may take various forms and may either be expressed or implied [Riano 353, 2016 Ed.] Effect of waiver Although hearsay evidence may be admitted because of lack of objection, it is nonetheless without probative value, unless the proponent can show that the evidence falls within the exception to the hearsay evidence rule [Bayani v. People, G.R. No. 155619 (2007)]

4. Repetition of an Objection When it becomes reasonably apparent in the course of examination of a witness that the

Objection prior to the formal offer is premature and could not be considered by the Court as basis for a continuing one [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)] Where a continuing objection had been interposed on prohibited testimony, the objection is deemed waived where the objecting counsel cross-examined the witness on the very matters subject of the prohibition [De Abraham v. Recto-Kasten, G.R. No. L16741 (1962)]

5. Ruling General rule: The ruling of the court must be given immediately after the objection is made. Exception: The court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. [Sec. 38, Rule 132] A reasonable time must not extend beyond the ninety (90)-day reglementary period from the date of submission of the formal offer of evidence [Beltran v. Paderanga, AM No. RTJ03-1747 (2003)] The reason for sustaining or overruling an objection need not be stated. However, 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/s relied upon [Sec. 38, Rule 132]

Page 523 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

Reservation of a ruling by the court on an objection to the admissibility of evidence, without subsequently excluding the same, amounts to a denial of an objection [People v. Tavera, G.R. No. L-23172 (1925)] No Express Ruling Needed The trial court need not make an express ruling admitting the exhibits if there is no objection interposed to their admission [Herrera, citing Boix v. Rivera, CA Rep. 2d 104] The ruling of the court is required only when there is an objection to a question or to the admission of an exhibit [Herrera] Objections based on irrelevancy and immateriality need no specification or explanation. Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case [CruzArevalo v. Querubin-Layosa, AM No. RTJ-062005 (2006)]

6. Striking Out an Answer Motion to Strike A motion to strike out goes to admissibility and not to weight; evidence should not be stricken out because of its little probative value [Herrera] 1. Court may sustain an objection and order the answer, testimony, or narration to be stricken off the record if: a. the witness answers the question before the adverse party had the opportunity to object; b. a question is not objectionable, but the answer is not responsive; c. the witness testifies without a question being posed; d. the witness testifies beyond limits set by the court; or e. the witness does a narration instead of answering the question; AND f. such objection is found to be meritorious. 2. The court may also, upon motion, order the striking out of answers, which are

a. incompetent, b. irrelevant or c. otherwise improper [Sec. 39, Rule 132] Motion to strike out should specify objection A motion to strike out should specify the objection as well as the portion of the evidence which is objected to [Herrera]

7. Tender of Excluded Evidence The procedure in Section 40 is known as the offer of proof or tender of excluded evidence and is made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case [Cruz-Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005 (2006)] The SC had advised trial courts to allow the rejected [documentary] evidence to be attached to the record to enable the appellate court to examine the same and determine whether the exclusion of the same was proper or not [Herrera, citing Banez v. C.A., G.R. No. L-30351 (1974)] If an exhibit sought to be presented in evidence is rejected, the party producing it should ask the courts permission to have the exhibit attached to the record. Any evidence that a party desires to submit for the consideration of a higher court must be formally offered by him otherwise it is excluded and rejected and cannot even be taken cognizance of on appeal [Catacutan v. People, G.R. No. 175991 (2011)] Before tender of excluded evidence is made, the evidence must have been formally offered before the court. And before formal offer of evidence is made, the evidence must have been identified and presented before the court [Yu v. C.A., G.R. No. 154115 (2005)]

Page 524 of 525

U.P. LAW BOC

REMEDIAL LAW

EVIDENCE

How to Tender Evidence Kind of How to tender the evidence evidence Offeror may have the same Documentary attached or made part of the record Offeror may state for the record the name and other personal circumstances of Testimonial the witness and the substance of the proposed testimony [Sec. 40, Rule 132]

case. Any such opportunity, however, for the ultimate purpose of the admission of additional evidence is already addressed to the sound discretion of the court [Republic v. Sandiganbayan, G.R. No. 152375 (2011)

Rationale 1. to allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and 2. even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal [Riano 360, 2016 Ed.] Two Methods of making the Tender 1. Where the counsel tells the court what the proposed testimony would be; 2. By using the question and answer form [Riano 361-362, 2016 Ed.] Erroneous Way of Making Tender To make a mere general “offer of proof” without producing the witness or stating the evidence where by the fact in issue is to be proved [Riano 364, 2016 Ed., Douillard v. Wood, 20 C2d 670, 128 P2d 6 (1942)] Harmless error rule In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigants. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party [People v. Teehankee, G.R. No. 111206 (1995)] The Rules of Court does not prohibit a party from requesting the court to allow it to present additional evidence even after it has rested its Page 525 of 525

Related Documents


More Documents from ""